BARRIE COURT FILE NO.: CV-09-0807-00 & CV-08-0298-00ES

DATE: 20130222

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

WILLIAM JOHN TROTTER and CATHERINE RUTH TROTTER and ROBERT TROTTER

Applicant/Responding party

– and –

JOHNSTONE DEMPSEY TROTTER and JAMES BELL, personally, and in their capacity as ESTATE TRUSTEES WITH A WILL IN THE ESTATE OF AUDRIE JEAN TROTTER

Respondent/Moving party

Bradley Teplitsky, for the Applicants William John Trotter and Catherine Ruth Trotter

Chris Scott for Applicant Robert Trotter

Jordan D. Oelbaum and Elizabeth A. Bocek for the Respondent trustees

Michael Adams for the Respondent Johnstone Dempsey Trotter in his personal capacity

HEARD: October 11 and 12, 2012 and January 7-9, 2013

TABLE OF CONTENTS

Overview................................................................................................................................. Page 2

State of Proceedings............................................................................................................... Page 3

Criteria for Summary Judgments............................................................................................ Page 7

The Medium is the Message.................................................................................................... Page 8

Partial Summary Judgment................................................................................................... Page 10

The Responding Party’s Argument....................................................................................... Page 10

1. Dependency and Control................................................................................... Page 14

2. Drastic Change in Wills..................................................................................... Page 20

3. Evidence of Testamentary Intention.................................................................. Page 21

4. Character of Testator......................................................................................... Page 21

5. Character of Accused........................................................................................ Page 22

6. Anxiety of Accused to Get the Benefits........................................................... Page 22

7. Independent Legal Advice ............................................................................... Page 25

8. John’s Dishonesty, Inconsistency, Nonsensical................................................. Page 25

9. Moral Claims – Needs of Potential Beneficiaries.............................................. Page 29

Analysis of Responding Party’s Argument.......................................................................... Page 29

Audrie .................................................................................................................................. Page 30

M. P. EBERHARD

Overview

[1] Audrie and Ty Trotter parented the four Trotter parties in this litigation and another younger brother Phillip who declines to participate in this dispute as a party though he is called upon as a witness. James Bell is named as co-executor of the 2005 will in issue.

[2] For simplicity’s sake I refer to the Applicants as Bill (William), Kate (Catherine) and Robert (sometimes called Bob) and the Respondent as John (Johnstone).

[3] The Respondents (proponents of the will) are the Moving Party before me in this motion for Summary Judgment. Again, for simplicity’s sake I abandon the use of Applicant/Respondent and refer to the individual named or Moving Party/Responding Party. Most often when I refer to the Responding Party it is Bill and Kate. Robert is separately represented by Mr. Scott who generally chose to merely defer to the arguments brought on behalf of Bill and Kate by Mr. Teplitsky.

[4] Another complication raised is the order for directions bring together the wills action and an action to set aside an inter vivos transfer (gift action). The Moving Party submits that the gift action is subsumed by a finding in the wills action because if the inter vivos transfer is set aside the property goes into residue that shall be decided in the wills action. The Responding Party submits that the gift action is not subsumed and success on the motion for Summary Judgment would not defeat the gift action. The Responding Party states, unasked, it will not pursue the gift action pending the appeal they intend if I decide against them on this motion. This complication will divert my reasons into a subsection devoted to the state of the proceedings.

[5] Ty had a garage held as Trotters Garage Inc. Audrie and Ty had farm land with a storm damaged barn. On the corner of this farm the garage is situate on a lot held as Trotters Holdings Inc. Ty and Audrie also had their residence, a rental property known as the white house, a time share in Sanibel as well as personal property of some sentimental value.

[6] Audrie and Ty made mirror wills in 1995.

[7] Ty died in 1996.

[8] All the shares in Trotter’s Garage Inc. were bequeathed by Ty on his death to John along with 50% of the Trotter Holdings which owned the garage land leaving 50% of the ownership of that land held by Trotter Holdings with Audrie as well as all the other assets just mentioned.

[9] Between 1995 and 2007 there were many changes in the family relationships between the siblings and between Audrie and her children. And there was the passage of time. They all aged and Audrie adapted to her life as a widow, changes in her health and ultimately the approach of death.

[10] Audrie made wills in 1999, 2000, 2002 and 2005.

[11] In 2000 she transferred the residence to herself and John in joint tenancy. In 2003 she transferred the farm to herself and John in joint tenancy. Those transfers took the residence and farm out of her estate as they would then pass to John by survivorship. She died in March 2008 and left her 50% of Trotter Holdings and the residue (Sanibel and personal property) to John through the 2005 will and the white house to George Pohle.

[12] In their 1995 wills Ty and Audrie had named all the children to share in the real property. In Audrie’s subsequent wills Audrie listed various personal property to various people and sometimes Kate and Phillip receive some severed land but John the residue. In the final will Kate and Phillip were to receive $50,000 each from John and no longer any real property nor the personal property that had previously been specified.

State of Proceedings

[13] By announcing his intention to appeal any Summary Judgment against the Responding Party in what he calls the wills action, before pursuing the second action (the gift action), Mr. Teplitsky, counsel for objectors Bill and Kate, raised my concern that he; Scott for the objector brother Bill; Oelbaum, Bocek and Adams, counsel for the proponent brother John and for the estate; and the court; may have very different understandings of the state of the proceedings.

[14] The Responding Party submits that if the inter vivos transfers are found to be based on fraud, no court would allow the fraudster to then succeed under the wills and thereby receive the same property as part of the residue. On that basis the Responding Party stated he intends to make the claim in the gift action for a constructive trust in favour of John, Kate and Phillip.

[15] I needed clarification.

[16] What follows is a transcript of the clarifications given in oral argument:

THE COURT: A minute ago you said no court would allow a fraudster to succeed on Wills, so

MR. TEPLITSKY: No, no..

THE COURT: …I’m just asking you that backwards.

MR. TEPLITSKY: …no, not on the Will. To succeed – no fraudster, if I set aside the transfers, would let the transfer go back to John under the 2005 Will. They could say the 2005 Will was still valid. If the farm transfer was a fraud, it likely taints the Will, but it’s conceivable that the Will could stay in place. Your Honour, and he be the residue beneficiary. But when – in a gift proceeding when they set aside the transfers that – instead of putting them back to the estate in the 2005 Will that they set up a constructive trust, as I’ve set out in my Factum in favour of John, Kate, and Phillip, and bypass the Will, because the Will just gets it back into John’s hands

[17] There are no pleadings in the gift action. There is a notice of action. The Moving Party points to the Healey J. Order giving Directions dated December 8, 2009. Both actions (will 08-0298, and gift 09-0807) are referenced. Not only are they scheduled to be heard one after another, the sequence of the issues to be determined is addressed and the possibility of Summary Judgment at defined stages of the litigation expressly mentioned. No pleadings are called for. It appears to be an instance of directions in an estate case defining the issues rather than pleadings.

[18] The relation between the claims in the gift action to the claims and results in the will action is never documented prior to the oral submission set out above. The only prior reference came in the Responding Party factum which was filed January 3, 2013. (more about documents in this Summary Judgment motion hereafter), as follows (page 2):

5. The Respondents’ motion is very ill conceived and must fail for the following two reasons (quite apart from the fact that the voluminous nature of the materials):

(i) Issues of fraud should not be determined on a motion for Summary Judgment unless the allegations are spurious. In the Will Proceeding, the evidence underlying the allegation of fraud is compelling. Further, the determination of undue influence in this Will Proceeding involves issues of credibility which cannot be properly determined without the benefit of a trial and particularly so given John’s unreliable evidence and the conflicting testimony. The onus is on the Respondents to demonstrate that the motions Judge can obtain a full appreciation of the evidence without viva voce evidence. They have failed to meet this onus and as it relates to the question of fraud, will likely lose that issue at trial in light of the evidence; and,

(ii) Contrary to the Respondents’ assertion, the Gift Proceeding does not become moot in the event the Will proceeding is dismissed. The Respondents erroneously assume that if the property transfers are set aside that they will simply revert to the Estate and to John’s benefit under the 2005 Will (if it is upheld). However, that is simply not the case. The Court in the Gift Proceeding may award the Applicants a constructive trust in respect of the house and farm. Not only is this a possible outcome of the Gift Proceeding, if the Court finds that there was fraud or undue influence associated with the transfer of those properties, it is the likely outcome. In any event, the merits of the Gift Proceeding including the potential remedy are not before the Court on this motion as referenced below.

THE FARM FRAUD (page 3)

7. John took title to the farm property from his mother as a joint tenant in 2003. It is the Applicants’ position that he procured title through fraud. As referenced in Schedule “A” to this Factum, the particulars of the fraud involve John rendering inflated invoices to Audrie for work he purportedly did in renovating a barn on the farm.

THE GIFT PROCEEDING (page 11)

The Farm Fraud

22. As submitted above, Audrie transferred the farm as a result of John’s fraud (or at the very least, John has not met his onus on the summary Judgment motion in the Will Proceeding of proving that the transfer was not procured by fraud). Although the legal issue of whether there was farm fraud in the Will Proceeding is virtually identical to the legal issue of whether there was farm fraud in the Gift Proceeding, the determination of the fraud issue in the Gift Proceeding is not before the Court on this motion. (emphasis added)

Footnote: The only apparent difference being that in the Will Proceeding, the Applicants will ultimately have to demonstrate that Audrie would have changed her 2005 Will had she known about the fraud whereas they do not have to demonstrate that in the Gift Proceeding (they only have to prove that she would not have transferred the farm had she known about the fraud)

23 The only issue before this Court on this motion in the Gift Proceeding is whether the Gift Proceeding becomes irrelevant (ie moot) if the 2005 Will is upheld in the Will Proceeding. This Court on this motion cannot pre-determine the outcome of the Gift Proceeding (even though the Applicants have adduced compelling evidence of fraud in response to the summary Judgment motion).

