A. Grillo, Estate Trustee for the Estate of D. Grillov. P. Grillo et al.\*

[Indexed as: Grillo Estate v. Grillo]

Ontario Reports

Ontario Superior Court of Justice,

Newbould J.

March 2, 2015

125 O.R. (3d) 707 | 2015 ONSC 1352

Case Summary

Conflict of laws — Jurisdiction — Ontario-resident deceased dying in Italy — Applicant bringing application in Ontario for order invalidating alleged holographic will of deceased made in Italy — Respondent being resident of Italy — Rules 17.02(b) and 17.02(c) of Rules of Civil Procedure and reasonable expectation that respondent would be called to answer legal proceedings in Ontario constituting presumptive connecting factors which gave Ontario jurisdiction to deal with validity of will — Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 17.02(b), 17.02(c).

The applicant applied for an order invalidating an alleged holographic will of her father, who was a resident of Ontario but who died in Italy, and declaring that an earlier will was his last will and testament. A handwriting expert had concluded that the alleged will was not written by the deceased, and the respondent, who was one of the beneficiaries under the challenged will, was facing charges in Italy of theft and writing and registering a forged will.

Held, the application should be allowed.

Rule 17.02(b) of the Rules of Civil Procedure permits service ex juris in respect of the administration of an estate of a deceased person in respect of personal property where the deceased person at the time of his death was a resident of Ontario. Rule 17.02(c) permits service ex juris for the setting aside of a will in respect of personal property in Ontario. The respondent could expect that the validity of the will, which involved the disposition of the Ontario bank accounts of an Ontario resident, would take place in Ontario. That expectation and rules 17.02(b) and 17.02(c) were presumptive connecting factors giving Ontario jurisdiction to deal with the validity of the alleged will.

It was clear from the expert evidence that the alleged will was not written or made by the deceased.

Cases referred to

Club Resorts Ltd. v. Van Breda, [2012] 1 S.C.R. 572, [2012] S.C.J. No. 17, 2012 SCC 17, 291 O.A.C. 201, 2012EXP-1452, J.E. 2012-788, EYB 2012-205198, 429 N.R. 217, 343 D.L.R. (4th) 577, 91 C.C.L.T. (3d) 1, 10 R.F.L. (7th) 1, 17 C.P.C. (7th) 223, 212 A.C.W.S. (3d) 712

Statutes referred to

Succession Law Reform Act, R.S.O. 1990, c. S.26, s. 36(2)

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 17.02, (b), (c) [page708]

APPLICATION for an order invalidating a will.

Romeo D'Ambrosio, for applicant.

[1] NEWBOULD J.: — The applicant applies for an order invalidating an alleged holographic will of her father, the deceased Domenico Grillo, dated May 5, 2014 and made in Italy and declaring an earlier will executed on December 9, 1994 made in Mississauga to be his last will and testament. Under the 1994 will, the applicant and her brother and sister, who are the first two named respondents, are the beneficiaries. Under the alleged 2014 will, the applicant, her brother and sister and the respondent Anna Antonina Grillo are equal beneficiaries.

[2] Mr. Grillo was born in Italy but was domiciled in Ontario. He often visited Italy for vacations. In March 2014, Mr. Grillo decided to go to Italy. At the time, he was suffering from chronic obstructive pulmonary disease and had been diagnosed with lung cancer. His children thought he was too ill to go but he insisted on going. As was his usual habit when he went to Italy, he transferred money from his CIBC account in Mississauga to an account he had in Italy, from which he accessed money as needed in Italy.

[3] On July 1, 2014, the applicant's sister Rosanna had a call from her cousin, the respondent Anna Antonina Grillo, saying that Mr. Grillo was very ill. Other calls were received from Anna shortly after that seemed very suspicious. Mr. Grillo died in Italy on July 4, 2014.

[4] The applicant and her siblings, a brother and sister who are the first two named respondents, went to Italy. Before doing so, because of the suspicions aroused by the telephone calls from Anna, the applicant's sister Rosanna checked with the CIBC in Mississauga and was told that there had been a lot of withdrawals. The CIBC agreed to freeze the accounts until the applicant and her siblings went to Italy to check on their father.

[5] Unfortunately, their father died before they got there. They owned the home in Italy that their father had stayed in. When they arrived, they found things missing from the home, including their father's wallet, his passport, ID card, licence, bank books, bank cards and credit cards and his jewellery. They later learned that between March and July 2014, over, EUR 13,000 had been taken from their father's CIBC account in Mississauga by use of an ATM card in Italy. Their father's ATM card was missing. Money was also taken from the account he had in Italy by use of his ATM card for that account and forged cheques. [page709]

[6] A few days after the funeral, the three children were given a document that was said to be a will made by their father dated May 5, 2014. It was handwritten and contained no evidence that there had been any witnesses to its writing. It contained a signature in the name of Domenico Grillo. The applicant and her siblings agreed that the handwriting was not their father's, was not his words, was not his signature and indicated a wrong date of birth. An Italian handwriting expert later concluded that the alleged will was not written by their father. His report of July 24, 2014 has been filed on this application.

