Court File and Parties

COURT FILE NO.: 20235 / 08 & 20276 /08
DATE: 2012/10/24
SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Horst B. Minkofski, Objector / Plaintiff

AND:

The Estate of Helmtrud M. Dost, Defendant

BEFORE: Master MacLeod

APPEARANCES:
Horst B. Minkofski, in person, (by telephone)
Christopher A. Moore, Counsel, for the Estate Trustees

HEARD: October 3, 2012

REASONS FOR DECISION

[ 1 ] This proceeding concerns the validity of the will of Helmtrud M. Dost. The estate trustees bring a motion for summary judgment in which they seek to dismiss the objection filed by Horst Minkofski and an order permitting the administration and distribution of the estate in accordance with the will.

[ 2 ] For the reasons that follow, the court holds that there is no genuine issue requiring a trial and the moving parties are entitled to judgment. The evidence establishes the validity of the will and fails to show that there is merit to the objection. Consequently a judgment will issue dismissing the objection, declaring the validity of the will and permitting the letters of administration to issue.

Background

[ 3 ] The will in question was made in November of 2000 at a time when the testator was beginning to show signs of cognitive impairment. The following March a physician determined that she had become incompetent to manage her affairs and from that time until her death in May of 2008 her finances were managed under power of attorney. The question naturally arises whether she was competent to make a will at the time it was executed?

[ 4 ] Horst Minkofski is the only son of the deceased testator from whom he was estranged in his late teens. Under the will he is to receive a bequest of $200.00. In the case of intestacy he would be the sole beneficiary. The value of the estate is approximately $250,000.00. I note that in addition to challenging the will itself, Mr. Minkofski also believes the estate should be much larger. He believes it was mismanaged by the estate trustees when they were acting under powers of attorney but that is not an issue that is formally before the court and in any event it is not germane to the motion.

[ 5 ] The question on the motion is whether or not the moving party can meet the test for summary judgment. Mr. Minkofski is self represented and at his request he was allowed to attend court by telephone. The availability of summary judgment is governed by Rule 20 of the Rules of Civil Procedure. I will describe the rule and the test for granting summary judgment in more detail below.

Procedural History

[ 6 ] It is useful to briefly summarize the procedural history. There was a hiatus of more than two years in which the litigation sat in procedural limbo. More recently it has been case managed.

[ 7 ] As noted above, the testator passed away in May of 2008. Her will names Alain Brunet and June Charron as estate trustees. There are certain minor bequests of money and property to organizations and individuals (including Mr. Minkofski). The residual beneficiary is Georgie Susak who was a friend of the deceased.

[ 8 ] On October 7, 2008 Alain Brunet filed an “Application for Appointment of Estate Trustee With a Will”. [1] It was assigned court file number 20235 / 08. On October 16, 2008 Mr. Minkofski filed a Notice of Objection. That proceeding was assigned court file number 20276 / 08 [2] . In the notice of objection, Mr. Minkofski alleges incapacity, undue influence and mismanagement of the estate as reasons why the Letters of Administration should not be allowed to issue.

[ 9 ] In accordance with the Rules the estate then served a “Notice to Objector” on Mr. Minkofski and he in turn filed a “Notice of Appearance”. That took place in June of 2009. In July of 2009 Mr. Minkofski obtained an order directing the trustees to file a statement of the assets of the estate. He apparently made attempts to obtain other orders but these were dismissed by judges of this court as being irregular. The objector did not bring a motion for directions within 30 days as he was required to do by Rule 75.05 (4). [3]

[ 10 ] Nothing substantial was done for the next two years. Finally, on October 26 th , 2011 Mr. Minkofski did bring a motion for directions before a judge. That motion record contained three affidavits which I will deal with momentarily and sets out the reasons for the notice of objection. The matter came on for a hearing before the Honourable Mr. Justice McNamara. He declined to deal with a complex matter by telephone and he directed that the matter proceed before the master on a date to be fixed. Accordingly the matter came before me on December 12 th , 2011.

