COURT FILE NO.: CV-12-110494-00

DATE: 20140228

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

EUGENIA COLUMBOS, by her Attorney for Property MICHAEL A. COLUMBOS

Applicant

– and –

MICHAEL THEODORE COLUMBOS, ANDREW COLUMBOS and RHONDA COLUMBOS

Respondents

M. Rintoul, for the Applicant

Self Represented

HEARD: February 18, 2014

and

BETWEEN:

Court File No. 2013-26727

MICHAEL A. COLUMBOS

Moving Party/Applicant

– and –

MICHAEL T. COLUMBOS

Respondent

M. Rintoul, for the Moving Party/Applicant

Self Represented

HEARD: February 18, 2014

HEALEY J.

Nature of the Proceedings

[1] Before me are an application commenced by Eugenia Columbos’s Attorney for Property, Michael A. Columbos (Court File No. CV-12-110494-00, or the “application”), and a motion for summary judgment brought by Michael A. Columbos regarding the Estate of Eugenia Columbos (Court File No. 2013-26727 or “the motion”).

[2] Eugenia Columbos (the “deceased”) died on May 17, 2013. The application was commenced before her death, and seeks an order that she is entitled to possession of a property located at 15625 Highway 48, Stouffville, Ontario (the “Property”), together with an order requiring that the respondents vacate the property, and ancillary relief. The respondents to the application are Rhonda Columbos, Michael T. Columbos and Andrew Columbos, who are, respectively, the daughter-in-law and two of the deceased’s grandchildren. Rhonda Columbos was married to Peter Columbos, who was one of the deceased’s sons, he having predeceased her in 2011. The respondents reside at the Property and have since 1990.

[3] Michael A. Columbos is the eldest son of the deceased, who has applied for a Certificate of Appointment of Estate Trustee with a Will (hereafter the “Applicant”). Michael T. Columbos, who is twenty-eight years of age, has filed a Notice of Objection in relation to the issuing of a Certificate of Estate Trustee to the Applicant. Michael T. Columbos is hereafter referred to as (the “Objector”). His grounds are not set out in the Notice of Objection, but are outlined in his evidence in relation to the motion. The Applicant’s motion requests the following orders:

(1) An order declaring that the Notice of Objection be vacated;

(2) An order that the last will and testament of the deceased dated December 22, 2010 is the valid will of Eugenia Columbos;

(3) An order that a Certificate of Appointment of Estate Trustee with a Will issue to the Applicant;

(4) An order that all prior wills of the deceased were revoked prior to December 22, 2010;

(5) An order that the costs of Applicant shall be paid by the Objector on a full indemnity basis.

[4] The Objector brings a cross-motion for summary judgment seeking the following relief:

(1) An order transferring title of the Property to himself and his brother, Andrew Columbos;

(2) An order that the last will and testament of the deceased dated December 2010 is invalid;

(3) An order that the revocation document dated August 26, 2008 of the deceased is invalid;

(4) An order for dismissal or adjournment of the application;

(5) An order to have the deceased’s accounts protected and/or frozen as well as provided to the Objector for review and to prevent “any further financial abuse incurred by the Applicant on my grandmother’s finances”.

(6) An order directing the Applicant to pay costs on a full indemnity basis.

[5] On October 9, 2013 both the motions and the application were ordered to be scheduled together for hearing.

Motion for Summary Judgment

[6] On January 23, 2014, the Supreme Court of Canada released Hryniak v. Mauldin, [2014] SCC 7, [“Hryniak”] which dictates a new test for summary judgments under Rule 20 of the Ontario Rules of Civil Procedure.

[7] With respect to when summary judgment can be granted, the Supreme Court of Canada stated, at para. 49:

There will be no genuine issue requiring trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process 1) allows the judge to make the necessary findings of fact, 2) allows the judge to apply the law to the facts, and 3) is a proportionate, more expeditious and less expensive means to achieve a just result.

[8] At para. 50 of Hryniak, the court defined the overarching issue to be “whether summary judgment will provide a fair and just adjudication.” Karakatsanis, J, writing for the Court, went on to say that “the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.”

[9] At para. 66 of Hryniak, the Court outlined the approach to be taken by a motions judge hearing a motion for summary judgment:

On a motion for summary judgment under Rule 20.04 the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure under Rule 20.04(2)(a). If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). She may, at her discretion use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.

