COURT FILE NO.: (Pembroke) CV-00000494-0000

MAY 28, 2013

ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE ESTATE OF ALBERT VERCH, deceased

BETWEEN:

KENNETH GEORGE VERCH and DONNA deMANN

Applicants

L. LEVENCROWN, for the Applicants

• and –

BRIAN WECKWERTH, DIANNE LOIS VERCH and BRIAN WECKWERTH in his capacity as Estate Trustee,

M.A. FRASER, for the Respondent Brian Weckwerth personally and as Estate Trustee

Respondents

M.P. SAMMON for the Respondent, Dianne Lois Verch

HEARD: May 6, 7, 8, 2013

TAUSENDFREUND, J.

REASONS FOR JUDGMENT

OVERVIEW

1The Applicants contest the Last Will and Testament of Albert Verch (“Albert” or “Testator”).

2Albert died on March 25, 2008 at age 87. The Testator’s Will was made on October 30, 2003. In his Will, the Testator appointed the Respondent, Brian Weckwerth (“Weckwerth”) as Estate Trustee and left his entire estate to the Testator’s daughter-in-law, the Respondent, Dianne Lois Verch (“Dianne”).

3Dianne is married to the Testator’s son, the Applicant, Kenneth George Verch (“Ken”).

4Ken and his sister, the Applicant, Donna deMann (“Donna”), are the only children of the Testator.

5After this Application was commenced, Justice Power made a procedural Order on September 1, 2009. It included this term:

2(f) The issues to be tried in the estate proceeding shall be whether the Respondents or one of them unduly influenced Albert Verch or whether he/she coerced him, concerning the contents of his Will; whether at the time of the making of his Will, he was competent to do so; and whether there was a conspiracy between the Respondents;

FACTS

6In this proceeding, Albert was consistently described as a strong-willed, independent person who was a good business man with a sharp mind. During his lifetime, Albert acquired considerable land holdings in Renfrew County near Eganville. He operated a dairy farm of 320 acres and owned considerable waterfront property on nearby Lake Clear. About a third of his farm was the site of the sawmill operation of Ken Verch Forest Products Ltd., a company wholly owned and operated by Ken.

7There was no agreement between father and son regarding the son’s use of his father’s lands for the saw mill operation. Albert himself carried on a saw mill business on that same site in addition to gravel and logging activities on other parts of his farm property.

8Albert, by all accounts, was generally not an easy person with whom to get along. Yet, he had both difficult as well as long standing warm relationships. His brother and sister-in-law lived close by. Albert entangled himself in a long standing law suit against his brother which is said to have cost Albert legal fees in the range of $100,000.00. After Albert’s death, Albert’s relationship with his sister-in-law, unfortunately did not improve. They continued to quarrel.

9Ken described his parents’ relationship to one another as “cool” and that issues between them generally related to money. Albert’s wife died in 1998. She left her entire $30,000.00 estate to her two children, Ken and Donna.

10Ken recalled a normal upbringing which included hunting, fishing and boating with his father and later an arrangement that had them working together on the farm property for more than 40 years without disagreements. The evidence which I accept, speaks clearly and consistently of the fact that father and son said little to one another for more than 10 years prior to Albert’s death. Ken described his father as an independent person for whom you would have to do it “his way” to avoid difficulties with him. In a moment of self-reflection, Ken stated that “the apple does not fall far from the tree” and that both were strong minded and set in their respective ways.

11Yet Albert also had a warm and generous side. He readily and frequently donated to local causes such as having provided 1,000 truckloads of fill for a local seniors’ residence in Eganville. Albert maintained a long professional and personal relationship with the Respondent, Weckwerth, whom he had known for decades. Weckwerth was his accountant for the last 20 years. They would periodically share and discuss political and other local issues.

12Ken and Dianne married in 1998. They lived a half a mile from Albert’s home. Ken and Dianne have 4 children, now ages 13, 12, 10 and 9. As of the date of the Will in October, 2003, only the two oldest children had been born. After the death of his wife in 1998, Albert was described as being lonely. Particularly as of that time, he gradually developed a warm and close relationship with his daughter-in-law Dianne. He approved of Ken’s marriage to her and credited her with turning Ken’s life around. Yet Dianne alone took the children to see Albert. When Albert came to visit, Ken was never there. Ken was simply too busy as he worked 7 days a week. To avoid friction between father and son, Dianne arranged to have Albert meet her and the children at a local mall. In addition, she would have him over for meals in Ken’s absence and she would leave cookies and other baked items in Albert’s mailbox with telephone calls to tell him that she had done so.