24. However, this Court can and should determine whether the Respondents’ theory of mootness is correct. As referenced above, the theory that the Gift Proceeding becomes moot if the Will Proceeding is dismissed is incorrect for the following reason: even if the 2005 Will is upheld, a subsequent Court in the Gift Proceeding may find that the transfer of the farm was procured by fraud and if such a finding is made and the transfer is set aside, it is very unlikely that the farm will revert to John in his capacity as the residue beneficiary. What is more likely to happen is that the Court will declare that the farm is held in trust by John as a constructive trustee for Kate, Phillip and perhaps John. The following case excerpts support this proposition: ….

SCHEDULE “A” TO APPLICANTS’ FACTUM –THE EVIDENCE OF FRAUD AND UNDUE INFLUENCE AND JOHN’S CONFLICTING EVIDENCE.

[19] The Responding party did file a Notice of Action which included the following claims:

Notice of Action para 6

6. The Plaintiffs to this Action, who are also children of Audrey Jean Trotter claim that Audrey Jean Trotter did not understand or approve the nature of the transactions by which title to the Properties was transferred into the name of the Defendant Johnstone Dempsey Trotter and herself as joint tenants on January 12, 2001 and August ly, 2003 (the “inter-vivos transfers”), that the Defendant unduly influenced Audrey Jean Trotter, that the Inter-Vivos transters are null and void and should form part of the Estate of the late Audrie Jean Trotter.

7. In the alternative, the Plaintiffs state that the Inter-Vivos Transfers were made for nominal consideration and that the Defendant Johnstone Dempsey Trotter holds title to the Properties on resulting trust for the Estate of Audrey Jean Trotter.

8. Should the Plaintiffs succeed in their challenge to the validity of the Last Will and Testament of Audrie Jean Trotter and should this instrument be found to be null and void, then, as her children, the Plaintiffs have an interest in said Estate.

9. As such, the Plaintiffs have an interest in the Properties to the extent that these form part of the Estate of the late Audrie Jean Trotter

10. The Plaintiffs to this Action thus further seek against the Defendants:

(b) A Declaration that the Properties form part of the Estate of the late Audrey Jean Trotter.

[20] These claims seek to return the property to the Estate not a constructive trust.

[21] Counsel for the Responding Party asserts that fraud in the inter vivos transfers was only exposed by the disclosure of invoices relating to the John’s renovation of the barn. He asserts “there is no statement of claim so we can amend any time”.

[22] Fraud has never been pled nor was it mentioned in the directions.

[23] The disclosure of the invoices upon which the Responding Party asserts fraud is said to have occurred in December 2010. Limitations considerations are suggested though none of this is before me because the whole complication was only explored when counsel professed that he didn't intend to advance this claim until appeal is exhausted on the will action Summary Judgment motion.

[24] All this complication arose after I had already made some observations about the parties that I will address hereafter. First it is useful to review the criteria for Summary Judgment which bind my mandate.

Criteria for Summary Judgment

[25] Rule 20.04(2) governs Summary Judgment:

The court shall grant summary judgment if,

(a) The court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or

(b) The parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment.

[26] While the new aspects of the Summary Judgment rule are developing with some debate, the old powers have not disappeared. The party seeking Summary Judgment must put forward a case upon which judgment can be granted, meeting whatever onus they have to prove that case. The party resisting Summary Judgment must then respond “putting their best foot forward”[^1], present its best case or risk losing[^2]; “lead trump or risk losing[^3]. The motion judge is entitled to assume that the parties have each advanced their best case and that the record contains all the evidence that the parties respectively will advance at trial.[^4] The responding party may not rest on the allegations or denials in the pleadings but must set out in affidavit material or other evidence, specific facts showing there is a genuine issue requiring a trial.[^5] The essential purpose of the rule is to isolate and then terminate claims and defences that are factually unsupported.[^6]

[27] The new rule broadens the powers of the Summary Judgment motion judge:

(2.1) In determining under clause (2)(a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.

2. Evaluating the credibility of a deponent.

3. Drawing any reasonable inference from the evidence.

[28] Both sides put forward affidavit material and cross examinations on the affidavits.

The Medium is the Message

[29] The very first thing I was told on this Summary Judgment motion when it came before me on October 11, 2012 for a scheduled two days, was that the Moving Party had consented to late filing of the Responding Party factum to October 18, 2012.

[30] The Moving Party argued for a day and a half without the benefit of seeing what may be in the Responding Party’s factum. After the first afternoon of the Responding Party’s argument it was put over to continue on a November date that didn’t occur because of counsel illness. In the meantime I had facilitated a judicial pre-trial with another judge.

[31] I did so because it was immediately apparent that by coming before me on Summary Judgment motion, the individuals interested in the litigation had not had the benefit of judicial insight and input to weigh in their assessment of litigation risk.

[32] This untapped resource appeared to me particularly important as the nature of the dispute unfolded before me. Over what is now a lengthy judicial career I have many times had occasion to observe genres of litigation that are destined to be prolonged, expensive and entirely unsatisfying because the administration of justice cannot solve the real nature of the problem. Estate litigation frequently has that quality.

[33] In this instance there was an additional malignancy. It was manifestly clear that at least some of the siblings who put forward fine and polished legal principles for sober adjudication were in large part simply using the administration of justice as a new arena to continue their chronic arguments and the fine principles as instruments of torture upon one another. All appeared to be in pain but some appeared to relish also in inflicting pain.

[34] My first response to this combat playing out before me was to try to contain it by reminding counsel that I had powers in the Summary Judgment context to hear evidence[^7] and, insofar as it was being asserted that trial was necessary to assess the credibility of the principle players, I would remain their trial judge even if I found that Summary Judgment on documentary evidence alone should not be granted.

[35] To accomplish this strategy I realized I would have to retain my neutral stance at this stage in order to go on to hear oral testimony and fairly assess the issues with the benefit of findings of credibility. All this was with a view to the principles referred to in Rule 1.04 to manage this litigation, allowing further explorations as may be necessary to reach a fair determination of the issues but at the same time rein in the destructive, expensive, hopeless steps to achieve the vindication that these parties seek and no court can give.

[36] However, after five days of hearing I have decided that I should fully express what I have determined. By being as frank, direct and complete as I can, the parties will have a judgment to consider, and appeal or use as a basis for final resolution as they may. Obviously I am shedding any intention to continue in an adjudicative role with this dispute. I am making my call now.

[37] My resolve to speak now on the substantive issues is fuelled by the presentation that unfolded before me. I have reviewed the criteria for granting Summary Judgment in the prior section of this ruling. On October 11 and 12, 2012 when the motion argument began I heard and read from the moving party a structured and supported case which would, unless put into doubt by the responding argument and material, uphold the 2005 will in issue.

[38] The Responding Party’s half day at that stage, unsupported by a factum which counsel had agreed could be filed by October 18^th a week following the appearance, was mere rhetoric. The oft repeated and singular assertion was that John, the beneficiary of inter vivos transfers and residuary beneficiary under the 2005 will is, was and always has been a liar.

[39] Nevertheless I was patient in anticipation of support for that assertion when the factum appeared and argument continued.

[40] The November date was made impossible by counsel illness and that constitutes neutral time but the factum was not filed until January 4^th, just before the resumption of the hearing. There was disagreement in the courtroom as to what had been served. I was given several crucial volumes in the courtroom which were Mr. Teplitsky’s copies. Because I had been maintaining the two box file in my office pending return of the motion, I had the trial co-ordinator check the filing office to guard against the appearance of disorganization and failure to file and serve if it was really the court’s mistake. No such filings were located.

[41] Accommodations had to be made so that the Moving Party had a fair chance to respond to the argument made by the Responding Party January 7/8^th, 2013.

[42] None of it had the feel of “best foot forward”.

[43] Besides the assertion that John is, was and always has been a liar, the Responding Party also relied on the volume and complexity of the material and issues as reason why Summary Judgment should not be considered.

[44] Disorganization and repetition does not constitute either volume or complexity. I understand the strategy of skipping around from issue to issue in a cross examination. I am patient when counsel makes a point and promises to come back to the supporting material at a later time. These strategies do not maintain their advantage in argument of a motion. It increases the volume of material certainly when the seminal material is spread out and repeated numerous times in the written record. It increases the complexity for the motion judge certainly because it becomes my task to draw together the assertions made about a particular issue spread over the oral argument and in the materials. But neither of these complications means the material is voluminous nor the issues complex beyond the scope of Summary Judgment.

Partial Summary Judgment

[45] It had been claimed that in making the 2005 will Audrie did not have testamentary capacity; that the will was not properly executed; and that Audrie did not have knowledge and approval of the contents when it was executed. Those claims were not advanced before me. The Responding Party conceded and Robert confirmed that there was no issue as to testamentary capacity, proper execution or that Audrie knew and approved of contents.

[46] Therefore, before going further, Partial Summary Judgment is now granted dismissing the claims of lack of testamentary capacity, proper execution or that Audrie knew and approved of content.

The Responding Party’s Argument

[47] That leaves the issue in the wills action solely to determine whether there was undue influence by John.

[48] It should also be made clear, as the Responding Party stated on the record, that there is no complaint from Bill and Kate about the garage as it was always supposed to be John’s. They acknowledge this as implementation by Audrie of an historical promise. Robert may have different sensibilities about that but they were not argued.

[49] The 50% shares of Trotter Holdings held by Audrie passed to John in each of the wills she made after Ty’s death. It was not clear by what means the Responding Party accept that Audrie’s 50% shares of Trotter Holdings garage land went to John. Audrie only ever purported to do so by will.