[10] The court must take a hard look at the evidence on a motion for summary judgment to determine whether there is, or is not, a genuine issue for trial, and may freely canvass the facts and law in doing so. The moving party bears the onus of establishing that there is no triable issue; however, the responding party on a motion for summary judgment must “lead trump or risk losing”: 1061590 Ontario Ltd. v. Ontario Jockey Club, supra, at p. 557. Although the onus is on the moving party to establish the absence of a genuine issue requiring a trial, there is an evidentiary burden on the responding party, who may not rest on the allegations or denials in the party’s pleadings, but must present by way of affidavit, or other evidence, specific facts showing that there is a genuine issue for trial. It is only after the moving party has discharged its evidentiary burden of proving that there is no genuine issue which requires a trial for its resolution, that the burden shifts to the responding party to prove that its claim or defence has a real chance of success: Cuthbert v. TD Canada Trust, supra, at para. 12, citing Aguonie v. Galion Solid Waste Material Inc. (1998), 1998 CanLII 954 (ON CA), 38 O.R. (3d) 161 (C.A.).

[11] As stated in Dawson v. Rexcraft Storage and Warehouse Inc. (1998), 1998 CanLII 4831 (ON CA), 164 D.L.R. (4th) 257 (Ont. C.A.), at para. 17, “[t]he motions judge is entitled to assume that the record contains all the evidence which the parties will present if there is a trial.” It is not sufficient for the responding party to say that more and better evidence will or possibly may be available at trial. The respondent must set out specific facts and coherent evidence organized to show that there is a genuine issue requiring a trial: Pizza Pizza Ltd. v. Gillespie (1990), 1990 CanLII 4023 (ON SC), 75 O.R. (2d) 225 (Gen. Div.), at p. 238; Canadian Imperial Bank of Commerce v. Mitchell, supra, at para. 18.

The Colombus Family

[12] Eugenia Columbos was a widow who lived for approximately the last forty years of her life at her home at 15641, Highway 48, Stouffville, Ontario (“the deceased’s home”). The deceased’s home is located next door to the Property. A commercial gas pump station is located at the front of the deceased’s home. It is common ground that the value of each property is in excess of $1 million.

[13] The deceased had ten children, nine of whom lived to adulthood, the eldest being the Applicant. The deceased’s other children are Joanne MacDermid, Effie Columbos, Penelope Columbos, Alexandra (Sandra) Columbos, Anna Smith, Elizabeth Columbos, Peter Columbos (deceased) and Theodore (Teddy) Columbos (deceased).

[14] The deceased was widowed in 1976. Her daughter Elizabeth Columbos is mentally disabled and has lived most of her life at the Sunbeam Residential Development Center, where she currently remains. Theodore Columbos was catastrophically injured in a motor vehicle accident in the early 1980’s. He had been cared for on a full-time basis at the deceased’s home initially by the deceased and, as her health declined, by his sisters Effie and Joanne, as well as other family members and paid caregivers.

[15] As previously stated, Peter Columbos died in 2011 and is survived by his wife Rhonda Columbos and his sons, the Objector and his younger brother, Andrew Columbos.

The Evidence

[16] As is often the case in estate matters, a chronology is helpful:

February 1990 – both the deceased and Peter Columbos sign an agreement of purchase and sale for the Property for a purchase price of $305,000. The Objector asserts that his father paid the deposit of $10,000. The applicant asserts that the balance of the purchase price was paid by the deceased, and such evidence is disputed. Neither party has produced evidence of the source of the money used for the purchase of the Property.

May 1990 – the Property is transferred to the deceased and registered solely in her name.

1990 – 2007 - Peter Columbos and his family reside at the Property and renovations are made to the Property. It is the position of the Objector and his mother and brother that Peter Columbos paid for all major renovations. These renovations include converting the attached garage into a family rec room, and building a two-storey detached garage. It is asserted that, in addition, Peter Columbos invests large amounts of his own money and labour and time in upgrading the property, including replacing a septic system, installing new roofs, paving the driveway and replacing and repairing plumbing, electrical, heating, water tanks and softeners and other home repairs.

During this period Theodore is in receipt of annuity payments arising out of a settlement due to his accident. The deceased acts as his guardian but as her health deteriorated she becomes less able to manage her own affairs and those of her disabled son.

