COURT FILES NO: 313/04
DATE: 20121219
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Bruce David Tate
Plaintiff
- and -
Joanne Gueguegirre, Jackie MacDonald, Cheryl MacDonald, Colleen Sparks, Sheila Sparks and Jasmine Sweatman, in her capacity as Estate Trustee During Litigation
Respondents/Defendants
A. Sean Graham & Pia H. Hundal,
for the Plaintiff
Nancy J. Tourgis,
for the Defendants, Cheryl MacDonald, Colleen Sparks, Joanne Gueguegirre, Jackie MacDonald
Hartley M. Isenberg,
for the Defendant, Sheila Sparks
HEARD: April 30, May 1, 2, 3, 4, 28, 29, 30, 31, July 4,5, September 10, 11, 12, 13, 2012, written submissions completed on October 24, 2012
WHITAKER J.:
WHAT IS THIS CASE ABOUT?
The Parties and Their Claims
[1] Father made his last will on May 7, 2004 and died on October 18, 2004. Father’s adult children disagree on the validity of the will. The will is challenged on the basis of undue influence and a lack of testamentary capacity.
[2] Although there are suspicious circumstances surrounding the making of the will, I conclude the will was duly executed, that there was no undue influence and the will was made with testamentary capacity.
[3] Under the terms of the last will, most of the estate was left to the one son with very little to the five daughters.
[4] The son propounds the will. The daughters challenge the will.
[5] The plaintiff brother is Bruce David Tate - sometimes known as Bruce Tate Junior, Junior, Bruce, Bruce Tait or Finch. The five defendant sisters are Joanne, Jackie, Cheryl, Sheila and Colleen.
[6] Father’s name was “David Bruce Tate”. Father’s wife and mother of the siblings was Kathleen Tate.
[7] The daughters say the will was not duly executed and that brother isolated Father from the rest of the family at the end of his life when he was rendered vulnerable by bad health. The daughters assert that brother exercised undue and improper influence over Father, and that Father lacked testamentary capacity to make the last will.
[8] Perhaps most significantly, the daughters say the purported last will is inconsistent with Father’s character, his relationships with his children and what he told them he would do. They argue that Father would not have wanted his estate to be disposed of in the manner proposed by brother.
[9] The sisters claim that Father died intestate, each child entitled to an equal portion of the estate.
[10] Brother maintains that Father liked him best, particularly at the end of Father’s life. Brother suggests that Father always said that he (brother) would “get everything” and that the sisters who have already “done well” by Father would “get nothing”.
[11] Brother argues that the outcome is fair and reasonable as he was the only sibling who lived with Father and cared for him at the end of his life.
[12] With one exception, brother was the only sibling to have seen father at the time of the making of the will, during the following period of several months to the date of death and indeed, on the very day of his death.
[13] Brother was with Father on the day that the last will was executed and saw Father almost daily thereafter.
[14] Brother and his common law partner spent considerable time daily with Father during the several last months of his life. They vehemently assert Father was capable and acting freely when he signed the will. They claim Father was mentally alert and knew exactly what he was doing when he made the will.
[15] Under Father’s last will each sister received $1000. Brother was appointed executor and sole beneficiary for the remaining sizable estate. Brother’s common law spouse Geraldine Sharpe and their child were appointed alternate executrix and alternate residual beneficiary, respectively.
[16] I conclude the will represents Father’s true wishes - despite the fact that this is not what the sisters wanted, anticipated or thought was fair.
[17] For the following reasons, I am satisfied that the will of May 7, 2004 was duly executed, that father had testamentary capacity to make his will on that date and that the will was made without undue influence.
WHAT HAPPENED?
The Evidence
[18] In addition to other witnesses, each sibling testified.
[19] Both sides suggest that family history is relevant as all rely on what they understood Father to have said to them about his testamentary intentions, his action and conduct.
[20] With one exception, the parties did not rely on any medical evidence. A capacity assessment was never performed on father.
The Tate Family
[21] Father was born in Toronto in 1928. His extended family had at some time in the past, lived in Bobcaygeon, Ontario. Father spent time in Bobcaygeon as a child where he attended a one room school house which he was later to purchase. While he lived most of his life in Toronto, Father maintained a considerable attachment to Bobcaygeon.
[22] In 1947 Father started a cartage business in Toronto. This later became known as Master Cartage and/or Master Trucking and was a successful commercial venture supporting an extended family. I will refer to these related companies as the “family business”.
