ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 05-012/09

DATE: 20140711

BETWEEN:

CHRISTOS ANTONIOU DONIS
Applicant

– and –

DIMITRA GEORGOPOULOS and ELENI ANTONIOU DONIS
Respondents

Constantine Alexiou, for the Applicant

Maurice W. Pilon, for the Respondent, Dimitra Georgopoulos

Eleni Antoniou Donis, In Person

HEARD: October 21, 22, 23 & 24, 2013

FIRESTONE J.

AMENDED REASONS FOR JUDGMENT

[1] This matter was commenced by way of Application. Pursuant to the order for directions dated April 11, 2012, it was to proceed to trial for determination of the following issues:

(a) The validity of a Memorandum of Agreement between the deceased Sofia Donis
and the Respondent Dimitra Georgopoulos dated September 18, 2007, including
allegations of lack of capacity and the presence of undue influence;

(b) The validity of a handwritten note dated February 1, 2008, allegedly executed by
the deceased Sofia Donis, including allegations of lack of capacity the presence of
undue influence;

(c) The management and control of assets of the deceased Sofia Donis by the Respondent Dimitra Georgopoulos; and

(d) all other issues relating to the Estate of the deceased Sofia Donis as may be agreed upon by counsel or determined by this Court.

[2] The central issue in this trial is the validity of both a Memorandum of Agreement dated September 19, 2007 (“MOA”) and a subsequent handwritten note dated February 1, 2008 (“Note”). These were both executed by Sofia Donis prior to her death.

Factual Background

[3] The applicant Christos Antoniou Donis (“Christos”) along with the Respondents Dimitra Georgopoulos (“Dimitra”) and Eleni Antoniou Donis (“Eleni”) are the children of Sofia Donis (“Sofia”) who passed away on February 14, 2008.

[4] On March 21, 1996 Sofia executed her last will and testament. Pursuant to its terms Sofia’s estate was to be divided equally between the three surviving children, Christos, Dimitra and Eleni.

[5] Following the death of her husband Louis Donis (“Louis”) on January 7, 2005, Sofia increasingly relied on her children for support. Initially, the support came from Christos and Dimitra because Eleni no longer resided in Toronto. Christos and Dimitra took turns sleeping over at their mother’s house to care for her basic needs. The evidence discloses that Dimitra eventually assumed the role of primary caregiver for her mother because she was no longer able to look after herself and began to look after her almost exclusively. This allowed Sofia to remain in her family home which was, according to her children, what she wanted to do. As Christos testified “she was dead set against going into a nursing home”.

[6] On September 18, 2007, both Dimitra and Sofia signed a memorandum of agreement (“MOA”) which had been prepared by Sofia’s solicitor, Mr. Shea (“Shea”). It states as follows:

I, Sofia Donis, herein agree to transfer all my right, title and interest
in the property municipally known as 41 Corinthian Blvd; to my daughter, Dimitra Georgopoulos.

I will do so at the time when she pays me the sum of $100,000.00 out of
the proceeds from the sale of her own property.

I, Dimitra Georgopoulos, herein agree to allow my mother, Sofia Donis, to continue to reside with me at 41 Corinthian Blvd; for the balance of her lifetime unless she is unable for health reasons to do so.

[7] Subsequently, on February 1, 2008, Sofia executed a handwritten note (“Note”) that had been prepared by Dimitra. (The parties are in agreement that Sofia’s comprehension of the English language was very limited). The note directed Sofia’s lawyer, Shea, to transfer her property at 41 Corinthian Blvd to her daughter Dimitra Georgopoulos, but made no mention of the $100.000.00 payment that formed part of the MOA. It stated:

To Durno +Shea.
Attention Mike Shea

Please transfer my property at 41 Corinthian Blvd.

To my douter [sic] Dimitra T. Georgopoulos.

She has cared for me & help me in everything and lease [sic]

my douter has not Dimitra is not pressuring me to do this.

Feb 1, 2008

Sofia Donis

[8] Sofia Donis died suddenly and unexpectedly on February 14, 2008.

[9] On February 28, 2008, Dimitra completed the sale of her house at 98 Corinthian Blvd and her solicitor held back $100,000.00 of the proceeds in accordance with the MOA. Dimitra has lived in the house at 41 Corinthian Blvd since that time, although legal title has not been conveyed to her.