13Donna, unlike her brother Ken, moved away from her parents’ home area in her late teens. At 19 she sought post secondary school education in Kemptville. In her early 20’s, Donna moved to Ottawa. She married and had two daughters, who are now ages 40 and 38. She moved to Calgary in 1979 where she still lives and works. Her work schedule limited her time with her parents to one or two visits per year of a week each. As one might expect, she returned for her mother’s funeral in 1998. When her father was hospitalized 2006 for an artery bypass surgery in his leg, she returned for two weeks to care for her father on his return to the farm from the hospital. Although she states that this was in 2003, I find that the medical records confirm that this was actually in 2006. Those same hospital records contain a note to the effect that Albert and his son were estranged.

14Donna described her father to be confused when she cared for him upon his return from the hospital in 2006. She stated that he was then also subject to odd and unusual behaviour. She returned to Calgary and Albert continued to reside on his own.

15When Albert was further hospitalized in 2007, Donna again returned to assist. It was then apparent that Albert’s increased confusion would not allow him to live alone. Arrangements were made with Albert’s lawyer, Delbert O’Brien to prepare a Power of Attorney for Albert to allow Donna to act for him. Albert signed that document after a medical assessment at the hospital confirmed for her that her father knew and appreciated what he was signing. The family then arranged for Albert to move to a nursing home where he continued to reside until his death on March 25, 2008.

16Although Donna was not estranged from her father in the manner that I find Ken to have been, life and geographic distance had, over time, gnawed away at the relationship father and daughter may once have had. Regarding the 2007 Power of Attorney, Albert had initially asked Weckwerth to act. Weckwerth declined as he was too busy. Albert told him that he knew that Dianne was also too busy with her young children and that he would, for that reason, settle on Donna.

17Albert also told his lawyer, Roy Reiche in 2002 and lawyer O’Brien in 2003, in both instances in the course of giving Will instructions that he, Albert, did not have a close relationship with Donna and that she had never done anything for him.

WILL INSTRUCTIONS

18Albert’s long time neighbour, Barry Tiegs stated that in the period 1978 – 1982 Albert had told him that he intended to give his lands to Ken and Donna with his waterfront specifically to go to Donna. Yet that was years before Albert would put his testamentary intentions on paper.

19Roy Reiche has practiced law for 35 years. He had acted for Albert on different matters for over 10 years when Albert first came to see him in 1998 regarding Will instructions. These were preliminary discussions. Albert wanted Weckwerth as his executor with a named alternate. Albert told him that he did not wish to leave anything to Ken and Donna, but that everything was to be left to his grandchildren. The matter went no further on that occasion.

20Albert returned to see Reiche in 2002. Reiche met with Albert on at least 3 occasions that year between March and September. These meetings all related to Will instructions. The following are excerpts from a memo Reiche dictated on the file concerning his discussion with Albert on March 11, 2002:

Met with Albert Verch on today’s date and discussed his Will instructions. He wanted his accountant, Brian Weckwerth of Eganville, Ontario to be his executor. Albert will provide me with an alternate executor. Albert initially advised me that he wished to leave everything to his daughter-in-law, Dianne Lois Verch. His one daughter Donna lives in Calgary and he did not want to leave her anything. He also advised me that his 2 grandchildren (the children of Donna in Calgary) are well launched in their careers and do not need anything. He also stated “Donna never did anything for me”.

With respect to his son, Ken, he advised me that he had already given land to his son, and assisted him in other ways. He stated that his son Ken, is now doing well in the cedar business, and he credits the success to the marriage to his daughter-in-law. “Ken has now settled down and is working”. He advised me that Ken married Dianne 3 or 4 years ago, and as a result, Ken’s life had changed.

It appeared that Albert did not trust his son with any of his assets. I pointed out to Albert that if he passed away and left his assets to his daughter-in-law, his daughter in law could remarry and as a result, none of his assets would remain with his direct descendants.

On further discussions, it became apparent that his real intention was to attempt to keep his assets directly in the family and to benefit his two grandchildren, Phyllis (age 2 ½ years and Luke age 1 year). Albert advised me that the major assets of his estate consist of 1000 acres of land which he valued at approximately $500,000.00. He advised me that at the present time, he has approximately $23,000.00 cash and approximately $10,000.00 worth of lumber and miscellaneous equipment. He also advised me that he had sold all of his cattle last year.

I discussed holding and managing the estate in trust for the benefit of his two grandchildren. He stated “this is what I want”, as much of the land as possible to remain in the family, as he had worked a lifetime to acquire and manage his land.