[23] In 1948 Father married Kathleen.
[24] Six children were born between 1949 and 1966.
[25] In 1966, Father purchased two houses at 58 and 60 Allen Avenue in Toronto. This is the neighbourhood where he grew up and where his brother and father also lived.
[26] In 1968, Father purchased a property known as the Old Schoolhouse in Bobcaygeon, Ontario. This is the same property referred to earlier.
[27] Father is listed on the deed for the Old Schoolhouse property as Bruce Tate, Master Cartage operator. At a number of points during the trial, Bruce suggested that he was the person referred to on the deed though he was only 8 years old at the time of purchase.
[28] Between 1971 and 1981, Father gifted homes to each of his five daughters on their marriages. These homes were on Allen Avenue or in the same neighbourhood. It was understood that Father wanted to keep his family together in the same part of the city.
[29] In March 1981, Father gifted a rural seasonal property known as the “Cottage” to Bruce. The Cottage is in the Township of Harvey in Ontario.
[30] In 1982, Father bought a corner store/gas bar in Bobcaygeon (“Country Corners”). It was his wish to set Bruce up to live in and operate Country Corners so as to remove Bruce from life in Toronto.
[31] At various points in time, Father despaired about Bruce’s life in Toronto. Father worried that Bruce was associating with the wrong crowd, that he abused alcohol and drugs and had links to organized crime. Father saw the Country Corners residence and business as an opportunity to remove Bruce from the temptations and dangers of life in Toronto.
[32] Bruce moved to Bobcaygeon in 1982 followed closely by his common law spouse Ms. Geraldine Sharpe. Ms. Sharpe testified at the trial. At the time of trial she had been estranged from Bruce for a period of many years. Bruce and Ms. Sharpe have one now adult child of their relationship.
[33] Bruce worked in Country Corners until 1996 after which he rented the business out. Bruce remained resident in Bobcaygeon however and traveled back and forth to work in Toronto until March of 2000.
[34] In 2000 Bruce returned to live in the family home in Toronto. According to the sisters, Father was not happy with this situation and thought that Bruce was creating problems with his two sons-in-law – David Sparks and John McDonald. Both men worked in the family business.
[35] At some point and mostly unknown to Father, Bruce used family business funds to renovate Country Corners. It seems unlikely that this use of funds was with the permission and knowledge of Father. Bruce suggested in his evidence that these funds were his in lieu of wages. If Father did know about this, it is unlikely that he understood the scale of funds being diverted for this purpose.
[36] From 1996 to March 2000, Bruce and Ms. Sharpe say that Bruce spent days each week travelling back and forth between Toronto and Bobcaygeon to help with the family business. This is denied by the sisters. They say he was rarely if ever in Toronto and working during this period.
The First Will
[37] On November 23, 1997 Father made a will (the “first will”) with the assistance of a lawyer, David James Gowanlock. Mr. Gowanlock testified at trial.
[38] Mr. Gowanlock practiced in Fenelon Falls and was a colleague and friend of Bruce’s accountant, Peter Shennett.
[39] On November 6, 1997, Mr. Shennett met with Father and Bruce to discuss financial matters relating to the family business. During this meeting, Father indicated to Mr. Shennett that he wished to make a will. Following the meeting and on advice from Mr. Shennett, Bruce made arrangements for Father to see Mr. Gowanlock about a will.
[40] The next day November 7, 1997, Mr. Shennett wrote to Mr. Gowanlock indicating that Father wished to meet with him to make a will and further that Father wished everything left to Bruce with nothing for the sisters. A meeting was arranged and Mr. Gowanlock met with Father and Bruce to discuss the will.
[41] Mr. Gowanlock testified about the circumstances surrounding the first will. His contemporaneous meeting notes were put into evidence. The notes indicate that the daughters were “always told that Bruce would get estate” and that as the daughters had already done well, the idea for the will was “everything to Bruce”.
[42] Mr. Gowanlock recalled that the estate was to go to Bruce with the exception of $50,000 for Kathleen (the mother now in a nursing home) during her lifetime. He recalled Father saying that he had provided for his daughters during his life and that he was not now going to leave them any inheritance in the will.
[43] Mr Gowanlock recalled that Father was relaxed and comfortable during their meeting and did most of the talking. Mr. Gowanlock had no concerns whatsoever about undue influence or capacity.
[44] Mr. Gowanlock drew the will based on Father’s instructions. There was then a second meeting between the three men where the will was reviewed and signed. Bruce remained present for this meeting.