Early 2007 - Effie and Joanne, along with other family members, become concerned about the influence being exercised by Peter and his family over the deceased and the effect this is having on her finances. Effie approaches the Office of the Public Guardian and Trustee (“the PGT”) regarding the general financial situation of the deceased and Theodore.

April 2007 – as a result of a series of meetings between the PGT’s office and various family members, the PGT takes over Statutory Guardianship of the affairs of both Theodore and Eugenia. Before the PGT becomes the Statutory Guardian, a capacity assessment report is prepared by assessor Elizabeth Milojevic, who holds that the deceased is incapable of managing her finances.

April 16, 2007 – Effie and Sandra are required to leave Eugenia’s home by the York Regional Police based on what the Applicant believes to be complaints arising from Peter Columbos. Joanne has deposed that Peter told her that the deceased did not want family in the home. Joanne calls the deceased every day and finally, after Effie and Sandra had been excluded for nine days, she calls Peter to ask if she could go to the house to take care of Eugenia and Teddy who were alone in the house. She found Theodore moaning in bed, severally neglected, with a red rash around his groin area from urine.

April 25, 2007 – the deceased is admitted to hospital due to the stress of being alone in her home and attempting to care for Theodore. With the intervention of the PGT, Effie returns to the property to care for Theodore.

July 18, 2007 – Dr. Brian Hoffman completes an assessment of the deceased’s testamentary capacity. He finds no deficits in the deceased’s cognitive or emotional state during the three assessment periods completed between May 28 and June 27, 2007. His opinion is that the deceased is capable of making independent decisions, and finds no evidence of undue influence. He also opines that it was likely that the deceased had been suffering from a temporary physical illness, such as pneumonia or a temporary worsening of her congestive heart failure, whcih was adversely affecting her cognitions when assessed by Ms. Milojevic.

July 2007 – the Objector produces a Power of Attorney apparently signed by the deceased on December 23, 2006 appointing the Objector as her Attorney for Property. The PGT turned over guardianship to the Objector on the strength of Dr. Hoffman’s assessment.

August 2007 – the Applicant, Anna, Effie and Joanne commence an application to have the Applicant named as Guardian for the deceased because they were concerned that the Objector was not an appropriate person to control her finances (the “prior application”).

November 25, 2007 – the deceased is cross-examined by the applicant’s previous lawyer in the prior application. During that cross-examination she expresses her belief that “the three girls” and the Applicant wanted to have ownership and control of her property.

April 2, 2008 – Dr. Hoffman completes another assessment of the deceased’s testamentary capacity, and finds her capable of completing a will.

April 17, 2008 – the deceased executes a will.

August 26, 2008 – the deceased gives a Power of Attorney for Property to the Applicant. She signs a Power of Attorney for Personal Care naming Joanne and Effie as her Attorneys for Personal Care.

September 3, 2008 – the deceased signs a Revocation of Prior Wills in the presence of Mary Sultana and Jennifer Faulks.

September 4, 2008 – the deceased is admitted to hospital suffering from dehydration and/or congestive heart failure and remains there for approximately two-and-a-half weeks.

November 19, 2008 – a capacity assessment is conducted by Kathy Wheeler Sullivan, which confirms the deceased’s ability to make and revoke a Power of Attorney and to instruct counsel as of that date.

December 22, 2010 – the deceased executes a new will.

November 8, 2011 – a settlement is reached in the prior application by which the Power of Attorney for Property and Power of Attorney for Personal Care signed on August 26, 2008 are affirmed as valid. Each of the Objector and his brother received a sum of approximately $90,000 out of a joint account that was at that time in their name, together with the deceased.

August 30, 2011 – Peter dies.

July 27, 2012 – the application was commenced for vacant possession of the Property.

May 17, 2013 – Eugenia dies.

November 20, 2013 – Theodore dies.

The Wills

[17] The 2008 will purports to give both the Property and the deceased’s home to the Objector and his brother, the former being subject to a life interest in favour of Peter Columbos. It also provides them with all of the funds in the joint bank account in the names of the deceased, the Objector and his brother. The will named the Objector as the Estate Trustee, and alternatively the deceased’s then-lawyer, Justin Jakubiak. It also bequeaths the deceased’s Jaguar automobile to the Objector. The residue, which would include a 100 acre farm in Blackstock, Ontario, was to be divided equally between the Applicant, Penelope, Anna, Effie, Sandra, Peter and Joanne. No provision was made for Theodore or Elizabeth.