21Reiche’s last meeting with Albert was in September, 2002. Reiche presented Albert with a draft Will. It named Weckwerth and a third party as joint executors and trustees. The draft Will provided for a trust until the youngest of the children of Ken and Dianne attained the age of 21 when the entire estate was to be transferred to those grandchildren. Reiche also presented a draft compensation agreement for payment by the estate to the Trustees of funds to cover their expenses during the term of the trust. When Albert read the compensation agreement he told Reiche that he did not want all of his estate to go to accountants and lawyers and that the trust agreement would tie up the land for too long. The meeting ended with Albert to review his position. Within a few days, Albert called Reiche with instructions to put everything on hold and to send him a bill for his legal services.

22My take of the evidence surrounding this Will and the compensation agreement which Reiche had prepared is that the proposed arrangement was far too complicated and expensive for Albert’s taste. In fact, Albert did not proceed further with the type of Will arrangement Reiche had proposed.

23Reiche described Albert as a calculating man with a sharp mind and clear views. Albert always came alone to his appointments with Reiche who had the clear impression that he had received Albert’s own wishes. He accepted that Albert had full testamentary capacity. During the course of these meetings in 2002 with Albert, Reiche found him to be consistent with his intention to by-pass his children, Ken and Dianne, with his proposed testamentary bequests.

24In October, 2003, Albert contacted Delbert O’Brien, a Pembroke lawyer of 40 years experience who had acted for Albert in the past. 30 percent of his practice consisted of Wills and Estates. By then O’Brien had drafted more than 1000 Wills during his professional career. Albert arrived alone. He told O’Brien that Reiche had acted for him in the past and that on his instructions, Reiche had prepared a trust Will for the benefit of his grandchildren and that he, Albert, did not sign that Will for a number of reasons. He felt that the grandchildren were still too young and therefore would have required a Trust Agreement for a number of years. Most of his assets were in the form of real estate, which he did not wish to have tied up for such a long period and that legal and administrative costs would eat up more of his estate than he liked.

25O’Brien described Albert in 2003 to be an astute business man who was still mentally sharp and that O’Brien had no concerns regarding Albert’s testamentary capacity. Albert told O’Brien that his wife had died and that he was estranged from his son, to whom he had not spoken for several years. He told O’Brien that his daughter lived in Alberta and that he had not communicated with her for some considerable time. He did say to O’Brien that his relationship with Donna might improve in the future, and if that were to be so that he would take care of her outside of his Will arrangement.

26Albert had apparently arrived on his own to O’Brien’s office. Will instructions then followed. Albert told O’Brien that he wanted to leave his entire estate to his daughter-in-law, Dianne Verch. O’Brien urged that that Albert consider a trust, but Albert was not interested. Albert told O’Brien that he had a high regard for Dianne and her care for her children. He was satisfied that she would use the assets of his estate in the best interests of her children for whom he had great affection. He also told O’Brien that Dianne had taken extraordinary steps for him to see her children, as Ken had forbidden him to attend at their house. For that reason, Dianne had made arrangements to have him meet the children at a mall. He also told O’Brien that Dianne would leave baked goods for him in his mailbox and that she would do that on a regular basis.

27O’Brien again raised with Albert the possibility of including in his Will a trust for his children. Albert told him that he had already dealt with Reiche earlier on such a trust issue in his Will and had declined to proceed in that manner. Albert stated that if O’Brien insisted on a trust for the children that he would go elsewhere to see a lawyer who would carry out his instructions for a Will that did not include such a trust provision.

28O’Brien prepared the Will based on those instructions. On October 30, 2003, Albert arrived alone at O’Brien’s office. He was given the opportunity to review the Will and was then escorted upstairs to O’Brien’s office. O’Brien again reviewed the Will directly with Albert. Albert told him that he was pleased with the Will as it was. This was the type of simple Will which he had wanted. O’Brien then called into his office, his secretary, Dorothy Gorman. Albert signed the Will in the presence of O’Brien and his secretary, who both then, in the presence of Albert, signed the Will as witnesses.

29O’Brien also spoke of the Power of Attorney which he had prepared for Albert four years later in 2007. That document named Donna as the person to act for her father. At Donna’s request, he went to the hospital to take instructions from Albert. He then asked Albert if he recalled the details of his Will made four years earlier. Albert indicated that he did, that he was satisfied with it and that he wanted no changes to that Will.

30Weckwerth is an accountant in Eganville. Both his and Albert’s parents were farmers in the vicinity of Eganville. For that reason, he knew of Albert from the days of his own childhood. He was Albert’s accountant from the late 1980’s until Albert’s death. His relationship with Albert was positive both on a professional and a personal basis. Weckwerth and Albert spoke regularly about local issues which was a matter of interest to both. Weckwerth described Albert as a good business man who operated his farm into his early 70’s. He described Albert to be a strong willed person who could hold a grudge. Albert had told him that he and Ken had not spoken as father and son would for years. For that reason, Albert had told him that Ken would not be left anything in his Will.

