SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NO.: CV-12-112340

DATE: 20130620 CORRIGENDA: 20130626

IN THE MATTER OF THE ESTATE OF CAMILLA MING LI, DECEASED

RE: Wan Fen Zhang, Applicant

-and-

Raymond Young, Respondent

BEFORE: The Honourable Mr. Justice M.L. Edwards

COUNSEL: Lawrence S. Wong, for the Applicant

Robert Watt, for the Respondent

HEARD: June 17, 2013

REVISED ENDORSEMENT

The text of the original endorsement has been corrected with the text of corrigendum (released today’s date)

[1] The applicant seeks an order that would declare a codicil to the Last Will and Testament of Camilla Ming Li (“Camilla”) as being invalid. In the event that the court determines that the codicil is invalid, the applicant then seeks further orders, the effect of which will be to remove the respondent as the executor and trustee of Camilla’s Will.

Background

[2] Camilla died on July 26, 2012. Prior to her death, she had executed a Last Will and Testament, which is dated March 3, 2012 (the “Will”). The applicant was appointed as one of the executrix and trustees under the Will.

[3] The respondent describes himself as a businessman who brokers the purchase and sale of businesses. The applicant describes the respondent as an “illegal practitioner of law”. In support of that allegation was produced an advertisement in a local Chinese newspaper in which the respondent appears to hold himself out as a provider of law services. The advertisement also indicates that a Kaiyune Baksh works in a law firm. Mr. Baksh is a disbarred lawyer.

[4] The respondent indicates in his motion materials that he did, at one time, allow Mr. Baksh to use part of his office space to run a legal practice until November 2011. He further indicates that he has contacts with various lawyers to whom he refers business and who will assist his clients.

[5] It is not disputed that on March 3, 2012, Camilla met with the respondent who prepared the Will, based on terms that had been communicated to him by Camilla in a document that had been typed out in Chinese. Subsequent to the preparation and execution of the Will, Camilla was hospitalized having undergone surgery for cancer. After her surgery, she convalesced at home in the company of a Mr. Shouyuan Zhang who was a doctor of Chinese medicine and is described as Camilla’s lover. Mr. Zhang remained with Camilla at her home between March 8 and 15, 2012. These dates are significant in that the codicil is said to have been executed by Camilla on March 17, 2012. The codicil provides:

I, Camilla Mind Li (aka Ming Li), Dob: 31/5/1959, the Testatrix of the Will dated 3/3/12, signed at the office of Raymond Young & Associates, Toronto, Ontario.

As there are many Executors and Trustees named in the Will, to facilitate and streamline the probate, execution, managing and distribution of the assets, I hereby nominate and appoint Raymond C. Young, Dob: 3/3/1950, as the Executor and Trustee to replace all Executors and Trustee named in the Will.

Raymond C. Young shall have the full powers as a Trustee for all beneficiaries named in my Will, including safe keeping, managing, and investing the inheritance / assets. In addition, Raymond C. Young shall be the Trustee for all other assets that I might entitle to but fail to mention in the Will.

Raymond C. Young shall be entitled to reasonable service fees and reimbursements for performing his duty. He also has the rights to hire professionals to assist him (at beneficiary/estate’s expenses) and assign the authority / task to others at his sole discretion. In the event I have not named a Trustee for an assets, whether inside or outside Canada, Raymond C. Young shall be the Trustee for such assets.

[6] Effectively then, the codicil changed the Will by eliminating the Executors and Trustees named in the Will to provide the respondent with the sole authority to act as the Executor and Trustee.

[7] After Camilla died on July 26, 2012, contact was made between the applicant and the respondent during the course of which it is alleged that the respondent represented to the applicant that he was an Ontario lawyer licensed to practice law in Ontario. The applicant retained the respondent to probate the Will. The applicant signed a “Service Agreement and Authorization” prepared by the respondent and noteworthy in the Service Agreement, the applicant is described as the executor and trustee of Camilla’s estate.