[ 11 ] At that time the court made orders appointing the estate trustees as “estate trustees during litigation” pursuant to Rule 74.10. At Mr. Minkofski’s request there was also an order for production of the medical records of the deceased for three years prior to the making of the will and one year afterwards.

[ 12 ] Ordinarily there would also have been an order constituting Mr. Minkofski as the plaintiff and the estate as the defendant, and perhaps requiring the plaintiff to deliver a statement of claim. At a hearing for directions there might also be an order for mediation, trial of an issue, exchange of pleadings or other procedural steps. The court did not require these steps at that time because Mr. Moore did not want the assets of the estate to be utilized to fund what might ultimately prove to be unnecessary procedural steps.

[ 13 ] A further hearing for directions was scheduled for January 23 rd , 2012. On that date it appeared the medical records had not been sent because the doctor required payment of $150.00. Mr. Minkofski advised that he could not afford to pay this amount and disclosed that he had been granted a fee waiver by the Registrar. Accordingly I made an order for the release of funds from the estate so the medical records could be copied and Mr. Minkofski would have an opportunity to review them.

[ 14 ] Once Mr. Minkofski obtained the medical file he advised that he would be persisting with his objection. He continued to assert incapacity of the testator and undue influence. In response, Mr. Moore advised that he would be bringing a motion for summary judgment and the motion was then scheduled. Just prior to the scheduled hearing date, Mr. Minkofski sought permission to proceed by telephone. This was granted and the motion proceeded accordingly with Mr. Moore present in person and Mr. Minkofski present by way of “Polycom” speaker phone from his home in British Columbia.

[ 15 ] For purposes of Rule 20, Mr. Minkofski should be regarded as the plaintiff and the estate as the defendant. The notice of objection and the original motion record contain the disputed allegations and may be treated as if the allegations were set out in a statement of claim. Estate proceedings are governed by the Rules of Civil Procedure and summary judgment is available. [4]

The facts and the evidence on behalf of the estate

[ 16 ] The deceased testator immigrated to Canada from Germany in 1958 to live with the man who eventually became her husband, a person named J.J. Dost. She immigrated with her son who is now the objector and at the time was 11 years old. When Mr. Minkofski was in his teenage years, mother and son became estranged. There was no contact between the two for more than 40 years prior to her death.

[ 17 ] At the time she made her will Mrs. Dost was a widow and a retired social worker. June Charron was her friend and a former social work colleague. In October of 2000 Ms. Charron contacted Mr. D. Lewis McCowell on behalf of Mrs. Dost indicating that her friend was in need of legal services. Mr. McCowell is a lawyer practicing in Ottawa in the area of wills and estates. Affidavits have been sworn in support of this motion by Mr. McCowell, by Ms. Charron and by Alain Brunet who is the other estate trustee and was the owner of the retirement home where Mrs. Dost lived at the time of her death.

[ 18 ] According to the evidence, when Ms. Charron contacted Mr. McCowell, Mrs. Dost was living more or less independently in her own home and was 75 years of age but her health was beginning to deteriorate and she was showing signs of cognitive impairment. She had suffered a number of falls and sustained fractures. The purpose of the call was to inquire about powers of attorney and a will.

[ 19 ] On October 23, 2000 Mr. McCowell met with Mrs. Dost at her home. He asked her to explain to him the purpose of a power of attorney which she did to his satisfaction. In particular she advised Mr. McCowell that she needed to have documents in place to allow others to make decisions for her if she could not do so. She was also able to discuss her assets and property. Powers of Attorney for Property and for Personal Care were executed at that time. The Powers of Attorney were only to come into effect in the event of incapacity.

[ 20 ] Mr. McCowell also advised Mrs. Dost about the laws of intestacy and the importance of a will. In particular he advised her that in the case of an intestacy, her son would be the beneficiary of her estate. Mrs. Dost advised Mr. McCowell that was not her wish and indicated she wished to prepare a will. She was concerned amongst other matters to allocate certain personal effects amongst friends and family and to ensure that someone would look after her dog.