[50] The Responding Party relies on passages within case law to anchor his assertion of undue influence. For context I have recorded here more from the cases than the brief segment counsel cited which I have emphasized in bold font because the stark statements cited require context.

[51] In Goodman Estate v. Geffen 1991 CanLII 69 (SCC), 1991CarswellAlta 91, 8 para 41 the court states:

41 What then is the nature of the relationship that must exist in order to give rise to a presumption of undue influence? Bearing in mind the decision in Morgan, its critics and the divergence in the jurisprudence which it spawned, it is my opinion that concepts such as “confidence” and “reliance” do not adequately capture the essence of relationships which may give rise to the presumption. I would respectfully agree with Lord Scarman that there are many confidential relationships that do not give rise to the presumption just as there are many non-confidential relationships that do. It seems to me rather that when one speaks of “influence” one is really referring to the ability of one person to dominate the will of another, whether through manipulation, coercion, or outright but subtle abuse of power. I disagree with the Court of Appeal’s decision in Goldsworthy v. Brickell, supra, that it runs contrary to human experience to characterize relationships of trust or confidence as relationships of dominance. To dominate the will of another simply means to exercise a persuasive influence over him or her. The ability to exercise such influence may arise from a relationship of trust or confidence but it may arise from other relationships as well. The point is that there is nothing per se reprehensible about persons in a relationship of trust or confidence exerting influence, even undue influence, over their beneficiaries. It depends on their motivation and the objective they seek to achieve thereby. (Passage emphasized in argument.)

[52] The Responding Party further cites Scott v. Cousins 2001 CarswellOnt 50, 37 E.T.R. (2d) 113, [2001] O.J. No. 19

114 In determining whether undue influence has been established by circumstantial evidence, courts have traditionally looked to such matters as the willingness or disposition of the person alleged to have exercised it, whether an opportunity to do so existed and the vulnerability of the testator or testatrix. The degree of pressure that would be required to coerce a person of Reta's age and state of mental confusion is likely to be significantly less than that which would have the same effect on persons in full possession of their faculties. Dr. Shulman testified to Reta's vulnerability in this respect. The testatrix does not have to be threatened or terrorized; effective domination of her will by that of another is sufficient: Re Crompton; Crompton v. Williams, 1938 CanLII 66 (ON SC), [1938] O.R. 543 (H.C.), at page 583. This, I believe, is a consideration of no little importance in the present case as well as in the increasing number of those involving wills made by persons of advanced age. Other matters that have been regarded as relevant, within limits, are the absence of moral claims of the beneficiaries under the will or of other reasons why the deceased should have chosen to benefit them. The fact that the will departs radically from the dispositive pattern of previous wills has also been regarded as having some probative force.

[53] Further he cites Cosgrove Estate, Re 1988 CanLII 4894 (SK SU), 1988 CarswellSask 527, 73 Sask. R. 42

The law pertaining to testamentary capacity and undue influence is not especially complicated. The burden of proving the former is upon those propounding the will; the burden of proving the latter is upon those alleging it. I propose to discuss only the latter because I am satisfied that testamentary capacity existed on the occasion of making every will.

A discussion of what is undue influence appears in the Saskatchewan Court of Appeal judgment in a case cited as Re Sample Estate, (1955) 1955 CanLII 233 (SK CA), 15 W.W.R. 193 at 198.

To constitute undue influence in the eyes of the law there must be coercion; pressure if exerted so as to overpower the volition without convincing the judgment is a species of undue influence which will invalidate a will. In Wingrove v. Wingrove (1885) 11 PD 81, 55 LJP 7, Sir James Hannen stated:

It is only when the will of the person who becomes a testator is coerced into doing that which he does not desire to do that it is undue influence.

And in Williams v. Goude (1828) 1 Hagg Ecc 577, 162 ER 682, it was stated by Sir John Nicholl at p. 581:

The influence to vitiate an act must amount to force and coercion destroying free agency.

Actual violence, of course, need not be proved but it must be an influence relating to the will itself and overbearing the mind of the testator: Hall v. Hall (1868) LR 1 P & D 481, 37 LJP & M 40, per Sir J.P. Wilde at p. 482; Boyse v. Rossborough (1857) 6 HL Cas 2, 10 ER 1192; Baudains v. Richardson [1906] AC 169, 75 LJPC 57; Theobald on Wills, 11th ed., pp. 29, 32; Jarman on Wills, 7th ed., pp. 34 et seq.; Halsbury, 2nd ed., vol. 14, pp. 230 et seq.

40 It is unlikely that any deliberate and overt act of coercion will ever occur in the presence of eye witnesses. How then is undue influence to be proved?

41There is a general principle of probate law emanating from the case of Barry v. Butlin, (1838) 12 E.R. 1089, which says this. If a will is prepared in circumstances raising a justifiable suspicion that it does not reflect the mind and wish of the testator, then it is for those who propound the will to overcome the suspicion. This is not to say the propounder need prove a negative - that the testator was not induced by undue influence to sign the will - but the propounder must satisfy the conscience of the court that the testator knew and approved of the will's contents when it was signed. In other words, the burden of proof is not shifted by suspicion, but the court must scrutinize the evidence closely in light of the suspicion to determine whether an inference of undue influence ought to be drawn. That is as I understand the law to be from the following judgments of the Supreme Court of Canada: Hayward v. Thompson, (1961) 1960 CanLII 430 (SCC), 25 D.L.R. (2d) 545; Re Martin; MacGregor v. Ryan, 1965 CanLII 17 (SCC), [1965] S.C.R. 757; and Goldswothy v. Thompson, (1974) 1974 CanLII 1360 (SCC), 46 D.L.R. (3d) 237. (passage emphasized in argument)

[54] The Responding Party then put forth nine points from “caselaw or my own creation”. He did not follow the argument in his factum stating that the oral presentation was organized in a manner he preferred. The nine points argued are:

(1) Relation of dependency and control-without it, hard to exert influence and create the motivation to give in

(2) Drastic change in wills

(3) Evidence of testamentary intention – related to (2) Are the intentions reflected in the will?

(4) Character of testator

(5) Character of accused

(6) Anxiety of accused to get the benefits

(7) Independent legal advice - whether lawyer was independent of the accused

(8) John’s dishonesty and inconsistency and nonsensical – trying to hide something

(9) The moral claims, including needs of other potential beneficiaries

[55] My task in analyzing these assertions of factors of undue influence was to attempt to draw together the various times in argument when they were addressed and fit the supporting material to the assertion. For that purpose I am setting out the assertion as put in argument as my best effort to understand the point being made. Comments appearing in square brackets […] are mine to summarily address a factual assertion that has no basis in the evidence.

1. Dependency And Control:

[56] This factor was addressed in the following subcategories

(a) John states if what Kate is saying is true about not letting mother see Dr. Rudderman that would be controlling behaviour which constitutes an actual admission;

(b) financial reliance he put her in;

(c) economic coercion- submitting invoices for the farm-barn renovation when she had no cash;

(d) reliance on John for health care- he administered insulin shots and his control over that [This is unsupported. Audrie did not have insulin shots.];

(e) frail health in 2005 when did that will – Roy Gordon’s notes, John said she wasn’t frail in 2005 [Ample evidence of active good health in 2005 and beyond. Mr. Gordon’s attendance was after an acute problem which resolved.];

(f) relationship of control after 2005 – Dr. Rudderman incident showing that these were not isolated incidents of control but continued beyond with the Rudderman incident which was merely the last instance of dominance and control;

(g) in 2002 and 2003 gave John everything except white house - John got it inter vivos so she could not change her mind;

(h) John mislead her about the value of the work;

(i) John had knowledge of the wills which shows he is involved in her personal decisions and giving him the potential to exert influence. This knowledge is demonstrated by him knowing there was a co-executor in the 1999 will and inferred from the fact that the 2005 will John to pay $50,000 to Kate and Phillip within 6 months since it is not likely that she knew that he had 100,000 in cash it could be questioned did she ask John or did John suggest it;

(j) John was trying to manipulate Audrie and she was aware of it – as per Earl Heiber note in 2000. This raises the question in 2000 to what extent could she resist the manipulation and whether her ability to resist waned over time til 2005. Audrie went to Toronto to avoid John finding out about the will as he had the 1999 will naming Doug Dempsey as co-executor. This was an act of independence which shows there was something to resist but by 2005 she went, back to Roy Gordon, frail, a disaster;

(k) Questionable whether this was a harmonious relationship as Audrie left a phone message “cant stand the fighting anymore” but John said they didn't fight:[^8]

1004. Q. Your Mom and you fought a lot?

A. no.

Q. Fought sometimes?

A. No.

(l) John interfered over relations between Audrie and Kate;

(m) John he took away her vehicle. [Lent it briefly to a relative after an accident].

[57] In an effort to address similar or overlapping issues I have grouped these subcategories of dependency and control:

(i) Dependency.

(ii) Control of finances: [b] financial reliance,[c] economic coercion, [g] intervivos [h] mislead value.

(iii) Control of health and home [a] Rudderman which constitutes an actual admission[d]reliance /shots[e] frail health [f]Ongiong control [l] car.

(iv) Control of relationships and testamentary intention[i]knowledge of wills[j]manipulation[k]interference.

(i) Dependency

[58] Dependency is the result of handing over control (ii)(iii)(iv) so need not be separately considered. To the extent of a finding that John had control and there was nothing Audrie could or knew to do to retain control there is a commensurate finding of dependency.

