CITATION: Walman v. Walman Estate, 2015 ONSC 0185
COURT FILE NO.: CV-11-5004-00
DATE: 20150109
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Bobby Walman and David Walman, Plaintiffs
AND:
Estelle Walman, Estate Trustee of the Estate of Murray Walman, Deceased and Estelle Walman, Personally, Defendants
BEFORE: D.L. Corbett J.
COUNSEL: Mark A. Klaiman, for the Plaintiffs
Howard Shankman, for the Defendants
HEARD: November 18, 19, 20 and 21, 2013
JUDGMENT
[1] Murray Walman was diagnosed with Parkinson’s Disease in 1999, and Lewy Body Dementia (“LBD”) in April 2003. He died in 2009, at the age of 88, following nearly six months in hospital in the final stages of his illnesses. He left behind his second wife, Estelle Walman, and three adult sons: Paul, David and Bobby, all progeny of his first marriage.[1]
[2] Murray[2] lost his first wife to pancreatic cancer in 1988. He married Estelle in December 1991. Estelle had been married before, and had four adult daughters from her first marriage.
[3] Murray made three wills that were in evidence before me, each of which superseded all prior wills:
a. the “first will” on November 17, 2003;
b. the “second will” on December 6, 2005;
c. the “third will” on December 4, 2007.[3]
[4] Murray also made dispositions of capital property in favour of Estelle during the final five years of his life, including capital asset transfers to (a) a joint bank account held with Estelle and (b) an annuity providing Estelle the right of survivorship.
[5] The net effect of the third will and the pre-death capital transfers is that Estelle would inherit all of Murray’s assets except for a very small amount, valued between $5,000 and $10,000, to be divided between Paul, David and Bobby.
Issues and Disposition
[6] Bobby and David seek orders invalidating the third will and setting aside the impugned capital transfers. They argue that Murray lacked the capacity to make the third will or to effect the capital transfers, and that in any event these transactions were all as result of Estelle’s undue influence. Estelle argues that Murray had capacity. These transactions reflect Murray’s concern that he and Estelle were running out of money because of the substantial costs of his attendant care, and because of his displeasure with his sons for not paying enough attention to him and his needs in his difficult final years.
[7] I conclude that Murray Walman lacked testamentary capacity, and that in any event the third will and impugned capital transfers were a result of undue influence by Estelle. I accept the expert opinion of Dr Silberfeld that Murray was suffering a substantial burden of illness inconsistent with the evidence of defence witnesses of Murray’s apparent capacity. I conclude that Estelle had a marked negative animus towards Bobby and David, felt that they should not benefit from their father’s will, and pursued this result on the basis of her opinion. She ignored advice from Murray’s solicitor, Jules Kronis, that Murray should obtain a capacity assessment before making a fresh will, and instead took Murray to a different lawyer.
[8] I find that Estelle reported Murray’s cognitive difficulties to treating physicians and described Murray’s condition to them in a manner consistent with Dr Silberfeld’s description that Murray was suffering a significant burden of illness. But in examinations for discovery in this case, she denied material mental deficits. Then at trial, she understated the deficits. Then, when faced with her inconsistent accounts, she took umbrage rather than explaining herself.
[9] The case would be clear-cut but for the evidence of Mr Clapperton. He is an experienced solicitor. However, I conclude that Mr Clapperton misjudged the situation. It should have been clear from Murray’s medical history that an assessment would be necessary to establish testamentary capacity by 2007. The strength of Mr Clapperton’s testimony is significantly undermined in this context: it is self-serving to the extent that it (a) justifies his decision to proceed without a capacity assessment, and (b) explains his failure to recommend an assessment.
[10] It is not clear whether Estelle advised Mr Clapperton of Murray’s medical history or of Mr Kronis’ earlier advice to obtain a capacity assessment. It may be that Mr Clapperton was misled by not being given this background information. Obviously a solicitor can advise only on the basis of the information provided to him. In any event, when set against the medical evidence concerning Murray’s condition, Dr Silberfeld’s opinion, and the rest of the evidence concerning Murray’s relationship with his sons, I do not hesitate to conclude that Murray was not competent when he made the 2007 will, and Mr Clapperton’s evidence of behaviour tending to show competence is simply incorrect. To borrow a phrase from Dr Silberfeld, I conclude that Mr Clapperton’s report of his meeting with Murray is inconsistent with the burden of illness under which Murray laboured. While I accept that it is “possible”, in an epistemological sense, that Murray acted as described by Mr Clapperton, and accordingly that it is also “possible” that Murray was competent, the burden of proof is on a balance of probabilities and not what is “possible”.