[7] Criminal charges have been laid in Italy for various counts of theft and writing and registering a forged will. Named on some of the charges are Anna, her mother Maria Grillo, the sister of Mr. Grillo, and her son Nicola.

[8] On July 21, 2014, three days before the expert handwriting analysis was received, the CIBC received a letter from an Italian lawyer in Rome stating that he acted for Anna Antonina Grillo and he referred to specific bank accounts that Mr. Grillo had at the CIBC. He said that Mr. Grillo had left a valid will in which he disposed of all of his assets in equal shares in favour of his three sons (sic) and Anna Antonina Grillo. He asked that the CIBC freeze the bank accounts. As a result of this letter, the CIBC has taken the position that until there is a court order confirming the validity of the 1994 will of Mr. Grillo and evidence that the beneficiaries of the 2014 will were served with the court application, they cannot act under the 1994 will.

[9] Anna Antonina Grillo was served in Italy with the court application. On the first return of the application, she was represented by a solicitor or paralegal. It was adjourned on consent to permit the applicant's solicitor to file argument as to the court's jurisdiction. On the return of the application before me, no one appeared on her behalf.

[10] Club Resorts Ltd. v. Van Breda, [2012] 1 S.C.R. 572, [2012] S.C.J. No. 17, 2012 SCC 17 laid down the tests to be applied when a case has an international aspect. There must be a real and substantial connection to the jurisdiction in question, in this case Ontario. There are presumptive connecting factors, the starting point for which is rule 17.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. In Van Breda, LeBel J. stated [at para. 83]:

At this stage, I will briefly discuss certain connections that the courts could use as presumptive connecting factors. Like the Court of Appeal, I will begin with a number of factors drawn from rule 17.02 of the Ontario Rules of Civil Procedure. These factors relate to situations in which service ex juris is allowed, and they were not adopted as conflicts rules. Nevertheless, they represent an expression of wisdom and experience drawn from the life of the [page710] law. Several of them are based on objective facts that may also indicate when courts can properly assume jurisdiction. They are generally consistent with the approach taken in the CJPTA and with the recommendations of the Law Commission of Ontario, although some of them are more detailed. They thus offer guidance for the development of this area of private international law.

[11] Rule 17.02(b) permits service ex juris in respect of the administration of an estate of a deceased person in respect of personal property where the deceased person at the time of death was a resident of Ontario. While Mr. Grillo was in Italy at the time of his death, he was a resident of Ontario. Rule 17.02(c) permits service ex juris for the setting aside of a will in respect of personal property in Ontario.

[12] In Van Breda, LeBel J. stated that all presumptive connecting factors generally point to a relationship between the subject matter of the litigation and the forum such that it would be reasonable to expect that the defendant would be called to answer legal proceedings in that forum. In my view, that is the situation with the respondent Anna Antonina Grillo. Her lawyer wrote to the CIBC asserting a valid 2014 will and asked the CIBC to freeze the deceased's bank accounts. She could expect that the validity of the will which involved disposition of those bank accounts would take place in Ontario, where Mr. Grillo was domiciled, where the CIBC accounts are and where the deceased's three children live. In my view, these facts and rule 17.02(b) and (c) together are presumptive connecting factors giving Ontario jurisdiction to deal with the validity of the alleged 2014 will made in Italy.

[13] The assets of Mr. Grillo consisted of bank accounts at the CIBC in Toronto and in Italy. By virtue of the Ontario Succession Law Reform Act, R.S.O. 1990, c. S.26, the law of the place of domicile of a deceased, in this case Ontario, governs the formalities and validity of both the 1994 will and the alleged 2014 will. Section 36(2) provides:

36(2) Subject to other provisions of this Part, the manner and formalities of making a will, and its essential validity and effect, so far as it relates to an interest in movables, are governed by the internal law of the place where the testator was domiciled at the time of his or her death.

[14] Mr. Grillo was domiciled in Ontario at the time of his death. It is clear from the evidence, both from the applicant's affidavit, and from the expert handwriting report, that the alleged 2014 will was not written or made by Mr. Grillo before he passed away. Therefore, it is not a valid will. There is no issue with respect to the 1994 will made by Mr. Grillo. It is a validly executed will. [page711]

Conclusion

[15] The alleged will of the deceased dated May 5, 2014 is declared to be invalid. The will of the deceased dated December 9, 1994 is declared to be valid and the last will and testament of the deceased.

[16] The applicant is entitled to her costs on a full indemnity basis of $8,150 to be forthwith paid by the respondent Anna Antonina Grillo to the applicant. The applicant is entitled to be paid her costs from the estate in the same amount.

Application allowed.

* Vous trouverez la traduction française à la p. 711, post.

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