(ii) Control of finances

[b] financial reliance,[c] economic coercion, [g] intervivos [h] mislead value

[59] While the Responding Party acknowledges that the garage is properly John’s, it is asserted that John’s affidavit about the garage shows his control over his mother’s income, and her financial dependence. Counsel asserts that a Put/Call agreement was signed around 1994 which had as its purpose that Audrie and Ty have money to live, and John buy them out. Bill was the architect of that agreement. His parents went to the lawyer Bill had used previously, Roy Gordon. It was argued that the Put/Call agreement would be a source of money for Audrie such that John not paying her out under that agreement raises a triable issue that he put her into financial dependency.

[60] The remaining topics all relate to the inter vivos transfer. Recall that the Responding Party has stated in the factum that “Although the legal issue of whether there was farm fraud in the Will Proceeding is virtually identical to the legal issue of whether there was farm fraud in the Gift Proceeding, the determination of the fraud issue in the Gift Proceeding is not before the Court on this motion.”[^9]

[61] John has done renovations at the residence and other buildings but the most expense was for the restoration of the barn.

[62] In his affidavit John deposed:

67. ….My mother and I, both knowing that demolition and disposal of the barn would be very expensive, agreed that I would try to rebuild the barn. She assured me that the farm would be mine someday and that it would be in her will. I was uneasy about this vague assurance and would sometimes ask her how I was to know. She would answer me that I could not know. She would simply say that the will was fair and I would simply have to deal with it. She was always vague and would certainly not discuss the contents of the will with me. To deal with my concern, we arrived at an arrangement in which I would record my time and expense for which she would give me notional financial credit. I rendered two accounts to my mother which she signed evidencing the value put into this project. Attached as Exhibits “N” and “O” to my affidavits are copies of an interim invoice dated November 13, 2001 and a final Invoice dated December 23, 2002 in the amounts of $172,822 and $574,000 respectively.

72 The transfers of the residence and farm from my mother’s name to hers and mine jointly were to recognize the contributions that I had put into improving both of these properties and were to be in lieu of payment on the invoices that I had produced for the residence and the barn on the farm.

[63] Invoices for renovation of barn are dated one November 13, 2001, signed by Audrie April 29, 2002 and the other dated December 23, 2002 signed by Audrie December 28, 2002. She transferred the farm in July 2003.

[64] In fact the invoices relate only to the barn. The total approaches $740,000. The only evidence of the value of the farm land is John’s estimate of $5-600,000. In his submissions Mr. Scott suggested this was not a best use value in a rapidly developing location.

[65] In cross examination John does not purport to know the actual cost of the renovation. He says the invoices were a device that he and Audrie came up with to demonstrate value of work as against the land. She signed them. There is no evidence he sought payment. Kate opines that a debt of that magnitude would weigh heavily on Audrie and make her feel that she owed John money she didn't have.

[66] The Responding Party asserts that in the invoices John doesn’t tell his mother how much is money he spent vs how much he is claiming from her for the renovation; No information of amounts actually spent; Nothing re a fair price except John saying so and he is not an expert. There is nothing to disclose actual out of pocket payment and is therefore misleading. It is submitted that Audrie was likely to assume that John spent $740,000 on labour and time

[67] The invoices have entries for rental of a skid steer that was actually borrowed not rented. The invoices include PST and GST that may not have been paid.

[68] To the extent that John explains the strategy, and other reasons why Audrie did the transfers, counsel suggests he is being inconsistent with 67-72 of his affidavit.

[69] It is submitted that John said the transfer of farm was a surprise but that is inconsistent with his assertion that the transfer was for the work and labour as per 67-72 of his affidavit.

[70] I am asked by the Responding Party to take judicial notice of several facts:

• Barn used for storage, John said reason to clean up earlier storm mess: No one in sound mind would renovate that barn.
• No one in sound mind would renovate a barn for the ridiculous amount of $740,000 especially on land worth $5-600,000.
• It makes no sense to spend $740,000 to renovate a barn first to clean up a mess, second for history on only third to make it useful.
• An elderly woman like Audrie would not have her own informed opinion as to appropriate cost.

[71] By providing this misleading invoice it is submitted that John “scammed” Audrie. She relied on what he said and gave him the farm. Since the transfer was a fraud the inference could be drawn that Audrie didn't will the farm to Kate, Phillip and John because she thought she gave it to John in 2003 for value. “She didn't know John scammed her and had she known she would have set aside the transfer or adjusted for the fraud in the will.”

[72] It is submitted we know she would not have let it go because she wanted to give farm to John, Kate and Phillip which was only interrupted by the 2003 transfer following on the invoices. For this submission counsel looks to the 2000 will and 2002 will in which Phillip and Kate are beneficiaries of some land as well as John. Otherwise, in relation to testamentary intention counsel has averted to the 1995 mirror wills (which benefitted all the children) and that after Ty’s death John’s coercion began immediately.

(iii) & (iv) Control of Health and Relationships

[73] Kate describes in her affidavit, in addition to John taking steps to prevent Kate and Audrie being alone together, incidents including the following in which utterances from Audrie and contemporaneous comments from Doug Dempsey’s observations cause Kate to believe that John was interfering:

Para 13. In or about- November of 2004, Sue and I arranged a birthday party for her father (my uncle Doug Dempsey) at the Granite Club in Toronto. One reason for the party was to get my mother out of the house. My mother initially said she would come and then later changed her mind because, according to what she told me on the phone, she thought that she would have trouble with John if she went to the party. We cancelled the party when my mother said she would not attend. Below is a copy of an email Doug sent his daughter Sue about this (approximately three years later) in which he stated that “John is very strange when it comes to Kate and his mother”

02/05/2007 Hi Sue

When you and Kate were trying to put together the birthday/meet Adam dinner, and Sis expressed some reluctance, John reinforced it. As sis says what John doesn’t know won’t hurt him or her. Efrieda is a bit of a chatterbox and we hope she doesn’t tell George who will certainly tell John. Strange family. Love Dad and Anita.

Para 14. Following a great visit I had with my mother in Florida in January of 2007, I received an email from Doug asking me to make sure that Kathleen did not mention it to John because it would “cause problems”. In the email (a copy of which is re-produced below), Doug also stated that it is a “shame that such conflict prevails”. There was no conflict between me and John other than the fact that he would not let me spend any time with my mother (alone).

Hi Kate –

As we sat at the breakfast table we chatted about your visit .Sis suggested that we should not mention your visit to John as it would just cause problems. It would be a good idea to ask Kathleen to keep it quiet as well. It is a shame that such conflict prevails. Talk to you soon. Love UD and Anita

Para 15. June 2007 Aborted Doctor’s Appointment

My mother was in significant pain as a result of her deteriorating health. Contributing to her pain were sores on her legs and elsewhere which were a form of Skin cancer, I urged her to see Dr. Rudderman in Toronto who could refer her to a specialist (she had not had any success with the physicians she had seen in Barrie). My mother was very happy with this suggestion and we made the appointment. However, shortly before the day of the appointment, she called me and left the following message which I saved. I saved the message because I felt that I might never hear her voice again (I did not foresee that I would need to rely on it in future litigation:

It’s Mom calling, Kate. Don’t bother making the appointment with Dr. Rudderman please because I’ve upset John so much. I ran it by him and he’s not very happy with the whole deal and I can’t stand fighting anymore about it. He gets so upset so…. I just…forget about the whole thing. Thank you very much.

[74] The Responding Party asserts that John conceded that preventing Audrie from going to a doctor’s appointment would be control. Since John denied knowing anything about an appointment with Dr. Rudderman and denied interfering with Kate’s relationship with Audrie, and denied that Kate’s visiting Audrie upset him, there was cross examination about whether he was saying Audrie was a liar or demented, and Doug Dempsey was a liar and Kate was a liar.

[75] John’s negativity towards Kate is explored around her role in arranging care for her mother in Toronto is 1995

A. 727. Q. What about the time when your Mom had the stroke in 1995, whenever it was – or ‘3, whenever it was, and your sister Kate spent time with your Mom in Barrie and in Toronto at the hospital helping her. Is that not assisting in her care.

A. Yeah. It was in RVH in Barrie, Royal Victoria Hospital. • …

Q. In the rehab hospital in Toronto?

Q. She arranged for that, right?

A. My memory is that Uncle Doug arranged for it.

Q. Okay. And do you have any memory as to whether Kate was involved in helping your Mom through that period of rehabilitation?

A. No, I was.

[76] Cross examination about accounting for a premise that the witness denies is ineffective to establish a fact but it can be illustrative of the witness’s attitudes if the questions are fairly put. Confident his questions were fair, counsel argues “John is unbelievable. John refuses to accept reality that Doug was expressing these genuine feelings… He won’t back up his uncle, his own witness (Doug Dempsey) and John not accepting the truth that they are talking about him. Say that at trial and see how far he gets.”

[77] As to Audrie’s 2007 message that she had unproductively run the medical appointment by John, the Responding Party submits that is control. It is urged that if it is true it is extraordinarily compelling, controlling her health care, in the words of the deceased it speaks to control and character.

2. Drastic Change in Wills

[78] The changes in terms are set forth in schedule A.[^i]

[79] The Responding Party finds it drastic that in 1995 when Ty was alive all the children got part of farm whereas in 1999 and 2005, wills prepared by Roy Gordon, Kate and Phillip get no part of the farm. It is asserted that the fact that in the 2000 and 2002 wills, prepared by Earl Heiber, Kate and Phillip get a part of the farm is more than a coincidence. John goes from receiving equal to Kate and Phillip to taking all and that as John wants the farm he got it inter vivos in 2003.

[80] Another drastic change asserted is the change in executors. After naming 1999 John and Doug Dempsey in 1999, she tells Earl Heiber John knew Doug was co-executor. In 2000 she named Doug and his wife Anita, for the 2002 and 2005 will she adds Jim Bell who is asserted to be a friend of John and Roy and the one who lent John the skid steer that John assigned a rental amount for in his barn invoices. In 2005 it is John and James Bell.