[45] In his evidence, Mr. Gowanlock agreed that in retrospect, he should not have allowed Bruce to attend the meetings held with Father and that this was not recommended practice. Nonetheless and despite the presence of Bruce at the meetings, Mr. Gowanlock was certain that Father was capable and acting according to his own wishes and intentions in the will process.
[46] The significant features of the first will were:
Bruce was the sole trustee, executor and residual beneficiary;
Kathleen was to receive fifty thousand dollars for her life;
Sheila was the alternate executrix and residual beneficiary;
the other siblings were to receive nothing.
[47] It is clear that these terms were consistent with the conversations with Mr. Shennet and Bruce, as well as those between Father, Bruce and Mr. Gowanlock. Mr. Gowanlock was concerned that other than the $50,000 dollars for Kathleen, Bruce was inheriting the balance of the estate and that the sisters were to receive nothing. As a precaution, Mr. Gowanlock required Father to execute an acknowledgment on November 23, 1997. The acknowledgment indicates that there would be an increased chance that the will would be challenged. The acknowledgement also indicates that Father had given many benefits to the daughters and that he did not wish to distribute his estate amongst them.
[48] Sixteen months later in March of 1999, Father and Mr. Shennett again discussed the division of property in the will and why it was an issue that might lead to a challenge by the daughters. Mr. Shennett wrote to Mr. Gowanlock to apprise him of the discussion and concern. Despite advice from his accountant and counsel, Father maintained his position leaving nothing to the sisters and all to Bruce.
[49] There has been no suggestion that Father lacked capacity or acted under undue influence in the preparation and execution of the first will.
The Revocation of the First Will
[50] On March 8, 2000 Father appeared at Mr. Gowanlock’s office wanting to revoke the first will. The will was produced from the safe in Mr. Gowanlock’s office. Father tore up the will in the presence of Mr. Gowanlock. Father then executed a Revocation of Will dated March 8, 2000. Mr. Gowanlock and his secretary witnessed the Revocation.
Litigation with John MacDonald
[51] In June of 1999, a trial commenced before Farley J. in an action brought by John MacDonald (Jackie’s husband) claiming an interest in the family business. The action was defended by Father and Bruce.
[52] Mr. MacDonald was granted judgment for a 25 per cent interest in the family business. Reasons were given on July 2, 1999.
Bruce’s Break from the Family
[53] In March of 2000 and after an investigation, Father concluded that Bruce had been stealing money from the family business.
[54] There was an altercation at the family business office when the accusation was made to Bruce directly. Bruce was asked to leave. It is alleged that Bruce made death threats to Sheila and David Sparks. Police were called. Bruce was led off in handcuffs although he maintains he left voluntarily.
[55] It was after this altercation that Father revoked the first will.
[56] Father was quite shaken by the altercation.
[57] From March of 2000 to the summer of 2003, Bruce remained in Bobcaygeon and had no contact with Father or anyone else in the family.
[58] After several years in a nursing home suffering from Alzheimer’s disease, Kathleen Tate died on July 15, 2003. Father was very distraught.
[59] Bruce and Ms. Sharpe attended the funeral for Kathleen. They are both alleged to have yelled profanities and to have acted in bizarre and inappropriate ways at the funeral - in front of grieving family and guests. While Bruce and Ms. Sharpe deny these allegations, they were independently corroborated by each sister during their evidence.
[60] The sisters and Father were all quite shocked and offended by this conduct.
[61] Father was again, emotionally devastated - by his wife’s death and now by the behavior of Bruce and Ms. Sharpe at the funeral.
The Appeal
[62] Father hired Mr. Marc Koplowitz as counsel to appeal the decision of Justice Farley. Mr. Koplowitz was assisted in the appeal by his junior, Howard Mammon.
[63] During the course of the retainer, Mr. Koplowitz received a letter dated March 23, 2000, from Father over his signature. The letter was composed on a computer. It is uncontested that Father could not have written this letter without assistance as he was unable to compose a message on a computer.
[64] The letter outlines Father’s understanding of the depth and quality of Bruce’s misconduct. Father noted his fears for Bruce in the future.
[65] Mr. Koplowitz was directed by Father to not take any instructions from Bruce.
[66] While Bruce suggested in his evidence that others must have drafted this letter, it is most likely that the letter was in fact composed by Father at his direction and then prepared for his signature. There is no dispute that the signature is Father’s. Fraud is not suggested.