[18] The 2010 will appoints the Applicant as the sole executor, and Effie and Joanne as alternative executors. The deceased’s home was to be held in trust for Theodore’s use until his death or such time that he is no longer able to occupy the residence. The Property, if still occupied by Peter at the time of her death and if he did not predecease her, was to be held as an asset of the estate for the balance of Peter’s lifetime provided that he pay all costs associated with upkeep and maintenance of the Property. Upon his death, the Property was to be sold and administered as part of the residue, although provision was also made to permit Peter to purchase the Property during his lifetime. It established a trust fund in the amount of $50,000 for Elizabeth Columbos. The residue of the estate would eventually be divided among the deceased’s non-disabled surviving children.

Analysis

Motion for Summary Judgment

[19] The issues to be decided on the motion for summary judgment are:

1. Is there a genuine issue requiring a trial regarding the validity of the September, 2008 revocation?;

2. Is there a genuine issue requiring a trial regarding the validity of the December, 2010 will?.

The 2008 Revocation

[20] Capacity assessments completed on April 2, 2008 and November 19, 2008 both confirm the deceased’s capacity to understand and appreciate her property and its value, as well as the nature and effect of the legal instrument which she had executed or may execute. Dr. Hoffman found, at the earlier of the two dates, that the deceased was capable of completing a will. By the same analysis, she would have been capable of revoking a will at April 2, 2008. Ms. Wheeler Sullivan, at the later date, found that she was capable of both instructing counsel and capable of granting continuing powers of attorney for property and personal care. These assessments “bookend” the revocation signed by her.

[21] In addition, evidence was provided by Mary Sultana, one of the witnesses to the revocation document, that:

1. She had known the deceased for almost 40 years;

2. That she knew the members of the Columbos family;

3. That she spoke with the deceased by telephone once every three months;

4. That when she met with the deceased to sign the revocation document, the deceased was able to discuss many things with her, and that she was satisfied that the deceased knew what she was doing;

5. That the deceased told her directly that she was upset by things that had happened between herself and Peter and that she believed she had signed documents to give everything to Peter Columbos and his family and she did not want that position to continue; and

6. In particular, the deceased told her that she wanted to be sure that her wishes would be carried out to ensure that her son, Theodore, would continue to be looked after at home, and she believed that the earlier will that she had signed did not protect Theodore and his sisters, who looked after Theodore at home.

[22] The evidence given by Mary Sultana indicates to the court that, at least by September 2008, something had occurred to cause the deceased to have concerns about Peter and her prior testamentary dispositions. This must be considered together with Joanne’s evidence, which is that in the 2007/2008 period her mother repeatedly told her that she had executed documents which created scenarios that were very concerning to her, particularly as they related to the wellbeing of Teddy. She did not show the documents to the family. As the evidence shows, she had very likely been referring to the April 2008 will, which made no provision for her disabled son, and therefore about which she had every reason to be concerned. Accordingly, by 2008 the landscape seems to have changed for the deceased from that which was present at the time of her 2007 examination, when the transcript indicates that she had been suspicious of the intentions of the Applicant and her daughters. That appears to have changed, as by August 26, 2008 those children were the recipients of her power of attorney for property and personal care. The Objector affirmed the validity of those instruments by virtue of the settlement reached in 2010: he is now estopped from re-litigating whether there were suspicious circumstances surrounding their execution. He has, by virtue of that settlement, affirmed their validity. They were signed only eight days prior to the revocation.

[23] The deceased was admitted to the hospital the day after she signed the revocation and remained there for two weeks. No medical records are in evidence; the evidence is that the deceased was suffering from either, or both, congestive heart disease or dehydration. According to the evidence of Joanne, which was not rebutted by the Objector, during that time her former lawyer, who was also acting for the Objector, attempted to see her in hospital and was rebuffed by her. Joanne’s evidence is that, prior to her hospitalization, her mother told her that she did not believe that Mr. Jakubiak was acting her best interests and she did not want him to continue to represent her.