[81] Another change described as “bizarre” was that in the 1999, 2000 and 2002 will Audrie attached a list of personal property to go to various persons. In the 2005 will she leaves residue to John without specifying such a list. It is asked rhetorically What would cause her to disentitle Phillip much less Kate? Did she not care about them or about the personality anymore?

[82] Finally a drastic change is asserted in benefitting George Pohle over her children. In wills from 1999, 2000, 2002 he got $5,000 then he jumps to getting the white house which John says worth about $60,000. Asking who wants him to get that, the Responding Party asserts John put money into fixing it up, John is close to George who was but one employee at the garage. Another employee says they were all close to Audrie, George no closer. The emphasized point is not that of favouring George over Phillip, it is that George had no higher relationship than others. $5000 is some recognition of closer relationship that shows Audrie did feel some inclination to give him something, but why the elevation? On a Summary Judgment motion why believe employees are wrong rather than draw inference of John’s undue influence?

[83] I must say immediately that the Responding Party used considerable innuendo in making the point that John wanted George to have the white house suggesting several times that John and George are partners but will not admit it. The homophobic undertone in this submission is especially troubling if the truth of such an assertion was irrelevant to Audrie’s esteem for John and George whom she saw daily.

[84] It was argued that there was no reason for the drastic change based on John’s renovations of the residence giving rise to recognition for the work or a promise of the residence since John also did work on the residence for no payment while Ty was alive predating the 1995 mirror wills which could easily have included a term that he would inherit the residence.

[85] Audrie, who continued in the residence until her death, transferred it from her own name to herself and John as joint tenants in 2000.

3. Evidence of Testamentary Intention –( related to 2) Are the Intentions Reflected in the Will?

[86] This is one of the categories in which the matter of the sensibilities of the Responding Party are addressed and is tied to point 9 Moral Claims.

[87] Counsel for Bill and Kate mused that Bill was gone by 1996 and Robert was gone by 1989 but there was no reason to disinherit Phillip who contacted and visited his mother regularly from his home in PEI or, Kate who remained as attentive as her career and living circumstances allowed. It was asserted that that there was no reason for this drastic change. Translation: they didn't deserve to be left out of the will. It is argued that, since John has given no explanation why the mirror wills in 1995 where both parents had the common idea to benefit the children equally except the garage to John, the Moving Party cannot meet the onus on Summary Judgment to show there is no triable issue.

[88] The Responding Party argues there is no evidence that Audrie was subservient to Ty or his wishes in 1995. They avert to subsequent indication to Kate that she wanted to leave all the children better off and there was no reason to think she departed from a wish to share equally. It is argued that since coercion is in private there is no expectation that a private person like Audrie would tell neighbours about such coercion, that she liked to keep up appearances as evidenced in the affidavits that she was always dressed up well and wanted some notice of visits so she had time to put on her lipstick. The Responding Party asserts that undue influence began the minute Ty was buried and it escalated around the time of the will and was still there in 2007 when Audrie cancelled the appointment with Dr. Rudderman after running it by John.

4. Character of Testator

[89] One factor argued was Audrie’s health. Roy Gordon’s notes for the 2005 will included “She said she was physically week. AT was weak and in a wheel chair.” The Responding Party points to John’s refusal to acknowledge her weakness:[^10]

Q1365- .. in 2005 your mother was quite frail?

A. In 2005, no.

[90] The Responding Party asserts Audrie was a private person.

5. Character of Accused

[91] It was submitted that John’s demeanour and temper created a relationship of control without which there could be no undue influence. As to the 2000 and 2002 wills counsel noted Audrie was aware of control but queries - Is she able to resist in 2000?

[92] The Responding Party relies on Earl Heiber’s notes which referenced the 1999 will, and Audrie’s statement that “This past holiday John became quite angry when told Doug was a co-executor of the will (1999)” incidentally arguing that this also showed John was a liar. He referred again to the note “-John felt only he should be executor. No undue influence apparent, sound mentally, clear, lucid”.

[93] The Responding Party argues that Earl Heiber, as a lawyer, must ask but that he is not a psychologist and had met Audrie only a short time and she was a private person so his assessment is not dispositive.

[94] In Earl Heiber’s notes Audrie went on: “John being very selfish as if he is the only child as if he’s manipulating it so he’s the only child”….“he has been very good to me”.

[95] The Responding Party argues it is not denied that John was good to her but adds the gratuitous detail that he cremated Audrie before others could see her. More on point is the comment: “Why go to Earl Heiber? Good for her – go to Toronto so John wouldn’t find out.”

6. Anxiety of Accused to Get the Benefits

[96] John’s affidavit explains of the Put/Call agreement in 1994:

48. I was anxious to have some formal contractual recognition for my position. This was when my parents involved Bill in developing their business plan. My parents wanted to accomplish two things in this business plan. First, they wanted to assure themselves of a living by keeping me running the business. Second, they wanted to make sure that when they died the garage would be mine.

[97] He explained his opinion:

49 The put-call agreement that Bill developed was way beyond what my parents wanted or needed. His plan made it possible for me to contribute money to my parents’ welfare in exchange for a share of the business.

[98] He was asked the purpose of the put-call agreement:[^11]

Q. And that was to facilitate their retirement?

A. No.

Q. That was to facilitate their ability to live, correct?

A. No.

[99] The Responding Party argues that John is not acknowledging obvious truth and as such he is not reliable, observing that lawyers draft affidavit to state the obvious but on the contrary John’s answer that he doesn’t view the put-call agreement was to help his parents out financially is evidence of his control and Audrie’s financial dependency. The Responding Party acknowledges “No doubt he was supporting her. John says Audrie never came to ask him for money [saying] John I am doing…, I want … and he gave her the money” but the Responding Party argues there is no evidence about the nature of the discussion when Audrie came to John for money, no evidence of anything being denied but urges the court to consider that it should not take anything John says, at face value because his evidence is wholly unreliable. While it is true that there is no evidence of Audrie being denied anything, the Responding Party argues John put her in a position where she had to go to him for money asserting she should have been receiving rent for use of the land upon which the garage was situate because she retained ½ the shares of the holding company that owned the land.

[100] John didn't recall whether rent was paid. The Responding Party asserts that answer likely not truthful, likely means not paying rent.

[101] The Responding Party found John’s answer disconcerting when asked to explain:[^12]

1454 Q. What did you meant that it was beyond what your parents wanted or needed?

1459 A. I meant that it was a complicated document. ….the plan that had been underway for some time at that point was no that they didn’t need to be paid because the business existed at that time as a sole creation of my work.

[102] The Responding Party argues this tells us that John disregards the contract obligations to his parent,… shows arrogance…. disregard and counsel describes it as a stunning answer.

[103] As to why the put/call was in place John was questioned about his concerns in his affidavit:

47. Things had improved a great deal for the family and for the business but this was made possible only by years of long days and no holidays on my part. By the early 1990s, my parents and I were having discussions about me fact that I had given up a lot to run the business and was doing so with little or no pay. I told my parents that I did not mind supporting them but I did not want to be supporting my siblings. They understood and readily agreed and constantly assured me that the garage would be mine one day. But my knowledge of family relationships made me feel insecure about these promises.

48. Q. All right. Well in 2002 were you worried about your Mom breaking her promise to you to put the farm in her will and give it to you?

A. No

203. Q. You were never concerned about your Mom keeping her promise, right?

A. Not overly.

204. Q. No. What about the promise to give you the garage? Was that something you were concerned that you – about in terms of your Mom and your dad reneging on that promise?

A. A huge amount of time. When?

205. Q. In the early 1990s were you concerned?

A. Was I concerned in the early 1990s?

206. Q. That they would screw you, to put it bluntly, out of the garage?

A. Oh, not by the 1990s, but – no, not by the 1990s.

207. Q. Well were you concerned at any time that your dad or your Mom would go against their promise to give you the garage?

A. Yes.

208. Q. Well when did that – when did you start feeling that anxiety or concern?

A. Late 1980s.[^13]

[104] Counsel argues this is inconsistent with para. 48: “I was anxious for contractual recognition”.

7. Independent Legal Advice - Whether Lawyer was Independent of the Accused

[105] Earl Heiber is said to be independent but didn't know Audrie, a private sort of person, long enough to accurately opine on whether there was undue influence.

[106] Roy Gordon, on the other hand, was familiar with the family. He had acted for Bill. He knew Audrie when she was on the school board and he was mayor. He acted for Audrie and Ty. He became increasingly friendly with John over a mutual interest in a community project. He was not John’s usual lawyer.

[107] His independence is challenged because somehow John became aware that Doug Dempsey was a co-executor of the 1999 will, because Audrie twice saw the need to seek out Heiber, because Kate and Phillip didn't get land in either will Roy Gordon drafted which is more than coincidence and because John was present making lunch when Roy arrived to take instruction on the 2005 will.

[108] The Responding Party does not accept that Roy’s note that Audrie would lose control if she did the inter vivos transfer constituted independent legal advice despite the follow through declaration he prepared for John’s signature . They do rely on his observation that Audrie was weak and in a wheel chair when 2005 will instructions were taken.

8. John’s Dishonesty and Inconsistency and Nonsensical – Trying to Hide Something

[109] The argument of this allegation took the form of first asserting a premise that John would want to prove to avoid a suspicion of undue influence, then review statements deposed in his affidavit and answers in his cross-examination to support the theory that he was making dishonest self-serving statements to advance that premise. Counsel stated John needs to come up with reasons why he got the house; for work or because it was promised John would know that an earlier promise would be determinative because if there was a 20 year promise then there was no undue influence.