31In the fall of 2002, Albert had told Weckwerth that he was upset about the Will that Reiche had drafted for him and that it was not prepared in the manner that Albert had wanted. Albert was also not happy about the legal and accounting costs that were associated with the terms of the trust. Albert also told him that he wanted his entire estate to go to the children of Ken and Dianne. He wanted to accomplish that by leaving his entire estate to Dianne. At the same time he told him that he did not include Donna’s children as both were doing well and needed no help from him. Albert stated that he trusted Dianne and for that reason was quite prepared to leave everything to her. He felt satisfied that she would use his estate assets for the benefit of her children.

32Weckwerth described Albert in 2002 still to have been “sharp as a tack”. It was not until the spring of 2007 that he first noticed Albert to have some memory lapses.

33After Albert’s death, Ken, Dianne and Donna all attended at his office to assist him as Estate Trustee to prepare an inventory of Albert’s estate for probate purposes.

ANALYSIS

34At the conclusion of the evidence, Applicants’ counsel conceded that there was no evidence to support the allegation of a conspiracy between the Respondents. For that reason, counsel formally withdrew that part of the Applicants’ claim against the Respondents.

35Counsel for the Applicants submitted that in taking instructions, preparing the Will and attending to its execution, O’Brien’s actions fell below the expected standard. If that were so, Applicants’ counsel urged that I should find that Albert was unduly influenced. I do not accept this submission. I find that O’Brien more than met the professional standard expected of him. Furthermore, I remind myself that the issue of undue influence here to be tried relates only to the alleged actions of the Respondents or one of them and not the actions of O’Brien nor any other third party.

36With respect to the issue of “due execution”, I already noted that O’Brien fully and completely met the standards expected of him. In any event, it is not included among the issues to be tried. I also note that the Will was submitted for probate, an action which the Applicants initially supported. The Certificate of Appointment of Estate Trustee with a Will issued July 17, 2008. It was only 12 to 18 months later when Ken and Dianne separated that the Applicants proceeded to challenge the Will.

37During the course of this Application and by agreement of counsel, all further activity involving estate assets have been held in abeyance pending agreement of counsel or court order.

38A now well established and accepted analysis for the issues here to be tried was set out by Sopinka, J. in Vout v Hay, 1995 CanLII 105 (SCC), [1995] 2 S.C.R. 876 at paras. 25 and 26 and helpfully summarized by Cullity, J. in Scott v. Cousins, [2001] O.J. No. 19 (S.C.J.) at para. 39:

1. The person propounding the will has the legal burden of proof with respect to due execution, knowledge and approval and testamentary capacity.

2. A person opposing probate has the legal burden of proving undue influence.

3. The standard of proof on each of the above issues is the civil standard of proof, on a balance of probabilities.

4. In attempting to discharge the burden of proof of knowledge and approval and testamentary capacity, the propounder of the will is aided by a rebuttable presumption: Upon proof that the will was duly executed with the requisite formalities, after having been read over to or by a testator who appeared to understand it, it will generally be presumed that the testator knew and approved of the contents and had the necessary testamentary capacity.

5. This presumption “simply casts an evidential burden on those attacking the will.”

6. The evidential burden can be satisfied by introducing evidence of suspicious circumstances, namely “evidence which, if accepted, would tend to negate knowledge and approval or testamentary capacity. In this event, the legal burden reverts to the propounder.”

7. The existence of suspicious circumstances does not impose a higher standard of proof on the propounder of the will than the civil standard of proof on a balance of probabilities. However, the extent of the proof required is proportionate to the gravity of the suspicion.

8. A well-grounded suspicion of undue influence will not, per se, discharge the burden of proving undue influence on those challenging the will: Such suspicion will do no more than rebut the aforesaid presumption. Thus the propounder will need to prove knowledge and approval and testamentary capacity. However, the burden of proof with respect to fraud and undue influence remains with those attacking the will.

39The burden of proof is on the parties alleging undue influence: Vout v. Hay, supra at paragraph 28. Cullity, J. in Banton v. Banton 1998 CanLII 14926 (ON SC), [1998]O.J. No. 3528 addressed this point as follows:

A testamentary disposition will not be set aside on the ground of undue influence unless it is established on a balance of probabilities that the influence imposed by some other person on the deceased was so great and overpowering that the document reflects the Will of the former and not the deceased.