[24] With respect to this period, the Objector’s evidence is that since the August 28, 2008 power of attorney for finances had been executed, the deceased had been living in a stressed atmosphere created by the Applicant and the deceased’s daughters, and she did not leave her residence. He denies that his grandmother knew Mary Sultana, as she never spoke of her.

[25] In determining the validity of a testamentary document, whether a will or revocation of a will, there is presumption of validity established where the propounder of the document establishes proper execution of the document and that the testator knew and approved of the contents. The onus of establishing these criteria lies on the propounder of the document: Vout v. Hay, 1995 CanLII 105 (SCC), [1995] S.C.J. No. 58 at para. 26.

[26] If suspicious circumstances are established by a person challenging the validity of the will, it then falls to the propounder of the will or testamentary document to establish the testamentary capacity of the testator. In order to establish suspicious circumstances, the person challenging the validity of the document must adduce or point to evidence which, if accepted, would tend to negative knowledge and approval or testamentary capacity: Vout v. Hay, supra, at para. 27; Henry v. Henry, [2009] O.J. No. 1185 at paras. 37-41.

[27] The powers of the Court that maybe invoked in deciding where there is genuine issue for trial are set out Rule 20.04(2.1) as follows:

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] After carefully considering this matter, I find that the evidence presented permits the Court to decide the necessary issues without resort to the trial process. I am satisfied on the evidence filed that the deceased did in fact have knowledge and approval at the time that she signed the revocation, as well as testamentary capacity. There are no additional facts that could be gained through the trial process that would alter this finding. Given that the estate has been without an administrator for almost a year, it is also just that these issues be decided in the most expeditious way, and resort to the Court’s powers in Rule 20.0 (2.1) allows for such a resolution.

[29] The first fact is that on August 26, 2008, the deceased had knowledge and testamentary capacity, as consented to by the Objector. The second fact is that the revocation was properly executed and witnessed, and Mary Sultana gave evidence of the deceased's lucidity on that date. With respect to the assertion by the Objector that Mary Sultana was not a person that his grandmother ever mentioned, and therefore he denies her familiarity with the deceased, this is conjecture. Where a party contests the affidavit evidence relied on by the opposing party, Rule 39.02 of the Rules of Civil Procedure provides an important tool, being cross examination of the deponent of that affidavit. The Objector could have cross-examined Mary Sultana on her affidavit so as to have further evidence in support of his contention, but did not. In weighing her evidence, the Court notes the following: 1) she has no interest in the outcome of the proceeding; and 2) although friends with Effie, the Court has no reason to believe that she would perjure herself to help her friend or Effie’s family members. Third, there is no evidence that any of the family members knew of the contents of the 2008 will or even the definite existence of a will. As the Objector himself testified, he had it as a result of directions given by him to the deceased during her lifetime that he was to obtain it from the law firm of Fogler, Rubinoff LLP following her death. This makes any possible interference with the deceased's stated wishes less likely. Fourth, Mary Sultana indicated that the deceased had explained to her that she was concerned about the testamentary arrangements that she had previously made. Fifth, there is no evidence that the deceased was suffering from the effects of the ailments that put her in the hospital the next day, at the time that she signed the revocation. Even if those physical difficulties would have interfered with her capacity on September 4, 2008, of which there is no evidence, a person can be capable at one time but incapable at another time. This fact was stated by Dr. Hoffman at page 9 of his report of July 18, 2007. It is only the deceased's capacity as of the time of signing the revocation with which the Court is concerned.

[30] Ultimately, the Objector raises only a history of family dynamics that clearly had the deceased concerned about and/or aligned with one faction or another at various times. He relies on the negative comments made by the deceased at her cross-examination in 2007, and the comments made to Dr. Hoffman about why she had arranged her affairs as she had. Yet he chooses to ignore the positive comments made by the deceased to Ms. Wheeler Sullivan in November, 2008, when the deceased stated that she wanted her son Michael to assist her in getting her money back, by managing her money and dealing with the legal system, and that he had the knowledge to manage her property.