[110] Counsel therefore reviewed cross examination on the affidavit that the inter vivos transfer was a pleasant surprise. It was argued that John knows that if you are trying to prove no undue influence, you would try to assert no concern or interest in the property. Counsel asserts John makes it sound like an ongoing promise, then he gets it but was not expecting it. Counsel asserts John was trying to appear he had nothing to do with it but he did, that it was “pleasant surprise” not true . Roy Gordon had John sign a declaration of trust that she could use her personal effects though in Joint tenancy.

[111] He was questioned about statements in his affidavit:

67. She assured me that the farm would be mine someday and that it would be in her will. I was uneasy about this vague assurance and would sometimes ask her how I was to know. …

28/193. Q. So then what were you trying to protect yourself from?

A. I was trying to protect myself from some future bad thing occurring,

Q. Like what?

A. Like perhaps the situation we’re going through now

Q. Explain, please.

A. We’re going through a will challenge that questions the legitimacy of decisions taken – taken a decade or more ago; exactly that

65. As I continued to spend time and money on my mother’s residence, just as I had in the case of the garage, I discussed with her the fact that I wanted to help and support her but I did not want to be supporting my siblings. She had been telling me for years that the house would be mine some day. I did not know what was in my mother’s will, I had taken this as a matter of trust between me and my mother for a number of years. ….

66. I did become aware that my mother had put the title to the home in her name and mine jointly but I did not pressure her to do so. [^14]

67. Did you have any involvement in that transfer.

A. I don’t think so

1404. But your Mom didn't tell you beforehand that she was going to do that?

A. I don’t recall don't know, surprised to I don't recall if she told me.

1409 Are you drawing – I’m not sure whether you’re talking about the. Decision to do it or the paperwork.

A. I – I believe I was talking about the decision and, yes, I’m certain that it was a surprise.

And perhaps there’s a blurring of the line between the decision to do it and the actual act of doing it, and I’m unsure of where that blur occurs

I think I was involved in the paperwork … no I’m talking about the other things that were done at the time. But no, in terms of the actual paperwork and the transfer, no

1415 A. I – I think I was involved in paying the legal Bills on it

1416 A- I think so, but I don’t recall. I mean

1417. Q. Anything else?

A. Not that I know of. [^15]

[112] A second category of alleged self serving inconsistency is that John’s affidavit paragraph 72 explained the reason for invoices was to justify transfer of the farm for the work he did but in cross examination he adds other reasons - history and keeping it in the Trotter name. In doing do he moves away from a financial reason or a promise.

169. Q. Why did she feel that was necessary, do you know?

A. No, I don’t know.

170. Q. You never asked her?

A. You know, I probably did. I don’t recall.

171. Q. Well do you recall any of the discussions you had with your Mom about her wanting you to put it in writing, the farm expenses?

A. I think I do. I believe she thought it was very – these were very big jobs, huge undertaking, and my mother had a great sense of history and so she wanted things recorded for history, not just to record the financial dollars and cents but what happened on what day. She was very much involved in the ongoing project of, for instance, the barn we built. She absolutely loved that whole project. And so for her to see that recorded was something that she liked.

176. Q. What was another reason, if there was one? Or, was that the only reason?

A. I would say to keep everything straight and above board, to keep things legitimate.

185. Q. So she valued the history of the home?

A. Yes.

186. Q. That being the case, do you know why she didn’t want the home be recorded as well, so she could have a documented history of your improvements?

A. The home wasn’t being rebuilt.

1184. Q. And you had mentioned, I think, in your affidavit and perhaps the other day, I don’t remember, you said you’d been – you were promised the house?

A. My mother always – and my father too, both always said that I was the child that came with the house and the house would eventually be mine. They always spoke in those sort of terms. said the house would be yours one day?

1187. Q. Did he explain how that was to happen?

A. In a will

1188. Q. He actually said that to you

A. Mm-hmm

1189. Q. and Mom too?

A. yep.

1191. Q. I thought Mom was private about those things?

A. She was, but she would say it in an offhanded manner.

1193.A. He’d say things like, “You’ll be here after I am.”

1199 Q. What about your sister Kate, for example. Was she going to own – did they say that she would be owning it too or just you?

A. No.

1200 Q. Just you.

A. Just me.[^16]

[113] It was asserted that it made no sense for John to say the that third reason for $740,000 expense to repair the barn was to be usable:

253. Q. Why did you decide to rebuild it?

A. Three main reasons

256.A. To clean up an incredible mess

257. A. That’s probably the first and foremost reason

258. A. Number two was to answer to history.

261.A. The third main reason would be to end up with something that’s useable.[^17]

9. The Moral Claims, Including Needs of Other Potential Beneficiary

[114] The Responding Party points to Audrie having five children she loved and no special moral claim from George Pohle.

[115] In (l) of independence and control the Responding Party asserts John’s interference in Kate’s relationship with her mother.

[116] Counsel asserts that of his nine indicia of undue influence, all the indicia are satisfied, supported with credible evidence but he “hit the Jackpot” in the words of Audrie cancelling the Rudderman appointment of a compelling case of undue influence with solid evidence of undue influence.

Analysis of Responding Party’s Argument

[117] I agree with the Responding Party’s submission that undue influence will be discerned by examining circumstantial evidence.

79.1 do not believe the court intended to suggest that the burden of proving undue influence cannot be discharged on a balance of probabilities by circumstantial evidence – whether or not the circumstances may be described as “suspicious” in some sense. If this were not possible, undue influence would cease to have much practical significance in the law of wills. [^18]

Undue influence is a subtle thing, almost always exercised in secret, and usually provable only by circumstantial evidence: [^19]

[118] I also recognize as significant Mr. Teplitsky’s early submission that the court must examine an accumulation of circumstances that are subtle and nuanced with “no smoking gun”. It is asserted the undue influence was subtle and secret: that Audrie Trotter was private and cared about appearances; she will not be telling people John was abusing and controlling her; if there was undue influence she would not disclose it; witnesses said she was fine but they were not living with her, spending the time; only John knows; he needs to be cross examined; the Crux of the trial: a court will have to decide whether an issue that John a liar, manipulator, control freak and exerting undue influence over his mother; why is he lying to the court speaks for itself.

[119] With his next submission we part company. The Responding Party’s Counsel stated “we are not coming to court with bald allegations”. I find that he came only with bald allegations. A court must examine evidence of an accumulation of subtle and nuanced circumstances. Evidence. Not opinions that John is dishonest in everything he does.

[120] Counsel for the Responding Party asserts one exception of evidence that is not circumstantial: the farm property. He stated “I just happen to be given a gift of these invoices: their validity is a triable issue”

[121] I agree that the invoices require vigilance.

Audrie

[122] The answers to the Responding Party’s argument is what the evidence tells us about remarks from Audrie herself. Certain facts are beyond dispute: Audrie had testamentary capacity. Her 2005 will was properly executed and she knew and approved of its content. That is conceded.

[123] As I painstakingly brought together this affidavit evidence and cross-examination which the Responding Party pressed as indicating the several categories of factors asserted as evidence of undue influence, I was repeatedly struck with the emptiness of the argument. Badgering a witness in cross-examination to an acquiescence on an immaterial point is hardly the great score against credibility. An opposing party having suspicion over a particular event or transaction does not itself make the event or transaction suspect. Slights and mistrust and vigilance between siblings are this family’s pattern. Such unpleasantness tells nothing about Audrie’s motivations and influences.

[124] Audrie had pride of place about the farm and wanted to remain in her home. John was the only one of her children who remained in the area.

[125] Audrie was a woman of consequence in the area with leadership in community projects and service on the school board.

[126] Audrie had persevered through family difficulties and financial challenges.

[127] After Ty’s death Audrie remained active with her friends, travelling with relatives, driving her own vehicle, enjoying regular camaraderie with employees at the garage and speaking her mind on politics, current events and on family accomplishments and foolishness. Her health decline was not a factor until 2007.

[128] Audrie knew her local lawyer Roy Gordon and he knew her and the family.

[129] Audrie had the gumption to find a big city lawyer Earl Heiber when she doubted that her instructions were entirely confidential.

[130] Audrie knew her kids each had different life circumstances and in somewhat shifting alliances had not all gotten along for many years:

[131] Bill was very successful financially and had sound ideas for planning his parents’ financial future but he got in a huff at Ty’s funeral in 1996 and never came to see Audrie again. So be it.

[132] Robert had felt wronged by the family and found it too difficult to re-establish contact with Audrie after leaving home for a final time in 1986. She was so glad to have a chance to see him at a BBQ at Bill’s in 1996. How sad that he never made his way back into her life. So be it.

[133] Kate was so busy juggling her maternal responsibilities and a remarkable career that took her here and yon. Audrie understood that the occasional come-when-you-can visits were all Kate could manage. It was wonderful when she came. Daughters are special. She had a lot on her plate. So be it.

[134] Phillip somehow avoided most of the drama – perhaps because he was born later or perhaps because he lives in PEI and literally avoided it. He was attentive to Audrie and regular in his contact. He was far away. So be it.

[135] So, what plan worked for Audrie?

[136] John had built up the modest family garage business and by 1995 when Audrie and Ty were making wills, the income from that business was the income that provided cash flow for Audrie and Ty’s wellbeing. All parties are in agreement that John was to have the garage business which was left to him in Ty’s will and both parents left him their shares in the holding company that owned the garage land.

[137] There was an optional put/call agreement devised by Bill that provided a formal way for money to flow to Audrie and Ty. They never called. Once John put. Then Ty was dead and the formality wasn’t used again.

[138] Rather, John put Audrie on salary from the garage where she did no actual work. She had unfettered access to the products in the convenience store and gas for her vehicle. John took care of whatever the expenses of the residence might have been and provided Audrie with cash when she asked. There is no evidence from any source that she was denied any request or that providing for her was made conditional in any way.