40In Duschl v. Duschl Estate [2008] O.J. No. 1422, Taliano, J. held that:

To constitute undue influence there must be coercion. The attackers of the Will must prove that the mind of the Testator was overborne by the influence, exerted by another person such that there was no voluntary approval of the contents of the Will.

41Referring to the degree of undue influence acting upon the mind of the testator expressed by Ritchie, J. in Re Martin 1965 CanLII 17 (SCC), [1965] S.C.R. 757, the S.C.C. quoted Viscount Haldane in Craig v. Lamoureux, 1919 CanLII 416 (UK JCPC), [1920] A.C.349 at 357:

UNDUE INFLUENCE

In order to render a Will void, there must be an influence that can justly be described by a person looking at the matter judicially to have caused the execution of a paper, pretending to express a Testator’s mind, but which really does not express his mind, but something else which he did not really mean.

42Applying these principles to the facts which I accept, I find as follows:

1. Albert was a strong willed, self reliant and successful business man and farmer. He had a kind and generous side, yet was one who could and did hold long standing grudges.

2. In 2003, Albert still had a sharp and clear mind and a full understanding of the extent of his assets and an equal appreciation of what he did and did not want to accomplish with his Will.

3. It was almost expected and certainly understandable that Albert would have asked Weckwerth, his long standing accountant, whom he trusted and with whom he had a personal relationship, to act as his executor and estate trustee.

4. Albert was clear and consistent that with his Will:

a) he wanted to skip a generation;

b) he did not want to set up a trust;

c) he wanted to leave his entire estate to his daughter-in-law, Dianne

5. Albert’s real intent was to benefit Ken and Dianne’s children, namely his grandchildren. He was fully satisfied and comfortable that he could accomplish that goal by leaving his entire estate in unfettered form to Dianne, whom he trusted to do the right thing. This to Albert meant that Dianne would be able to use his estate for the benefit of her children as she would see fit.

6. Albert duly executed his Will.

7. Had O’Brien insisted on including trust provisions in the Will, Albert would likely not have signed it, but would have found another lawyer to draw a Will in the format O’Brien had then prepared and Albert had signed.

8. The fact that neither Albert’s nor Donna’s children were left any kind of bequest by Albert is fully explained and supported by the evidence. I do not find that this is either an oversight by Albert or the result of coercion or undue influence, nor does it, on this evidence, give rise to suspicion.

9. The actions of Weckwerth from beginning to end were nothing but professional and were entirely above reproach. It was unfortunate and difficult to understand why the allegation of conspiracy on the part of the Respondents was raised in the first place and, more importantly, why it was not withdrawn earlier, in the absence of any evidence to support it.

43Counsel for the Applicants urged that Albert had a moral obligation to provide a bequest to each of his children and to Donna’s adult and self sufficient children. This would have been a fair and just distribution of his estate, according to the position taken by the Applicants. They urge that Albert’s failure to do so should raise a concern of undue influence and call into question Albert’s competence. In support of that position, the Applicants rely on the S.C.C. decision of Tataryn v. Tataryn Estate, 1994 CanLII 51 (SCC), [1994] 2SCR 807 and the O.C.A. decision of Cummings v. Cummings (2004), 69OR (3d) 397. Applicants’ counsel states that this latter decision applied with approval in Ontario the S.C.C. reasoning in Tataryn. With all due respect to Applicants’ counsel, I could not disagree more with that position.

44To the extent that the S.C.C. in Tataryn “re-wrote” a Testator’s Will by providing a modest bequest to his two adult and independent sons on a basis of a finding that they had a moral claim on their father’s estate, is clearly distinguishable from the issues before me. The finding in Tataryn was based on a 1920 B.C. Statute of which the Lieutenant Governor of the day said that it “will tend towards the amelioration of social conditions within the Province.” The S.C.C. interpreted this statute to include claims of non-dependent adult children. Cummings, supra addressed the question of whether a deceased person had made adequate provision for his dependents, as defined in sections ss 58-62 of the Succession Law Reform Act (“S.L.R.A.”). That is not the case before me. None of the parties here who are said not to have been included in Albert’s Will are “dependant” within the definition of the S.L.R.A. To the extent that Cummings, supra referred with approval to the application of Tataryn in Ontario, I conclude that it is obiter dicta and not binding on me, as it relates to these facts. To hold otherwise would be to suggest that, absent obligations under the S.L.R.A., Albert did not have the unfettered right to leave his estate to whom and in a manner only he deemed appropriate. In my view, in the circumstances of this case, he had that unfettered discretion.

45The Application is dismissed.

46If the parties are unable to resolve costs, I may be spoken to not later than 30 days after the release of these reasons.

Tausendfreund, J.