[31] These family dynamics undoubtedly had an influence on the deceased's testamentary dispositions. Sometimes those influences must have been quite pervasive - of all of the facts in this case, the one that does not make sense is that the deceased would have made a will in 2008 which completely ignored the needs of Theodore, toward whose care she had devoted her life for over two decades. This is all the more puzzling when one considers her discussions with Dr. Hoffman surrounding the monthly payment received by her under Theodore's structured settlement, and how it did not cover all of her costs such as the expense of paid caregivers, and how she had to be careful with her money to ensure that all of Theodore's needs were met. However, having one's testamentary wishes affected by family inter-relationships is a very different thing than having them so affected by undue influence that they do not reflect the true intentions and unfettered free will of the testator. There is no evidence in this case that would meet that level of proof. That level of proof has been described in The Canadian Law of Wills (3^rd ed.) at page 42 as:

The burden of proof of undue influences is on the attackers of the will to prove that the mind of the testator was overborne by pressure exerted by another person. It is not enough to show mere persuasion; the influence exerted on the testator must amount to coercion to be undue influence. Coercion has been defined to mean that the testator has been put in such a condition of mind that if he could speak his wishes to the last he would say, "this is not my wish but I must do it."

The 2010 Will

[32] With respect to the 2010 well, the Objector can only point to the fact that there was no capacity assessment done for the time period in question. Again, as a validly executed will, the presumption of validity exists. The will was drafted and witnessed by Ms. Rintoul, an experienced estates lawyer, and deals thoroughly with all of the deceased's property. The Objector raises no suspicious circumstances other than that this later will differs so dramatically from the 2008 will, and is contrary to what he believes to have been the understanding between his parents and his grandmother with respect to the Property. The Objector provides no evidence of his grandmother's health or personal circumstances in 2010 that would raise suspicious circumstances. Again, that the testator would change her will as a result of family dynamics is a commonplace occurrence seen in estate litigation matters. The fact of the change in a will does not, in and of itself, raise suspicious circumstances. Particularly given the backdrop of the evidence provided by Mary Sultana, and the statements made by the deceased in November, 2008 about wanting the Applicant's help with her financial matters, the Court has evidence of some basis for a change. In addition, the evidence that the deceased was concerned that she had earlier made no provision for Theodore, and that this was remedied by her later will, lend support to the contention that this last will is a reflection of her true wishes.

The Application

[33] Section 4 of the Statute of Frauds, R.S.O. 1990 c. S.19 provides:

4. No action shall be brought to charge any executor or administrator upon any special promise to answer damages out of the executor's or administrator's own estate, or to charge any person upon any special promise to answer for the debt, default or miscarriage of any other person, or to charge any person upon any contract or sale of lands, tenements or hereditaments, or any interest in or concerning them, unless the agreement upon which the action is brought, or some memorandum or note thereof is in writing and signed by the party to be charged therewith or some person thereunto lawfully authorized by the party. R.S.O. 1990, c. S.19, s. 4; 1994, c. 27, s. 55.

[34] That section indicates that writing is required for certain contracts, and in particular, for an interest in land. The provision prohibits an action against an estate for any interest in land, unless there is some memorandum or note regarding the agreement concerning the land. There was no agreement in writing between the deceased and Peter Columbos or his family that provides an interest in land. The deed is clear that the legal ownership of the Property belongs to the deceased's estate.

[35] The respondent relies on Cowderoy v. Sorkos Estate, 2012 ONSC 1921 (S.C.J.) to support his argument that an interest in the Property should be granted to him and his family. That case can be distinguished from the one before this Court on the basis that there is no evidence before me to corroborate any agreement alleged by the respondent. While the court in Cowderoy was able to be satisfied that there was such corroboration, that is not the case here. Section 13 of the Evidence Act, R.S.O. 1990, c. E.23 states:

13 In an action by or against the heirs, next of kin, executors, administrators or assigns of a deceased person, an opposite or interested party shall not obtain a verdict, judgment or decision on his or her own evidence in respect of any matter occurring before the death of the deceased person, unless such evidence is corroborated by some other material evidence.

[36] The only available evidence from another person with respect to the deceased's intentions regarding the Property comes from her interview with Dr. Hoffman in 2008. This, however, is evidence of the testator's intentions, rather than being evidence that corroborates an agreement. Evidence of the testator's intentions from third parties is inadmissible: Robinson Estate v. Robinson (2011), 2011 ONCA 493, O.J. No. 3084 at para. 27; Kaptyn Estate (2010), 2010 ONSC 4293, 102 O.R. (3d) 1 (S.C.) at para. 36.