[ 21 ] On November 2, 2000 Mr. McCowell received a handwritten letter from Mrs. Dost outlining her thoughts about distribution of her estate upon her death. A copy of that letter is in evidence and it is consistent with the will as ultimately drafted. Indeed, as pointed out by Mr. Moore, the letter is itself sufficiently detailed that it could be regarded as a holograph will. In that letter, Mrs. Dost also indicated she wished to amend the Powers of Attorney to replace one of the co-attorneys.

[ 22 ] The letter was hand written and specific. With respect to Mr. Minkofski, the letter contained the following:

“To my only son, who has not shown any compassion for his mother, I bequest the sum of $200.00”

[ 23 ] Mr. McCowell had a subsequent telephone conversation with Mrs. Dost and on November 16 th , 2000 Mrs. Dost attended at Mr. McCowell’s office to review and execute the will. Ms. Charron accompanied her to the office but was not present when Mr. McCowell reviewed the draft document with the testator or when the will was executed. The will together with new Powers of Attorney were executed at that time.

[ 24 ] Mr. McCowell has sworn that he was fully satisfied the testator knew what she was signing and had testamentary capacity. He spoke to the testator privately and he saw no signs of undue influence. Following execution of the documents, he sent a reporting letter and a copy of the will. On December 1, 2000 Ms. Dost wrote to Mr. McCowell thanking him for his assistance and enclosing payment of his account. The letter is also in evidence and was also in her handwriting.

[ 25 ] Although June Charron was left certain furniture in the will and appointed co-executor together with Alain Brunet, Ms. Charron is not a principle beneficiary. The residual beneficiary is Georgie Susak, another friend of the testator. Mr. Brunet, who was the owner and manager of the residence where she eventually went to live, is named as co-trustee. He is not a beneficiary although there was a bequest of beds and other furniture to the Parklane Residence and $1,000 to the Parklane Residence Recreation Association. The objector alleged a romantic relationship between Ms. Susak and Mr. Brunet but Mr. Brunet has sworn that is not true. In fact he did not know Ms. Susak until he read her name in the will after the death of Mrs. Dost.

[ 26 ] On February 16, 2001 Dr. Linda Gobesi, a geriatric psychiatrist, performed a cognitive assessment of Mrs. Dost. The doctor concluded that Mrs. Dost was no longer capable of living independently, that she could not manage her finances and could not appropriately make decisions about her living arrangements. On this basis the powers of attorney were activated and Mr. McCowell released them from his vault. Mrs. Dost then went to live at Billings Lodge and her finances were managed by her attorneys until her death on May 26 th , 2008.

[ 27 ] The estate appears to consist of the sum of $236,803.27 now held on deposit at Canada Trust together with accrued interest.

The evidence of the objector

[ 28 ] Unless it can be successfully challenged, the evidence provided on behalf of the estate trustees is sufficient to establish the validity of the will. In responding to it, the objector need not conclusively persuade the court that he will succeed at trial but need only show that there is a genuine question requiring a trial for resolution. Rule 20.02 (2) reads as follows:

(2) In response to affidavit material or other evidence supporting a motion for summary judgment, a responding party may not rest solely on the allegations or denials in the party’s pleadings, but must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue requiring a trial.

[ 29 ] The first thing to observe is the fact that the objector did not comply with the rule. He did not file any affidavit in response to the motion. What he did file was a document entitled “Factum III”. He clearly understood the necessity of responding to the arguments advanced by the moving party but he also made certain unwarranted assumptions. For example he assumed that the earlier motion record would automatically be before the court and he assumed that because the medical records had been ordered produced a copy would be available to the court.

[ 30 ] The court is obliged to make some allowances for parties who for various reasons are not represented by counsel. Specifically the court should not allow minor technical defects to stand in the way of a just result. A self represented party may have to be specifically directed to applicable rules and may require additional time to correct missteps. On the other hand, the court must still maintain balance and fairness to all parties. [5] Indulgences and allowances for parties without counsel cannot extend to complete disregard of the Rules of Civil Procedure nor of the rules of evidence.