[67] On September 12, 2000, O’Driscoll J. in the Divisional Court dismissed the appeal.
[68] Throughout the litigation, Messrs. Koplowitz and Mammon had no difficulty taking instructions from Father. Neither had any concerns about Father’s capacity or whether there was an element of undue influence. Neither believed that Father required an assessment.
Father’s Request for Help
[69] In May of 2003, Bruce received what appears to be a note from Father scribbled on the back of a traffic ticket. The note addresses “Finch” (a nickname for Bruce used by Father) at RR3, Bobcaygeon. The text of the note is:
Finch Big Problems with Sparks,
Need your help Dad.
Ps Needs Money to pay Lawyer.
[70] According to Ms. Sharpe, Bruce carried this note around with him for a few months before deciding what to do. Bruce claims to have had no money for gas to travel from Bobcaygeon to Toronto.
[71] Eventually and in October 2003, Bruce visited Father in Toronto where they appeared to reconcile.
[72] Bruce asserts that Father was very happy to have reconciled with him. The sisters say to the contrary, Father was very unhappy on Bruce’s “return”.
[73] In October of 2003, and about one year before his death, Sheila, Colleen, Jackie and Joanne saw Father for the last time.
[74] Bruce remained in Toronto. In October and November 2003, Bruce began to accompany Father on various visits to lawyers’ offices, often unannounced and with Ms. Sharpe along as an observer.
[75] In late 2003 Father and Bruce visited the law firm of Loopstra Nixon. Bruce signed an authorization and Direction allowing for the release of $10,000 from Loopstra Nixon in trust.
[76] On November 21, 2003 and with the assistance of counsel – John Hodgins, Father signed a power of Attorney for property in favour of Bruce.
[77] According to Bruce and the family Medical Doctor - Dr.Bohdan Pich, Father had the capacity to grant the Attorney for property.
[78] In early 2004 Father on behalf of the family business retained Gardiner Roberts to enforce promissory notes given by a company owned by David Sparks.
[79] In January 2004, Cheryl and her husband gave Father a vehicle – a Toyota RAV4.
[80] On January 2, 2004, Father was examined by Dr. Pich. The visit was for the purposes of renewing Father’s large truck license. Dr. Pich testified at the trial.
[81] Dr. Pich confirmed that Father did not suffer from any disease that would preclude him from driving a large truck. Although he was not conducting a capacity assessment, Dr. Pich did indicate in his evidence that Father appeared to be competent. Dr. Pich stated in his report of January 21, 2004 that Father was not “... suffering from any diseases of the senses, psychiatric disorders ... or any neurological diseases”. Dr. Pich’s report is the only medical report filed in this trial.
[82] On February 13, 2004, Bruce signed an authorization and direction to the law firm of Loopstra Nixon to release over $166,000 to TD Canada Trust to discharge mortgages on 60 and 62 Allen Avenue.
[83] In the spring of 2004, Father moved to Bobcaygeon to live with Bruce and Ms. Sharpe in Country Corners.
[84] There was much evidence called about the Father’s personal hygiene in the days and months before his death. The sisters maintain that Father was incontinent – both bladder and bowel. They explained that he didn’t bathe much and always gave off a strong odor. I was told that he seemed indifferent to these circumstances but that others would usually notice. This assertion was strongly denied by Bruce and Ms. Sharpe who suggest that he showered regularly and wore clean clothes.
[85] It is agreed that Father suffered from a severe abdominal hernia and other debilitating ailments that impeded his mobility – including painful gout.
[86] One of the sisters saw father without clothes in the house before he moved to Bobcaygeon. It seems uncontested that this was highly unusual behavior for him and that he was always otherwise modest in the company of his daughters.
[87] The daughters assert that before he went to Bobcaygeon, Father couldn’t recall what his assets or financial resources were – or where he had funds held in trust from sales of property.
The Last Will
[88] In the first week of May 2004 and five months before Father’s death, Bruce claims that Father asked him to make an appointment to see Mr. Robert J. Walker, the only lawyer in Bobcaygeon – for purposes of making a will (the “last will”).
[89] Father had no prior dealings with Mr. Walker and the two men had never met previously for any purpose. Mr. Walker knew nothing about Father’s personal or business affairs. Mr. Walker testified at trial.
[90] Mr. Walker has been in practice for over 35 years. He estimated that he had drawn between 3700 and 4000 wills in this time, none successfully challenged.