The Position of the Parties

[10] The applicant, Christos, takes the position that, viewed as testamentary instruments, both the MOA and the note are void because they were signed under suspicious circumstances and/or are the result of undue influence. He states that Sofia did not have the mental capacity to properly execute the documents because of the pain medication she was taking and did not understand English sufficiently to know the contents of the documents. As a result, it is his position that Sofia’s stated desire and intentions are not clear.

[11] Viewed as a basic contract, the applicant’s position is that the MOA is void for uncertainty and/or undue influence. He also asserts that the MOA does not bind the estate of Sofia and that the agreement died with her. As to the handwritten note, Christos submits that it should be viewed as an inter vivos gift that failed and cannot now take effect. The respondent Eleni supports Christo’s position.

[12] The respondent, Dimitra, argues that the MOA is properly understood as a basic contract and that it is valid and enforceable. She submits that it is certain in its terms and subject matter. She states that it was Sofia’s clear and stated desire and intention that she continue to live in her home at 41 Corinthian Blvd as long as she was able. This was made possible because of the care being provided by Dimitra who was the only sibling who was in a position and willing to provide it on an ongoing and continuous basis. As a result, Sofia had decided to reward her with the transfer of her home upon the payment of $100,000.00. Dimitra has since sold her home at 98 Corinthian Blvd. She argues that nothing turns on the handwritten note dated February 1, 2008 and that the inquiry should be focused on the MOA.

Analysis

Choice of Law: Contractual versus Testamentary Instruments.

[13] At the outset, it is important that I articulate the legal framework which applies to the facts of this case since the analysis which I must undertake on the evidence before me, and the onus of proof in different instances, will change depending on which legal principles apply. If the MOA and note are testamentary in nature, estate law principles are applicable. If, on the other hand, these documents are an agreement for purchase and sale and/or an inter vivos gift of property, the law of contract and the common-law requirements for gifting apply.

[14] One of the fundamental precepts in the law of estates is that “nothing can receive probate which was not intended to be a testamentary act by the testator.” Whyte et al. v. Pollok (1182), 7 App. Cas. 400, per Lord Selborne L.C. at 405. In other words, in order to be treated as a testamentary instrument, it must evince an animus testandi, an intention that the directions it contains for the disposal of property are to take effect upon the death of the testator: Re Gray; Bennett et al v. Toronto General Trusts Corp. et al. 1958 49 (SCC), [1958] S.C.R. 392 at 396; Morin v Canada (Minister of Indian Affairs and Northern Development) 2001 FCT 1430, 213 F.T.R. 291 at para 46. If it is not clear from the document itself that it was intended as a testamentary instrument I may consider extraneous indirect evidence about the circumstances surrounding the execution of the document. Rudaczyk Estate v. Ukranian Evangelical Baptist Assn. of Eastern Canada (1989), 1989 4129 (ON SC), 34 E.T.R. 231 (Ont. H.C.J.)

[15] Both the MOA and note do not, on their face, demonstrate an intention that the disposition of the house at issue should occur only after Sofia’s death. As well, the MOA was signed by both Sofia and Dimitra. If it was to be only testamentary in nature there would have been no reason for Dimitra to sign it. On a plain reading of these documents they appear to call for the immediate transfer of the property based on their stated terms. In that respect, the MOA appears to be a basic contract for the purchase and sale of Sofia’s home in consideration of $100,000.00. The note at first instance appears to gift the property, inter vivos, to Dimitra for no consideration at all.

[16] For the reasons that follow I find that the MOA is a valid and enforceable contract. I further find, based on the evidence, that the handwritten note was not intended to gift Sofia’s house to Dimitra, but was rather a reaffirmation of Sofia’s overarching intention – that Dimitra should have the house – as expressed in the MOA.

[17] If I am wrong, and the documents are testamentary in nature, I would still find that the MOA is valid and should not be set aside on the basis of a lack of capacity or undue influence. Therefore, for the sake of completeness, I will also provide reasons for my decision on this basis.

(continued verbatim through paragraphs [18]–[99] exactly as in the source)

Firestone J.

Released: July 11, 2014

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

CHRISTOS ANTONIOU DONIS
Applicant

– and –

DIMITRA GEORGOPOULOS and ELENI ANTONIOU DONIS
Respondents

REASONS FOR JUDGMENT

Firestone J.

Released: July 11, 2014