[8] Approximately two weeks after the applicant retained the respondent to probate the Will, the respondent produced a copy of a document, which was entitled “Supplemental instructions to the last Will dated 3/3/12, of Camilla Ming Li, (aka Ming Li), female.”, which purported to appoint the respondent as the executor and trustee of Camilla’s estate. It was not until many months later that the original of this document was actually produced to the applicant.

[9] The codicil purports to be executed by Camilla in the presence of two witnesses, one of whom is said to be the respondent. There are no affidavits of execution that have been produced to confirm that Camilla did, in fact, execute the codicil in front of the two witnesses.

[10] On December 20, 2012, Justice Healey granted an ex parte order in which the applicant was appointed as the administrator during litigation for the estate of Camilla. The order of Justice Healey also provided for an interlocutory order removing the respondent as estate administrator, as well as removing him as the director and officer of Camilla’s business. The order of Justice Healey further provided for an interlocutory injunction prohibiting the respondent from administrating the estate of Camilla until the final determination of the within application.

The Law

[11] This court is asked to interpret the codicil and determine whether it is valid. A will including a codicil is not valid unless it is executed by the testator in the presence of two or more witnesses and the testator makes or acknowledges the signature in the presence of two or more attesting witnesses present at the same time.

[12] As it relates to the alleged suspicious circumstances concerning the execution and validity of the codicil the leading authority in this area is a decision of the Supreme Court of Canada in Vout v. Hay, 1995 105 (SCC), [1995] 2 S.C.R. 876. The Supreme Court of Canada makes clear in Vout that where suspicious circumstances are raised, the civil standard of proof and a balance of probability applies. The suspicious circumstances that are alluded to by the Supreme Court of Canada can be raised in a number of circumstances, the most relevant of which as it applies to the facts of this case are the circumstances surrounding the preparation of the codicil. The propounder of the codicil has the legal burden. If the codicil was duly executed with the requisite formalities, it will generally be presumed that the testator knew and approved of the contents and had the necessary testamentary capacity. However, where suspicious circumstances are present, then the presumption is spent and the propounder of the will assumes the legal burden of proving knowledge and approval.

[13] As I have already indicated in my brief oral reasons the most relevant of the suspicious circumstances concerning the codicil relate to the fact that the respondent has failed to produce affidavits of execution of the witnesses to the alleged signature of Camilla. While Mr. Young appears to be one of the witnesses, there is no affidavit of execution from the second witness. Of greater concern is the fact that the codicil provides that the respondent is to be the sole executor and trustee of Camilla’s Will. One would therefore have assumed that when the respondent was retained by the applicant on August 1, 2012, he would have brought to the attention of the applicant the contents of the codicil. The service agreement that was signed by both the applicant and the respondent refers to the applicant as being the executor and trustee of Camilla’s Will. It makes absolutely no sense that the respondent would prepare a service agreement referring to the applicant as the executor and trustee of Camilla’s Will if, in fact, Camilla had executed a codicil, prepared by the respondent, appointing the respondent as the sole executor and trustee of Camilla’s Will. For this reason alone, there are sufficient suspicious circumstances requiring an explanation from the respondent to satisfy this court that, in fact, the codicil executed by Camilla is a valid codicil that should be accepted by this court. No such explanation has been provided to this court and as I indicated in my brief oral reasons, I am therefore satisfied that the codicil is not valid.

[14] This court therefore, having determined that the codicil is not valid, further orders as follows:

(a) The respondent shall release and return all documents relating to Camilla’s estate, including the original Will, together with all funds received from the applicant with respect to his earlier retainer;

(b) A permanent injunction restraining the respondent from administering the estate;

(c) A permanent order removing the respondent as an officer, director, administrator of any corporate entities previously owned by Camilla, including Camxin Inc.;

(d) An order requiring the respondent to pass the estate accounts for the time period August 1, 2012 through December 31, 2012.

[15] As for the question of costs, I will receive written submissions from the parties, limited to three pages in length, if the question of costs cannot be resolved. If written submissions are not received by June 30, 2013, this court will assume the question of costs has been resolved by the parties.

Justice M.L. Edwards

Released: June 26, 2013

CORRIGENDA

1. Page 4, paragraph 14 – Now reads “…having determined that the codicil is not valid…”.