[91] The sisters were not advised or notified of Father’s intention to make a new will – either before or after the will was made.
[92] Bruce and Ms. Sharpe accompanied Father to the meeting with Mr. Walker. Bruce drove them in his car.
[93] Mr. Walker permitted Bruce to join Father for the entire meeting where instructions about the will were given.
[94] ‘Mr. Walker kept brief notes of the meeting. He recalls that most of the discussion concerned the history of the area and Father’s remembrances of times past.
[95] Mr. Walker has a fairly detailed recollection of the meeting. He was impressed with Father’s intelligence and bearing. Both men had an interest in local history and spent most of their time talking on this topic.
[96] Father recalled the auto service station in Bobcaygeon operated by Mr. Walker’s father. Mr. Walker particularly admired Father’s handwriting. Mr. Walker had no concerns about testamentary capacity or undue influence.
[97] Mr. Walker conceded that his notes of the first meeting were “not the greatest”. The notes do not track the eventual terms of the will – for example Bruce was to receive a gift of $1000 and Jackie was to receive nothing. Both of these terms are inconsistent with the final draft.
[98] Mr. Walker was satisfied of Father’s capacity. He regrets having permitted Bruce to remain during the first meeting and understands this is not preferred practice.
[99] Mr. Walker was told there was some urgency about getting the will done. He agreed that it was not his normal practice to send a draft to the primary beneficiary and certainly not by fax – but that was done here for expediency.
[100] Mr. Walker did not recommend that Father discuss his intentions with his daughters or any other family members.
[101] Following the meeting, Mr. Walker had his assistant Ms. Shea prepare a draft will for Father’s review.
[102] A draft will was sent to Bruce’s fax machine at Country Corners. The draft was most likely picked up and reviewed by Bruce and then was passed to Father. Bruce doesn’t recall this but it is most likely.
[103] On May 7, 2004, Father executed the last will at Mr. Walker’s office.
[104] Bruce was in the building in another room when Father signed the last will. Bruce drove the two of them to the meeting. Father must have known that Bruce was in the building waiting for him.
[105] The execution of the last will was witnessed by Mr. Walker and his assistant Ms. Shea.
[106] Father signed his name “David Bruce Tate Sr.” This is not his usual signature. This is the only document filed in the trial where Father’s signature includes “Sr.”.
[107] Each page of the will is initialed “B.T”.
[108] Ms. Shea has no recollection of the meeting to sign the will. She has no memory of the will being signed.
[109] Mr. Walker kept no notes of the meeting.
[110] During his evidence, Mr. Walker was quite adamant that Father was capable when the Will was executed. According to Mr. Walker, the two men carried on a conversation during the meeting that allowed Mr Walker to assess competence.
[111] Mr. Walker did not ask Father any questions about his relationship with Bruce. Mr Walker did not make any inquiries as to Father’s assets or property generally. Father told Mr. Walker that he was in his eighties although he was only 75. Father indicated that he had moved to Bobcaygeon as a result of some undisclosed illness.
[112] Father wore the same clothes to the two meetings.
Father Moved to the Old Schoolhouse
[113] In June of 2004, Father moved into the Old Schoolhouse.
[114] According to Ms. Sharpe, she and Bruce visited Father every day, ensured that he washed and showered, washed his clothes, changed his bed linen and made him meals.
[115] Father turned 76 on July 31, 2004.
[116] Bruce held a birthday party for Father at Country Corners. The only daughter to attend was Cheryl. Cheryl testified that Father was teased by guests at the party as he was having difficulty following conversations. Father spent much of his time at the party driving around in his truck.
[117] This is the last time that Cheryl saw Father.
Father’s Last Months
[118] According to Bruce and Ms. Sharpe, Father continued to enjoy spending time with them in Bobcaygeon, living in the school house and driving his RAV 4. Bruce and Ms. Sharpe cared for all Father’s needs, made sure he showered, ate, and had clean clothes and bedding.
[119] In August 2004, Cheryl sent an email to Bruce asking for Father’s input on a family tree. Cheryl suggested that Father visit local cemeteries to obtain information to assist in creating the family tree.
[120] The period from August to October 2004 was uneventful.
[121] Father had dinner with Bruce and Ms. Sharpe on the evening of October 18, 2004. After dinner father retired to his bed room as was his usual practice. There was nothing unusual or remarkable about Father’s behavior that night.