[139] Bill and Robert were not around at all to observe the relationship between Audrie and John.

[140] Kate was present sporadically when she could be, and from time to time often enough to see a need and attend to it. Audrie had a stroke in 1995. Kate had contacts in Toronto through which she arranged an excellent rehab placement for Audrie in Toronto. She visited. John visited but neither at the same time. It is easily discernable that they were not kept aware of the other’s role. John had thought Audrie’s brother Doug Dempsey made the arrangements. John did credit Kate with arrangements she had made on a different occasion in Barrie. This rehab situation is an example of Audrie thinking it wise not to share with John information about her relationship with Kate, nor did she discuss with Kate what John did.

[141] We know from Kate’s affidavit and examination that she didn't have much information about John and she expresses that mother and daughter conversation focussed on subjects that gave them more pleasure. We know from Doug Dempsey’s emails that Audrie took pains not to let John know about her visits with Kate while she vacationed away from home. Audrie was sick of the fighting. She said so herself in the phone message about cancelling Dr. Rudderman.

[142] Doug Dempsey and his wife saw his sister Audrie regularly and she trusted Doug to make him co-trustee of her 1999, 2000 and 2002 will. He testified before his death strongly endorsing the care John had taken for his mother and rejecting the suggestion of undue influence. Audrie’s reason for not continuing with Doug as a trustee was her own view of his interest in health products that she thought foolish. It is obvious she spoke freely to Doug about her children’s estrangements. He observed it was a “strange family”. Audrie’s reason for moving away from Doug as trustee because she thought his new interest was whacky. Right or wrong Audrie had her opinions and wasn’t afraid to act on them.

[143] Phillip and his wife Anne Marie were also present in Audrie’s life for annual vacations and weekly by telephone. They too endorsed John’s care of their mother’s needs. Phillip averts to disagreements between Audrie and John. How natural in any family but particularly this one where each had passionate views and expressed them. Phillip observes that Audrie usually won these tiffs but also points out that Audrie didn't like attending medical intrusions and John sometimes had to insist.

[144] Comments from Audrie have been ferreted out that she didn’t approve of some of the renovation choices in the house and that the barn renovation was a bit much. In the broad picture of significant and often necessary accommodations made in her residence and her use of the renovated barn to enjoy the view it provided of the lake, these comments do not signal a resentment in John’s control of these choices. Audrie wanted to be in the residence. When changes are made in anyone’s home there will be opinions about one choice over another. She openly criticised some of John’s choices. She averted disapprovingly in the confidentiality of instructions to her lawyer that “John being very selfish as if he is the only child” as if he’s manipulating it so he’s the only child but “he has been very good to me”.

[145] The inescapable finding that does not require a trial to fully appreciate is that Audrie was nobody’s fool.

[146] Audrie appears to have organized her life, at least after Ty’s death, in every way to her liking. There appears to be only one failure in her accomplishment in achieving her goals: she could not get her children to put aside their rivalries. Those who are in this litigation remained suspicious and blaming of one another from childhood to ripe adulthood, from the beginning to the end of the evidence before me. I find as beyond dispute that Audrie knew this long before the court did. She accepted what she could not change, avoided conflict by choosing not to discuss with one child her relationship with any other. She instructed two different counsel, one a friend and one an independent stranger, four times in wills and twice in inter vivos transfers as to the disposition of her assets, as her intentions evolved. The reasons given to counsel, on each occasion, were supported by her circumstances as they evolved. Each assessed the issue of undue influence and both were satisfied. Audrie had found the best way to advance and protect her own interests was to place responsibility for her wellbeing in John’s hands and she did not ever give any indication to anyone that he EVER let her down.

[147] Earlier I reported the view of the Responding Party that “The Crux of the trial: a court will have to decide whether an issue that John a liar, manipulator, control freak and exerting undue influence over his mother. Why is he lying to the court speaks for itself.”

[148] I take a different view. I learn from the case Re Cosgrove Estate[^20] cited by the Responding Party that what is required is a consideration of coercion which caused Audrie to do what she would not have otherwise done.

It is only when the will of the person who becomes a testator is coerced into doing that which he does not desire to do that it is undue influence.

And in Williams v. Goude (1828) 1 Hagg Ecc 577, 162 ER 682, it was stated by Sir John Nicholl at p. 581:

The influence to vitiate an act must amount to force and coercion destroying free agency.

[149] The findings I have made thus far center on Audrie. Audrie was a feisty, informed, independent spirited woman who had valid reasons for doing what she did. When I make the observation she was nobody’s fool I am troubled by the thought that some of her children are stepping forward to say otherwise. They do so on what I find to be bald allegations based far more on their opinion that John is a liar than meagre evidence that is too equivocal to demonstrate such an accusation. Their assertions are contrary to those of people who actually saw Audrie regularly, Audrie’s own words to people whom she spoke to about her children, legal opinion of two lawyers under a duty to consider such factors and her apparent satisfaction with arrangements she put in place.

[150] However, even a feisty informed independent spirited woman who knows her kids better than anyone can be defrauded. So I turn to the evidence which counsel has described as “evidence that is – not circumstantial: the farm property”. He stated “I just happen to be given a gift of these invoices: their validity is a triable issue”.

[151] In other words, the bald allegations came first. The Responding Party, knowing nothing of these invoices, was already fully convinced that John was a liar.

[152] I have reviewed the most questionable aspects of the barn invoices at paras. 60 – 72. The invoices clearly do not differentiate between money spent and money’s worth. No one is claiming or has claimed payment of the amounts showing on the invoices. Remembering that I am in a Summary Judgment context, I look to the evidence presented by the Responding Party to raise a triable issue that Audrie was defrauded and such fraud taints not only the inter vivos transfers but ultimately that Audrie would not have made subsequent wills to reward the fraudster, in particular the 2005 will the proponents seek to uphold by Summary Judgment.

[153] The Responding Party puts forward Kate’s opinion that Audrie would have felt she owed the money, knowing she had no cash to pay it, would have felt compelled to transfer the property.

Perhaps worse is the fact that we now know from John’s Affidavit that he presented her with accounts for hundreds of thousands of dollars. Anyone who knew my mother would know that owing this amount of money to John (or anyone) would be terrifying for her. My mother and father struggled financially for many years. My father had mismanaged my mother’s inheritance and we were a fairly poor family growing up.

[154] The Responding Party, having been told that I would not be taking judicial notice that this was not a fair price for barn renovation, asserted that there was no evidence this was a fair price for barn renovation.

[155] The Responding Party further relies on the transcripts of John’s examination on his affidavit and urges that there are numerous examples of lying. If not, there are at least assertions put, answers given, and no way to tell if John is lying without a trial.

[156] Since I did not approach John’s evidence predisposed to a certainty that he must be lying, I did not share the views expressed that his answers were clearly inconsistent, bizarre, or arrogant.

[157] Fundamentally, John gave an explanation that when he undertook the larger project on the barn by his own expenditure and labour, he wanted some reassurance that he was doing it to benefit his mother and himself but not his siblings. He created the invoices which showed the tasks done and assigned a value to each task. He estimated based on local information. He did much of the work himself and borrowed equipment when he could so that out of pocket expense, at least in relation to the skid steer, was minimized.

[158] Audrie signed off on the invoices. Audrie didn't mention any amount owing to John when explaining to Roy Gordon why she wished to transfer the residence and later the farm to herself and John in joint tenancy. There is no evidence that any demand for payment was made.

[159] Roy Gordon took instructions for the transfer of her residence on November 15, 2000 and records in his notes that he told Audrie it was a bad idea, that she could lose control. He noted that Audrie stated she trusted John because he looked after her so well. Mr. Gordon recorded that he told Audrie to let John know that the transfer was only for estate purposes, that he had no beneficial ownership until her death. Mr. Gordon noted he would do a declaration re possessions. He notes Audrie said good idea – proceed.

[160] Consistent with those instructions is a December 11, 2000 declaration of beneficial ownership of contents signed by John, which recites Recites that the transfer had already been done “Dec _________2000”.

[161] This brings into question how much John knew about the transfers. He was cross examined extensively. Nothing has been uncovered to support the suspicion that he suggested, facilitated or compelled Audrie’s attendance on Roy Gordon to instruct the transfer. He volunteered a response that he had been involved in paying for the legal services. This is hardly surprising since the evidence is that he looked after Audrie’s expenses.

[162] The work on the barn began, according to the invoices on June 15, 2001. This is after the transfer of the house and John signing the declaration of possession from which it can be concluded he was aware of the house being in joint names.

[163] He deposed and supported in his cross-examination that:

65. As I continued to spend time and money on my mother’s residence, just as I had in the case of the garage, I discussed with her the fact that I wanted to help and support her but I did not want to be supporting my siblings. She had been telling me for years that the house would be mine some day. I did not know what was in my mother’s will, I had taken this as a matter of trust between me and my mother for a number of years. This was similar to the situation with the garage. I had contributed to the garage for years on the verbal assurance of my parents that it would be mine some day.

66. I did become aware that my mother had put the title to the home in her name and mine jointly but I did not pressure her to do so.

[164] I have avoided as much as possible in this Summary Judgment motion reliance on John’s disputed assertions in the continuing analysis of whether there are issues requiring a trial. However, his statement that he told his mother he would support her but not his siblings is undeniable. All of the parties to this litigation would have said the same thing.