[ 31 ] To be scrupulously fair to Mr. Minkofski I have treated the following evidence as if it had been filed in opposition to the motion:

a. The affidavits contained in the motion record dated June 11, 2011 and used on the motion of October 26, 2011 before McNamara J.;

b. The letter dated August 30, 2012 signed by Dr. Eugene Murphy of Vancouver and included in “Factum III”; and,

c. The medical records from Appletree Medical produced to Mr. Minkofski in accordance with the court order. [6]

[ 32 ] Dealing firstly with the letter from Dr. Murphy and disregarding for the moment that the letter is unsupported by any affidavit, it is a one sentence letter on “Granville Medical Clinic” letterhead addressed “to whom it may concern” which simply states as follows:

“On reviewing the medical notes of this patient, it is evident that she was not competent to make her will, November 16 th , 2000.”

[ 33 ] This letter can be given no weight at all. It certainly cannot be admitted as an expert opinion. Without attempting a comprehensive catalogue of the reasons for this, there is no statement of what qualifications Dr. Murphy possesses or even if he is a physician. The letter does not specify what “medical notes” he reviewed, whether he has seen them all, whether he was aware of the evidence given by the witnesses in support of the will, or what specific information in the medical records causes him to reach this conclusion. In addition, the letter contains no indication that the doctor has turned his mind to what cognitive capacity is required to make a valid will and he has not certified that he is aware of his obligation as an expert to provide evidence that is fair, objective and non partisan. [7] Taken at its highest this letter shows that the objector may be able to obtain a an opinion from a health practitioner that is supportive of his position based on a review of Mrs. Dost’s medical records.

[ 34 ] Mr. Minkofsky’s own affidavit is of very little assistance with respect to the question of competence to make a will in November of 2000. First and foremost Mr. Minkofski lacks any current firsthand knowledge of his mother’s level of cognitive ability. To be clear, Mr. Minkofsky had no contact with his mother after he left home in the 1960s. He confirmed at the motion that he has no direct knowledge of her mental state or condition or her wishes or intentions. He had no contact with her for at least 40 years prior to her death. Accordingly there is almost nothing in his affidavit which is based on temporally relevant firsthand knowledge.

[ 35 ] Several paragraphs of the affidavit are taken up with what are really demands for information concerning the handling of the estate prior to death by the attorneys-in-fact. Much of the affidavit consists of opinion or supposition. The entire affidavit is animated by antipathy towards the deceased.

[ 36 ] Mr. Minkofski assails the lack of judgment and the poor parenting decisions he believes his mother made in the 1950s and 60s by uprooting him from Germany, failing to fight a school suspension and pressuring him to join the military. His view is that his mother was always easily confused about money matters. As an example the following may be found in paragraph 13 of the affidavit:

“She really was unbearably ignorant when it came to anything but her job, housekeeping, and music. I guess they didn’t teach arithmetic back when she went to school. This is an example showing that her financial acumen was below an acceptable standard, or close to non-existant. And it can only have gotten worse with the onset and continuation of Alzheimer’s.”

[ 37 ] That paragraph refers to a time after the family arrived from Germany in 1958 and before Ms. Dost actually married the objector’s step father, J.J. Dost. Other supposition contained in the affidavit such as the speculation that the residual beneficiary is married to one of the estate trustees is simply incorrect. The source of Mr. Minkofsky’s information and belief regarding his mother’s mental capacity in 2000 or undue influence allegedly exercised by Ms. Charron at the time the will was made is not specified.

[ 38 ] There is an affidavit of Carole Dost who is Mr. Minkofsky’s step sister and the step daughter of the deceased (who she referred to as “Aunt Helen”). This affidavit does contain certain first hand observations. She was in direct contact with the testator for many years prior to her death. She deposes that incidents of confusion and lack of personal care were apparent as early as 1993.