[122] Bruce decided to check on father before retiring himself. Entering Father’s room, Bruce found Father unclothed and dead. It appears that Father had fallen between his bed, a dresser and the wall. The autopsy report indicates that Father suffered a heart attack and a broken clavicle.
[123] No foul play has been suggested.
[124] Bruce did not immediately inform his sisters of Father’s death.
[125] In November of 2004 Bruce applied for a Certificate of Appointment of Estate Trustee with a will.
[126] On December 8, 2005 Sheila filed a Notice of Objection.
WHAT IS THE LAW?
[127] There is no serious dispute as to the applicable legal principles engaged in this case. The parties acknowledge this is a fact driven dispute. They differ on the inferences and conclusions to be drawn from the facts.
[128] The parties agree on the general principles set out by the Supreme Court of Canada in Vout v. Hay 1995 CanLII 105 (SCC), [1995] 2 S.C.R. 876, and restated in this court by Cullity J. in Scott v. Cousins, [2001] O.J. No. 19.
the party who propounds the will has the legal burden to prove due execution;
an absence of due execution is fatal;
proof of due execution gives rise to a presumption of knowledge, approval and testamentary capacity;
Where there are suspicious circumstances (as here), the propounder of the will must rebut those circumstances on a civil standard – the balance of probability;
The proof required to rebut suspicious circumstances is proportionate to the quality and character of the circumstances.
[129] At paragraph 39 of Scott, Cullity J. quotes from Vout v. Hay to describe the consequences of suspicious circumstances. He notes that “…a well grounded suspicion of undue influence will not per se discharge the burden of proving undue influence…”. Further that the extent of the proof required is proportionate to the gravity of suspicion.
[130] I take this to mean that Bruce must rebut these suspicious circumstances on a balance of probability. He must do this without relying on the presumption of knowledge, approval and testamentary capacity that otherwise flows from due execution. The evidence of rebuttal must be as robust as the suspicious circumstances.
Has There Been Due Execution?
[131] The formalities for due execution are set out in sections 3, 4 and 7 of the Succession Law Reform Act R.S.O. 1990 c. s. 26 (the “SLRA”):
Will to be in writing
- A will is valid only when it is in writing. R.S.O. 1990, c. S.26, s. 3.
Execution
4.(1) Subject to sections 5 and 6, a will is not valid unless,
(a) at its end it is signed by the testator or by some other person in his or her presence and by his or her direction;
(b) the testator makes or acknowledges the signature in the presence of two or more attesting witnesses present at the same time; and
(c) two or more of the attesting witnesses subscribe the will in the presence of the testator.
(2) Where witnesses are required by this section, no form of attestation is necessary. R.S.O. 1990, c. S.26, s. 4.
Position of signature
- (1) In so far as the position of the signature is concerned, a will, whether holograph or not, is valid if the signature of the testator made either by him or her or the person signing for him or her is placed at, after, following, under or beside or opposite to the end of the will so that it is apparent on the face of the will that the testator intended to give effect by the signature to the writing signed as his or her will.
[132] With respect to the signature, while it included the notation “Sr.” and the pages were initialed “BT”, there is no suggestion that the signature was forged or that some person other than Father signed the will.
[133] Mr. Walker had a recollection of the actual signing of the will by Father. Ms. Shea although without recollection, testified as to her usual practice. There is nothing in the file to indicate a departure from the usual protocol.
[134] Mr. Walker recalled that Father had read the draft will and that parts of it were read to Father by Mr. Walker.
[135] While there are some irregularities in that the initials and the final signature on the will are not entirely consistent, I am satisfied that the signature indicates an intention to give effect to the will and that the requirements of the SLRA have been met. There were the irregularities of the draft final will being sent by fax to the largest beneficiary and that Mr. Walker was led to believe there was some urgency.
[136] I conclude the final will was duly executed.
Are There Suspicious Circumstances?
[137] Suspicious circumstances include those surrounding the preparation of the will and/or those tending to call into question the capacity of the testator (see Banton v. Banton (1998) 1998 CanLII 14926 (ON SC), 164 D.L.R. (4th) 176.