[165] The transfer of the garage and then of the house are complete before work on the barn begins. Audrie has by this time twice departed from the 1995 mirror will by attending in 1999 upon Roy Gordon, then Earl Heiber on March 13, 2000 to revoke her last will and create a new one. In 1999 she left all the real property to John. In 2000 she directs that 1 acre of the farm be severed for Kate and Phillip and the remainder into residue of which John got 50% and Kate and Phillip got 25% each. By December 31, 2002, after she signed the second farm invoice on December 28, 2002 she revoked again and this time willed the real property to John but directed that 10 acres of the farm be severed for each of Kate and Phillip or 12% of the appraised value of the farm (less 8 acres around the garage). This evolution of her testamentary intention speaks for her now as to what she was thinking when the barn came into issue.

[166] Earl Heiber’s notes from March 13, 2000 identify that Audrie said “John being very selfish as if he’s the only child, as if he’s manipulating it so he’s the only child. He has been very good to me”. Mr. Heiber’s notes state, “no undue influence apparent, sound mentally, clear, lucid, good sense of humour”.

[167] John deposes, having already asserted that he had said he would support her but not his siblings:

67. My mother and I, both knowing that demolition and disposal of the barn would be very expensive, agreed that I would try to rebuild the barn. She assured me that the farm would be mine someday and that it would be in her will. I was uneasy about this vague assurance and would sometimes ask how I was to know. She would answer me that I could not know. She would simply say that the will was fair and I would simply have to deal with it. She was always vague and would certainly not discuss the contents with me. To deal with my concern, we arrived at an arrangement in which I would record my time and expense for which she would give me a notional financial credit. I rendered two accounts to my mother which she signed evidencing the value put into this project.

[168] These are the invoices said to be disproportional, inflated, misleading, irresistible to a woman who had no cash flow and therefore fraudulent.

[169] Here I repeat the theme of the Responding Party that John was a liar.

[170] Consistent with John’s explanation of the genesis of the invoices is the fact that there is no evidence they were presented for payment. Nor were they mentioned by Audrie to Roy Gordon. Her 2002 will was signed two days after she signed off on the invoices. Notes from Mr. Heiber in 2002, if any, were not put before me.

[171] Consistent with the purpose and neutral as to reliability is the fact that John was doing the work himself and recording not only money spent but money’s worth. That he could borrow equipment does not negate the value received. The lack of precision or memory exposed in cross examination is no more an indication of arrogance as asserted than a result of the loose accounting of hours, estimated value of work and equipment that went into the job but for which no payment was demanded or made.

[172] Consistent with the purpose and the effect on Audrie’s thinking is the fact that she was right there. She saw the changes physically. She read, or at least signed off on the narrative of work done and the values assigned. She took herself down to Earl Heiber, the lawyer the Responding Party prefers as being the more distant from John’s potential influence, and expressed in her 2002 will what she thought it was all worth from her perspective at that moment.

[173] Assuming the Responding Party could amend pleadings and pursue a constructive trust based on fraud in the inter vivos transfer of the farm in 2003, what more would a trier of fact learn from a trial about fraud than I can know from the record before me? I already have the benefit of extensive cross examination of John whose lying is asserted as the lynch pin of the argument.

[174] It is the lynch pin because the narrative he deposes is so consistent with the life that Audrie could be seen to be living, with his assistance, that the only way to expose it as a dark tale of undue influence and fraud, on a lady who appeared pretty content to those who saw her often, is to discredit John. Said another way, the only way for the Responding Party to succeed at trial is to show that all the care, stability, financial security and life in her home surrounded by her inherited family farm to the end of her life was really John cheating her into an inter vivos transfer by overestimating the value of work on the barn.

[175] The only value ever placed on the farm is John’s casual estimate of $5-600,000. There is, of course, the spectre of development value that no-one is crass enough to mention except counsel for Robert.

[176] It would be crass in the face of Audrie’s express reason given in a letter to her lawyer giving instructions for transferring the farm:

As you know (John) has put a lot of money and work into the barn and house on the property and John paid off the mortgage. He has shown his interest in the property and now deserves ownership of it.

[177] Bill and Robert could never succeed on any read of the evidence.

[178] A claim for a constructive trust for Kate, Phil and John would enlarge the litigation to inspect a much broader examination of the money and money’s worth John put into the properties. Would we now also launch an accounting of the groceries and gas and trips and upkeep measured against Audrie’s notional salary in the gas station books? Would we measure the hours of personal care John provided consistently and year after year?

[179] I find that Audrie already did that accounting. She decided what it was worth to her to have her family farm and properties maintained and fixed up, what it was worth to her to live there, what it was worth to her have her needs attended to without having to bother with banks and contracts and children who couldn’t agree.

[180] Doug Dempsey knew this. Phillip knew this. Audrie’s lawyers had no reason to doubt this. Without having to place any reliance on John’s evidence which the Responding Party disputes as incredible, I find that the record before me gives a full appreciation of what Audrie wanted for herself and how she went about making it happen. There is no genuine issue requiring a trial.

[181] Summary Judgment is granted dismissing the claim seeking to set aside the 2005 will. I find that subsumed in that dismissal is the issue of fraud in relation to the inter vivos transfer of the farm.

[182] Parties may address costs with written submissions of no more than ten pages together with a Bill of Costs and any offers by delivering same to the judicial secretary in Barrie as follow: Moving Party Bill by March 8, 2013, Responding Party by March 22, 2013 and reply by March 28, 2013.

EBERHARD J.

Released: February 22, 2013

[^i]: B. AUDRIE’S TESTAMENTARY DOCUMENTS AND ASSETS

Wills executed by Audrie Trotter

16. The following is a summary of the provisions of Audrie’s wills:

Date	Executor(s)	Special Bequests	Residuary Beneficiaries
Mar. 6, 1995	Bill and John	1250 shares in Trotter’s Holdings Inc. to John	Ty, but if he predeceases, the 5 children in equal shares (The residue in this will would consist of all assets except the shares in Trotter’s Holdings Inc.) A copy of the will date dated March 6, 1995 by Ty Trotter is included in the materials. Roy Gordon, during his examination stated that Audrie’s 1995 Will was the same terms as Ty’s 1995 will. Audrie Trotter’s will cannot be found.
Oct. 8, 1999	John and Audrie’s brother Doug Dempsey	1250 shares in Trotter’s Holdings Inc. to John To John: all real property being: The “White House” s.t. John paying George Pohle $5,000 The Farm The “Residence” subject to John paying $50,000 to each of Kate and Phillip The Tortuga Beach Club to be sold and to be part of the residue Personal articles as per list	The 5 children in equal shares (The only assets of value in the residue under this will would be the Tortuga Beach club (timeshare) and a small amount of cash)
May 26, 2000	Doug and his wife Anita Dempsey	Personal items as per memo Watercolor painting to Bill Jewellery and silver service to grandchildren $100 to Bill and Robert $5,000 to George Pohle 1250 shares in Trotter’s Holdings Inc. to John The residence to John The White House to John Try to sever two one-acre parcels from the farm and give one to each of Kate and Phillip. The rest of the farm goes into residue.	50 per cent to John 25 per cent to Kate 25 per cent to Phillip (The only assets of substantial value in the residue under this will would be the farm, the Tortuga Beach club and a small amount of cash)
Dec. 31, 2002	Doug and his wife Anita Dempsey as above and James Bell	The residence to John The White House to John $5,000 to George Pohle And aAll as above except: Chattels not listed above to John, Kate and Phillip Several parcels from farm are now 10 acres but if severance is not possible John to pay each of Kate and Phillip 12 per cent of the appraised value of the Farm as a condition to him receiving the Farm An additional 8 acre parcel which surrounds garage to be severed from the Farm and transferred to John Remainder of Farm to John -1250 shares in Trotter’s Holdings Inc. to John	20 per cent to John 40 per cent to Kate 40 per cent to Phillip
July 8, 2005	James Bell and John	Time share interest in Tortuga Beach Club to John The White House to George Pohle In consideration for the previous transfer of the farm and the house to John, he is to pay Kate and Phillip each $50,000 All articles of personal or household use to John	John as to 100 per cent of residue (The residue under this will would consist of only a small amount of cash.)

[^1]: Pallon v. American Home Assurance Co. (1991) 1991 CanLII 7117 (ON CA), 3 O.R. (3d) 59 at 61 (Ont.CA)

[^2]: Pizza Pizza Ltd v. Gillespie 1990 CanLII 4023 (ON SC), [1990] O.J. No. 2011

[^3]: 1061590 Ontario Ltd v. Ontario Jockey Club 1995 CanLII 1686 (ON CA), [1995] O.J. No. 132

[^4]: Dawson v. Rexcraft & Warehouse Inc. 1998 CanLII 4831 (ON CA), [1998]O.J. No. 3240

[^5]: Law of Civil Procedure in Ontario Perrell and Morden 1^st ed page 452.

[^6]: Dawson v. Rexcraft supra

[^7]: Rule 20.04(2.2), Dr. Therese Thomas Dentistry v Bank of Nova Scotia [2010] O.J. No. 743

[^8]: Transcript of Examination of John

[^9]: The only apparent difference being that in the Will Proceeding, the Applicants will ultimately have to demonstrate that Audrie would have changed her 2005 Will had she known about the fraud whereas they do not have to demonstrate that in the Gift Proceeding (they only have to prove that she would not have transferred the fan had she known about the fraud.

[^10]: Transcript ….

[^11]: Transcript of Examination of John Q. 4,5

[^12]: Transcript of Examination of John 1454 - 1459

[^13]: Transcript of Examination of John 202 - 208

[^14]: Transcript of Examination of John 193 – 195

[^15]: Transcript of Examination of John 1401 – 1417

[^16]: Transcript of Examination of John 169-171; 185-186; 1184-1200.

[^17]: Transcript of Examination of John 253 – 261

[^18]: Scott v. Cousins, supra, at p. 72

[^19]: Atkinson on Wills (2^nd edition, 1953),

[^20]: Supra p. 20(??)