[ 39 ] While the affidavit leaves no doubt about Carole Dost’s belief that the testator could not have been competent, it is difficult to find specific factual observations relative to November of 2000. She deposes that “I feel confident stating that she was absolutely not capable of making sound decisions at all at said time period and on November 16, 2000.” She describes a few incidents when the testator was confused or made poor decisions or seemed to forget that her husband was deceased. Unfortunately these incidents are not identified by dates or other specifics and at least one of the incidents is after the making of the will. The affidavit is marked by opinions such as “I realized she must have full blown Alzheimer’s”.

[ 40 ] Very apparent in this affidavit is active dislike of June Charron who she describes as “disingenuous, if not outright dishonest”. She describes a visit by June Charron and the testator to the lawyer’s office in April of 2001. She then speculates that some changes must have been made to the will after the fact. There is no evidence to support this incredible supposition. The declaration of incapacity had been made known to Mr. McCowell on March 5, 2001 for the purpose of activating the powers of attorney. There is nothing overtly sinister about Ms. Charron (one of the attorneys) and the testator visiting his office in April.

[ 41 ] It should be noted that Carole Dost did not herself file a notice of objection or a notice of appearance though she was served and is aware of the proceeding. She has not made herself a party to this proceeding and has no standing other than that of a witness. She is a beneficiary under the will as she was left $300.00.

[ 42 ] The third affidavit is from Gerlind Silla who lives in Germany and is the niece of the deceased. This affidavit is to the effect that in July and August of 1999 the testator “was showing pronounced effects of Alzheimer’s” and was “so confused” that she and another person were of the opinion she should go into a home. This of course is an opinion rather than an observable fact. The factual observations include “moderate memory loss”, “difficulty grasping amounts and values”, “moderate difficulty with time relationships” and “geographic disorientation”. There are specifics about poor housekeeping and personal care but few specifics about the gravity or continuity of episodes of confusion or disorientation. Ms. Silla felt it was inappropriate for Mrs. Dost to be relying on a young woman, Noella Papas, to assist her with banking. She describes a deterioration in the level of housekeeping, quality and clarity of speech, food preparation and personal care. This affidavit is the strongest evidence tendered by the objector because it does contain direct observations by someone who spent time with the testator a year before she made the will.

[ 43 ] Gerlind Silla has filed no notice or appearance. She is not a party to the proceeding. She is a beneficiary having been left a silver service and $300.00. Another $300.00 was left to Ms. Silla’s daughter.

[ 44 ] Most of Factum III consists of argument and statements and not factual observations. Much of the document is taken up with an analysis of the letter of February 24, 2001 and the medical records. Mr. Minkofski is of the view that the testing shown in the records suggests an even lower cognitive score than the doctor reports. In fairness this is based on mathematical calculation and not a pretence that he is competent to interpret test results. The assumption underlying this criticism however is that if Mrs. Dost was unfit to manage her affairs in February of 2001 she must have been lacking testamentary capacity in November of 2000 particularly since she had been showing signs of confusion for many years.

[ 45 ] Mr. Minkofski does not for a moment believe that his mother intended to leave him more than the $200.00 bequest. When I asked him about that he advised that he was surprised she left him that much. Thus the $200 bequest is not evidence of incapacity. Quite the opposite. Mr. Minkofski knows of course that it is only if there is an intestacy that he would be entitled to inherit the estate. In his factum is the statement:

I believe the only gift she was ever asked about was mine; and I consider her response unreasonable. Considering what a terrible parent she was she ought to have given me the entire estate as compensation.

[ 46 ] If all of the opinion, speculation and supposition in these affidavits is ignored and we focus only on the direct observations, is there enough in this material taken at its highest to establish that there is a genuine issue requiring a trial? I think not. Firstly there is no evidence to demonstrate undue influence by Ms. Charron or anyone else. The evidence concerning mental capacity shows that the testator was probably never good with numbers or finances. It shows that prior to making the will she was sometimes confused and had begun to show signs of dementia. It shows that she was increasingly having difficulty in caring for herself as she aged particularly after the death of her husband.