[138] There are undoubtedly a number of suspicious circumstances surrounding the execution of the will:
The defendants were not advised that Father wished to make a will, nor were they consulted before arrangements were made with Mr. Walker;
Bruce arranged for Mr. Walker, a lawyer unknown to father to do the will – rather than use one of many lawyers retained by Father in the past, familiar to Father and who would know the family and its history;
Mr. Walker was left with the impression that there was a significant urgency to the matter, so that even sending the draft by regular mail would be a concern;
Bruce arranged the first instructions meeting with Mr. Walker;
Bruce’s attended the first meeting with Mr. Walker;
Bruce drove Father to the two meetings and at the second execution meeting waited close by and down the hallway;
The draft will was sent to Bruce’s fax machine and was most likely read by Bruce;
Bruce advised Mr. Walker that the draft was acceptable;
The poor quality of note taking at both meetings by Mr. Walker and Ms. Shea;
The will was executed with different initials and signature notation than what Father would normally use;
[139] There are also suspicious circumstances more generally and beyond execution:
During the last months of Father’s life and at the time leading up to the execution of the will, Father was spending time only with Bruce and Ms. Sharpe;
Father was quite dependant on Bruce and Ms. Sharpe for the basic necessities of life – food, clothing, shelter, companionship, personal hygiene;
Bruce did not immediately contact the defendants on Father’s death;
Perhaps most importantly and from the perspective of the defendants is the assertion that Father would not have wanted to treat the sisters unequally in the distribution of the estate and that this outcome would be out of character with father and what he told the sisters and Bruce during his lifetime.
[140] As I have indicated earlier, I accept that the suspicious circumstances revealed by the evidence are sufficient to rebut the presumption of knowledge, approval and capacity. Bruce bears the burden of proving these, on the civil standard of a balance of probabilities.
Capacity at the Point of Signing the Last Will
[141] The central and principal factual dispute is whether Father was capable and had knowledge and approval at the point of signing the last will on May 7, 2004.
[142] Much of the evidence in support of capacity comes from Bruce himself.
[143] Having carefully reviewed Bruce’s testimony, I must conclude that he is not credible and his evidence is unreliable. Bruce changed his evidence on several points when prior inconsistent statements were put to him. He had selective memory difficulties - meaning that he had some very detailed recollections of long past events and poor recall of some recent history.
[144] Bruce did not concede obvious points in the evidence where he thought it would assist his case. Bruce was argumentative and not forthcoming on a variety of factual points. Bruce made inappropriate remarks and had to be directed by the court to provide answers to certain questions. When unwilling to answer a question in cross examination, Bruce attempted to ask questions of counsel and the Court.
[145] As an example, Bruce persisted and then equivocated in the assertion that he was the Bruce Tate referred to in the deed to the Old Schoolhouse when that could plainly not be the case. It was obvious that in Bruce’s mind he had to adhere to this fact and so he did, incredibly.
[146] I can have no confidence in Bruce’s evidence.
[147] With respect to the sisters, I find them to be uniformly credible. Nonetheless, much of their evidence does not assist them as none are in a position to testify as the Father’s competence around the time of the signing of the last will, in the months before and after. With the exception of Cheryl, the sisters did not see Father after the fall of 2003. They were not able to provide me with any assistance as to their Father’s state of mind when he signed the will on May 7, 2004. Their evidence about this phase of Father’s life is pure conjecture.
[148] The evidence from Cheryl is based on her visit with Father on his birthday. While she did indicate that Father seemed to be having difficulty following conversations, this occurs after the will was signed and does not in any event permit the conclusion that he lacked competence three months earlier. Even after this point, Cheryl thought Father well enough to visit graveyards to record information about relatives for a family tree.
[149] Mr. Walker’s evidence supports the conclusion that Father was indeed capable and understood what he was doing at the point of execution of the last will. While it is certainly the case that Mr. Walker did not in all respects follow the suggested methodology, I accept that he is a very experienced senior practitioner who followed his own protocol and would have likely concluded that Father was not capable if the warning signs were manifest. I note that Mr. Walker had over 35 years of experience drawing wills and that on his own count he had drawn close to 4000 wills, all unchallenged.
[150] I also accept the evidence of Dr. Pich, another experienced practitioner with a lifetime of practical knowledge. Although Dr. Pich was not asked for a capacity assessment, he approved of Father’s capacity for purposes of renewing a heavy truck license. As part of that approval he indicated that Father did not suffer from any disease of the mind. I have difficulty accepting that Dr. Pich would approve Father to drive a heavy truck on public roads if he was concerned about competence.
[151] I find Ms. Sharpe to be credible. At the time of the trial, she had been estranged from Bruce for many years and had absolutely nothing to gain by coloring her testimony. It was clear that there is now no warmth between them and I find that she would not alter her evidence to assist Bruce. She had nothing to gain by misleading the court. She was truly a disinterested and objective witness.