[37] While I have sympathy for the Objector and his family in having to leave their lifelong home, and particularly as it undoubtedly holds many memories for them of their husband and father, the Court cannot find on the evidence that the Property was owned by Peter Columbos. One has only to look to the devise of the Property in the 2008 will. Had Peter Columbos owned the Property, there would have been no need to give him a life interest by such gift. A gift is antithetical to an agreement. A gift is defined in Black’s Law Dictionary, 9^th ed. (St. Paul, Minnesota: Thomson Reuters, 2009) at p. 696 as a voluntary transfer of property to another without compensation: see also McNamee v. McNamee, 2011 ONCA 533, 106 O.R. (3d) 401, at paras. 23-25; Canada v. Zandstra, 1974 CanLII 2533 (FC), [1974] 2 F.C. 254 (T.D.). As such, the transfer of such property cannot be made pursuant to a contractual obligation but must be made without anticipation or expectation of material benefit: see Woolner v. Canada (1999), 249 N.R. 129 (Fed. C.A.).

[38] Well the objector argues that it makes no sense for his parents to have invested money into the Property if there was no expectation of ownership, it does in fact make sense given that the deceased provided the housing to her son and his family, covering the associated realty taxes and insurance herself, and possibly even the utilities.

[39] The Objector and his family assert that Peter Columbos paid for improvements to the Property. While they have no formal trust claim before this Court, the Court is providing them with the indulgence of allowing them to prove: 1) the amount of money invested by Peter Colombos for improvements; and 2) the extent to which those improvements added to the value of the Property, if any, for the purpose of a determination by the Court of what Peter Colombos’ estate should be entitled to from the deceased's estate by way of compensation.

[40] An order shall issue in Court File No. 2013-26727 in the following terms:

1. This Court orders that the Notice of Objection filed by the Respondent is hereby vacated.

2. This Court orders and declares that the Last Will and Testament of Eugenia Columbos dated December 22, 2010 is the valid will of Eugenia Columbos.

3. This Court orders and declares that all prior wills of Eugenia Columbos were revoked by the revocation dated September 3, 2008.

4. This Court orders that the Respondent’s cross-motion is dismissed.

[41] An order shall issue in Court File No. CV-12-110494-00 in the following terms:

1. This Court orders that the Estate of Eugenia Columbos is entitled to vacant possession of the property located at 15625 Highway 48, Stouffville, Ontario, being described as Part Lot 23, Concession 8, in the Township of Whitchurch, being PIN 03686-0021 (the “Property”).

2. This Court orders that the Respondents shall vacate the Property within sixty (60) days of this Order.

3. This Court orders that a Judgment for possession of the Property shall issue in favor of the Applicant.

4. This Court orders that the Applicant is at liberty to issue a Writ of Possession in relation to the Property directed to the Sheriff of the Regional Municipality of York, requiring the Sheriff put the Applicant into possession of the Property.

5. This Court authorizes the Applicant to seek the assistance of the York Regional Police, the office of the Sheriff for York and the services of any qualified and licensed locksmith to obtain and secure vacant possession of the Property.

6. This Court orders that upon the sale of the Property, the net proceeds of disposition after the usual disbursements and payment of income tax payable by the Estate in respect of the Property, shall be held in trust by the firm of Blaney McMurtry LLP until after a reference is conducted and a further order obtained from this Court directing the distribution of those funds.

7. This Court orders that, unless otherwise agreed to by the parties, a reference is directed to a judge for a determination of:

i. Taking account of the cost of improvements paid by Peter Columbos for the Property;

ii. A determination of the amount of money, if any, to be paid to the Estate of Peter Columbos by the Estate of Eugenia Columbos from the sale proceeds of the Property as compensation for unjust enrichment.

8. This Court orders that the Respondents shall produce all documents on which they seek to rely at a reference within thirty (30) days of this order, and thereafter either party may arrange through the Newmarket trial co-ordinator’s office to have this application placed on the trial scheduling court list for the purpose of fixing a date for the reference.

[42] If the parties are unable to agree upon costs of the application and motions they may make brief submissions in writing not exceeding three double-spaced pages, together with any Cost Outline, Bill of Costs or offers on which they rely. The Applicant’s submissions are due March 21, 2014 and the Respondent’s submissions are due by March 31, 2014, with no reply, to be filed with my judicial assistant in Barrie.

HEALEY J.

Released: February 28, 2014