[ 47 ] There are no facts in these affidavits which would establish real doubt about testamentary capacity in the face of the clear and cogent observations of Ms. Charron and Mr. McCowley corroborated by the letters written by the deceased herself. Those letters establish clearly that the testator knew she was making a will, knew how she wanted to distribute her effects, what bequests she wished to make and who should be the residual beneficiary. Most importantly with regard to the objector, the evidence clearly shows that she turned her mind to whether or not to leave anything to him. At least as far as that bequest is concerned there can be absolutely no doubt that the will represented her genuine wish and intent.

[ 48 ] I have reached the conclusion that the affidavit evidence filed by the objector is not of sufficient quality to demonstrate that there is a genuine issue requiring a trial. It is insufficient to refute the direct evidence of the moving parties and Mr. McCowell corroborated by the written instructions and other correspondence.

[ 49 ] I am reassured in this conclusion by a review of the medical records. These were not tendered in evidence by either party. They were not interpreted by an expert. I had ordered them produced to Mr. Minkofski at his request and as noted he seemed to assume there would be a copy in the court file. In an adversarial court system, it is not the role of the court to usurp the roles of the parties by engaging in its own investigation or to assist the parties by going in search of missing evidence. Mr. Moore did however bring the records to court and made them available to me for inspection. Their authenticity is not in issue. As a further indulgence to Mr. Minkofski therefore I have examined those records as if they were properly in evidence.

[ 50 ] I am not entitled to base my decision on assessing and interpreting the medical records but I can consider whether or not they are generally corroborative of the position advanced by Mr. Minkofski.

[ 51 ] In fact the medical records appear generally consistent with the evidence of Ms. Charron and Mr. McCowell. It is quite clear that the testator was receiving regular medical care at the relevant time. In late early 2000, shortly after the time that Ms. Silla had visited her, she had suffered at least two falls and had sustained a hip fracture. Concern is noted about her ability to continue to live on her own but this is not specifically directed to cognitive ability. There are problems with lack of personal care, diet, weight loss and balance.

[ 52 ] At the beginning of March of 2000 Dr. Tareen recorded Mrs. Dost’s neurological status as “normal” and notes “patchy memory loss” under “clinical impression. Mrs. Dost was referred to the Regional Geriatric Assessment Program. At the end of March, Dr. Dalzeil reported a “Folstein score” of 24 / 30 and stated that she probably had “mild Alzheimer’s Disease”. [8] She was seen by Dr. Tareen on November 27 th , 2000 and in the clinical note there is a record that she was having difficulty with short term memory and with calculations. Dr. Tareen’s clinical impression at that time included “early Alzheimer’s dementia.” On December 1, 2000 Dr. Tareen noted that Mrs. Dost had accepted to be “assessed by O.T. for dementia protocol and mobility”. In January of 2001 she is described as a “bit confused” and “bit forgetful”. The clinical impression is still one of “early dementia”.

[ 53 ] The assessment which resulted in the opinion by Dr. Gobessi that Mrs. Dost was no longer able to manage her finances took place on February 16, 2001. By that time she was “disoriented and easily confused”. She sometimes forgot that her husband or even her mother was deceased. This is far more significant impairment than is recorded in any of the medical records prior to that date.

[ 54 ] The medical records are consistent with the evidence given by Ms. Sharron that the testator had been suffering a gradual deterioration in cognitive functions and that she rapidly declined in early 2001. In November of 2000 just after the time the will was signed her doctor noted that she showed signs of “mild dementia” and early onset of Alzheimer’s. This diagnosis does not prove lack of testamentary capacity. Indeed though her doctor indicated that Mrs. Dost had been advised to begin a transition to assisted living, there is no suggestion that she could not at that point make decisions regarding personal care or other aspects of her life. None of her physicians seem to have believed she was incompetent to make health care decisions.