[152] Although not a professional health care worker capable of conducting a capacity assessment, Ms Sharpe did work in a nursing home as a dietary aid and had from that job, the practical experience of dealing with many residents who lacked capacity and suffered from different forms of dementia. In my view, Ms. Sharpe would understand in a lay fashion whether or not Father was competent.
[153] Ms. Sharpe was with Father most every day in the months surrounding the execution of the last will and leading to the date of his death. In her view, Father’s mind remained sharp and focused until the end- and I accept that evidence.
[154] The evidence of the five sisters is that they were estranged from father in the last year of his life and none of them with the exception of Cheryl, have any direct recollection of information or observations that would assist in determining Father’s capacity at the point of the execution of the will.
[155] Cheryl did have some evidence based on her attendance at the birthday party in the summer of 2003. This is after the point that Father has signed the last will so cannot necessarily be understood as evidence that goes to Father’s competence at the point the will is signed.
[156] In the view of the defendants, the most significant and central factual assertion is that Father would never have wanted his estate to be distributed in an unequal fashion.
[157] With respect, this outcome is exactly what Father had wished under the first will about which there is no issue that Father had capacity. In the face of the first will, it cannot simply be asserted that such an outcome was outside the realm of the possible in terms of Father’s testamentary intentions.
[158] It is clear that Father expressed to Messrs. Shennett, and Gowanlock, his view that the daughters had been looked after before his death, and that the bulk of his estate would pass on his death to Bruce.
[159] While it is also true that Father destroyed and revoked the first will which was designed to achieve these testamentary goals, it cannot be said that this outcome was beyond the reasonable expectations of Father’s wishes. The assertion that “Father would never have wished that Bruce get all” is untenable. Certainly Father wanted that outcome at one point and pursued it even in the face of legal advice to the contrary.
Conclusions
[160] I am satisfied that the last will was duly executed and consistent with the requirements of the SLRA.
[161] This conclusion triggers the presumption of knowledge, approval and capacity.
[162] I am satisfied that there are many suspicious circumstances, which means that Bruce cannot rely on the presumption and must prove knowledge, approval and capacity on a civil standard.
[163] I find that Ms. Sharpe, Mr. Walker and Dr. Pich are credible witnesses and accept their evidence concerning the apparent competence of Father during and around the time of making the last will and in the four months from the making of the will to the date of death.
[164] I find Bruce to be an incredible witness who was prepared to mislead the court where he believed that such deception would assist his case. Bruce’s persistent dishonesty as a witness however does not establish that Father was incompetent when he signed the last will.
[165] The sisters were not in a position to observe and/or interact with Father at the time the final will was executed, nor in the months preceding or following the making of the will.
[166] I do not accept the submissions of the sisters that Father could not have intended to leave the bulk of his estate to Bruce and to them nothing. This is precisely what he intended when he made the first will when there was no issue of competence.
[167] The outcome may appear to the defendants to be unfair, but that is the right of a testator. The exercise here is not to set aside the intended outcome because it might not seem to be fair to prospective beneficiaries. A testator has the right to treat hopeful beneficiaries unjustly.
[168] If there is testamentary capacity, the legitimate and appropriate outcome may seem unreasonable or even cruel to survivors – but that is not the test.
[169] In the circumstances, I find that Bruce has on a civil standard, proven on a balance of probability that Father had knowledge, approval and testamentary capacity at the time of the execution of the final will. Despite his lack of credibility and a habit of deception, Bruce has satisfied the evidentiary burden in this case through the evidence led from other credible witnesses, those being Ms. Sharpe, Dr. Pich and Mr. Walker.
[170] A Certificate of Appointment of Estate Trustee with a will, may issue.
[171] The parties may raise with me in writing, any further issues with respect to the stayed companion litigation.
[172] Costs submissions may be made in writing within two weeks.
WHITAKER, J.
DATE: December 19, 2012
COURT FILE NO: 313/04
DATE: 20121219
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Bruce David Tate
Plaintiff
- and -
Joanne Gueguegirre, Jackie MacDonald, Cheryl MacDonald, Colleen Sparks, Sheila Sparks and Jasmine Sweatman, in her capacity as Estate Trustee During Litigation
Respondents/Defendants
JUDGMENT
WHITAKER J.
Released: December 19, 2012