[ 55 ] Alzheimer’s is of course a tragic and progressive disease. In its early stages it may include forgetfulness, communication difficulties, mood changes, disorientation and difficulty handling complex cognitive tasks. Confusion and disorientation in particular can be exacerbated by stress but may managed in various ways. A person who is occasionally forgetful or disoriented is not ordinarily in a constant state. In later stages these problems become more severe and cognitive impairment becomes sufficiently degraded that the person can no longer make financial and personal care decisions. It should be noted that notwithstanding the findings of lack of capacity in February of 2001, the testator did not become completely dysfunctional. The evidence is that she moved to assisted care and continued to enjoy the companionship of her friends including occasional outings. She lived of course until 2008.

[ 56 ] Testamentary capacity is not lacking simply because a testator is at times forgetful or easily confused. As I will address momentarily, a testator need not have perfect understanding of her finances. And testamentary capacity is certainly not the same as wisdom or benevolence. Providing a testator has the basic understanding of the nature of the document and the effect of her decisions that is required by law (and subject to satisfying any legal obligations owed by the estate) the law respects the right of each individual to order their affairs as they please.

The test for summary judgment

[ 57 ] On a motion for summary judgment, I am not entitled to weigh the evidence or make findings of credibility as such. I am however entitled to consider whether or not the evidence presented in opposition to the motion is sufficient to demonstrate that there is a genuine issue requiring a trial.

[ 58 ] Though both masters and judges have jurisdiction to hear a motion under Rule 20, a master may not go quite as far as a judge in deciding the ultimate question. That is because judges have been given enhanced powers by the January 1, 2010 rule amendments. It is to these amendments that the decision of the Court of Appeal in Combined Air [9] is primarily directed.

[ 59 ] Under the rule either a master or a judge is entitled to determine that there is no genuine issue of fact or law and therefore that no trial is required because there is no merit to the position of one of the parties. By contrast a judge may now determine that notwithstanding there is merit to the position of both parties and therefore a genuine issue of either fact or law the judge may in an appropriate case go on to decide the genuine issue if it is reasonable and just to do so without the forensic machinery of a trial.

[ 60 ] Subsequent to the rule amendments I set out the considerations when a master deals with such a motion in Mhedi-Pour [10] and in 90 George St. [11] In particular I summarized the analysis of whether or not there is a genuine question of fact as follows:

There is no genuine question of fact if the party relying on a key fact that is essential to success at trial cannot prove it. In determining that issue, the court may draw a negative inference under Rule 20.02 (1) if it is appropriate to do so. The court may reject evidence that could not persuade a trial judge such as a bald self serving affidavit, an affidavit that is illogical or internally inconsistent, or an affidavit that is demonstrably incorrect because, for example it purports to rely on wording in a document or contract which is misquoted or nonexistent. [12]

[ 61 ] In estate litigation of course the court must also have regard to s. 13 of the Evidence Act . [13] This requires that a party may not obtain a verdict on his or her own evidence in respect of any matter occurring before the death of the deceased person unless such evidence is corroborated by other material evidence.

The Law of capacity

[ 62 ] In determining whether or not there was capacity to make a will on the date in question, the critical question is whether the testator understands the nature of a will, the general structure of her estate and the manner in which she wishes to distribute it. The law in this regard is carefully summarized in the decision in Botnick v. Orfus Family Foundation [14] cited by counsel for the estate trustees.

[ 63 ] Occasional confusion and memory lapses do not vitiate testamentary capacity. Testators are not required to have either an accountant’s knowledge of their estate nor a lawyer’s knowledge of the provisions of a will. [15] The question is whether or not the testator had capacity at the time the will was executed. Botnick is also authority that summary judgment is an appropriate tool in estate cases and may be used to dispose of an unsustainable notice of objection.

[ 64 ] I am satisfied that the evidence as a whole supports a positive finding of testamentary capacity. The objector has failed to show that there is sufficient relevant, admissible and probative evidence to have any chance of success at trial on either the question of undue influence or that of capacity. [16] Summary judgment should be granted.

Alternative Relief

[ 65 ] In case I am in error in my treatment of the evidence, I will consider the alternative relief of security for costs. This relief was clearly requested by the estate trustees in the notice of motion. Not surprisingly, Mr. Minkofski resists this as being unjust.

[ 66 ] The threshold test is easily met. Mr. Minkofski resides in British Columbia and has no exigible assets in Ontario to satisfy a potential costs award. He put no evidence before the court concerning any assets he might have in British Columbia nor any evidence to show that he is an impecunious litigant to whom an injustice would be done if such an order was made. He submits that the Registrar accepted that he had limited income and granted him a fee waiver. This is not evidence but even if I take judicial notice of the income levels required for a fee waiver, there is no evidence about real estate, bank accounts or ability to borrow. Had there been such evidence I would also be entitled to examine the apparent merits of the case as part of the analysis. [17]

[ 67 ] This is a modest estate which would easily be used up if the litigation continues and the estate is obligated to incur the costs of a trial. The evidence does not establish that the objector has a strong case. In fact the contrary is true. It would be highly unjust to permit him to pursue this litigation without any prospect that costs could be recovered from him if he is ultimately unsuccessful.

[ 68 ] It is clear that there are other family members who are supporting Mr. Minkofski in his quest to challenge the will but they have all avoided making themselves parties to the proceeding.

[ 69 ] Accordingly, had I not granted summary judgment, I would have ordered security. The order would have required posting of cash, bond or letter of credit in the amount of $30,000.00 with 10,000.00 to be posted forthwith. I would have ordered the additional security be posted following mediation and prior to any discovery or cross examination. A further installment would have been appropriate prior to scheduling a trial.

Conclusion and Disposition

[ 70 ] In conclusion, for the reasons outlined above, the estate trustees shall have summary judgment dismissing the Notice of Objection. Letters of Administration may issue and the estate trustees may proceed to administer the estate in accordance with the will.

[ 71 ] I may be spoken to as to costs in the event the estate seeks costs from the objector.

Master MacLeod

Date: October 24, 2012

[1] The technical term under the Ontario Rules for what used to be called “Letters Probate”.

[2] The Ontario estates practice is to assign a file number to the application for administration and a different file number to the Objection. The latter is called a “Caveat” in other jurisdictions and in the former Ontario practice.

[3] In Ottawa the usual practice is to schedule such motions before the master on Monday mornings. Of course it was also open to the estate to bring such a motion.

[4] See for example Botnik v. Orfus Family Foundation 2011 ONSC 3043 (S.C.J.)

[5] Canadian Judicial Council, Statement of Principles on Self-represented Litigants and Accused Persons, Sept, 2006

[6] Mr. Moore brought a copy of the medical records to court and left them with me at my request.

[7] Rules 4.1 & Form 53

[8] A “Folstein test” or “mini mental state examination” is a quick diagnostic tool. Scores of less than 24 are considered to be abnormal and indicative of mild cognitive impairment. Scores of less than 18 indicate severe impairment. See for example http://www.mhpcn.ca/uploads/MMSE.1276128605.pdf

[9] Combined Air Mechanical Services Inc. v. Flesch , 2011 ONCA 764 (C.A.)

[10] 2010 ONSC 5414 (S.C.J. - Master) ; upheld 2011 ONSC 3571 (Div. Ct.) ; leave to appeal refused Oct 20, 2011 (M40188) (Ont. C.A.)

[11] 90 George St. Ltd. v. Reliance Construction Canada Inc. 2012 ONSC 1171 ; (2012) 12 C.L.R. (4 th ) 42 (S.C.J. – Master)

[12] 90 George, supra @ para. 36 (c)

[13] R.S.O. 1990, c. E.23

[14] 2011 ONSC 3043 (S.C.J.)

[15] Botnick, supra

[16] I should note that Mr. Moore made a preliminary submission that the Notice of Objection had expired but I do not grant summary judgment on this basis as I am satisfied that Mr. Minkofsky renewed the objection. A renewed objection is contained in the court file.

[17] See for example Cigar500.com v. Ashton Distributors Inc. (2009) , 99 O.R. (3d) 55 (S.C.J.)