[11] Accordingly there shall be judgment for the plaintiffs.
Structure of these Reasons
[12] This case turns on the facts.
[13] In the first section of these reasons I set out the applicable legal principles. In the second section, the bulk of these reasons, I review the evidence and summarize my factual findings. In the final section I set out my final order.
[14] My review of the evidence is organized as follows:
- Murray’s Health
a. Medical Experts
i. Dr Michael Silberfeld
ii. Dr Kenneth Shulman
b. Other Medical Evidence
c. Lawyers
i. Jules Kronis
ii. Christopher Clapperton
d. Family Members
i. Bobby Walman (Murray’s son)
ii. David Walman (Murray’s son)
iii. Susan Silver (Bobby’s wife; Murray’s daughter-in-law)
iv. Glenn Walman (Murray’s nephew)
v. Estelle Walman (Murray’s wife)
e. Gordon Ross
Estelle’s Decision Not To Obtain a Capacity Assessment
Lack of Evidence that the Walmans were “Running Out of Money”
Weak Evidence that the Walman Sons “Neglected” Murray
Murray’s Odd Dispositions to His Sons in the Third Will
Murray’s Odd Treatment of Family Loans in the Third Will
Summary and Conclusions
A. Legal Principles[4]
[15] The threshold for testamentary capacity is a low one. It is not sufficient for the plaintiffs to show that Murray suffered from a cognitive impairment: a person who suffers from a cognitive impairment may have testamentary capacity so long as the will is made during a period of lucidity.[5]
[16] On the other hand, moments of lucidity do not equate with capacity.[6] For testamentary capacity, the court must be satisfied that the testator understood the nature of the act and its effects, the extent of the property of which he is disposing, and that the testator is able to comprehend and appreciate the claims to which he ought to give effect.[7]
[17] The time for determining testamentary capacity is the time at which instructions are given and when the will was signed by the testator.[8] Subsequent incapacity does not invalidate a transaction carried out previously.[9]
[18] Where a transaction is attacked on the basis of undue influence, the burden of proof lies on those seeking to set aside the transaction.[10] However,
Whenever there is a marked departure from a previously existing pattern in the disposition by a testator of his estate, one seeks to ascertain from the circumstances the reason for such a change. If the circumstances are suspicious then there is an onus on the party propounding the will to satisfy the conscience of the court that the document is the last will of the testator made at a time when he was free of undue influence and in possession of a “disposing mind and memory”.[11]
[19] Dispelling suspicious circumstances (for a proponent) and establishing undue influence (for an objector) are approached differently:
There is a distinction to be borne in mind between producing sufficient evidence to satisfy the Court that a suspicion raised by the circumstances surrounding the execution of a will have been dispelled and producing the evidence necessary to establish an allegation of undue influence. The former task lies upon the proponents of the will, the latter is a burden assumed by those attacking the will and can only be discharged by proof of the existence of an influence acting upon the mind of the testator of the kind described by Viscount Haldane in Craig v. Lamoureux, 1919 416 (UK JCPC), [1920] A.C. 349 at 357 where he says
Undue influence… must be an influence… [that has] caused the execution of a paper pretending to express a testator’s mind, but really which does not express his mind, but something else which he did not really mean.[12]
This analytical approach was settled definitively by the Supreme Court of Canada, in Vout v. Hay in 1995.[13]
[20] As stated by Chancellor Boyd one hundred years ago:
The testator must not only understand that he is by his will giving the whole of his property to one object of his regard, but he must also have capacity to comprehend the extent of his property and the nature of the claims of others whom by his will he is excluding from all participation in that property. The protection of the law is in no cases more needed than it is in those where the mind has been too much enfeebled to comprehend more objects than one, and most especially when that one object may be so forced upon the attention of the invalid as to shut out all others that might require consideration.[14]
B. Evidence and Factual Findings
1. Murray’s Health
[21] I heard evidence of two medical experts, one treating physician, two professionals (lawyers), members of the family, and Gordon Ross, a family friend who sold Mr Walman a joint annuity in 2006. I also reviewed the clinical medical records in detail.
[22] I consider the evidence of both medical experts to be independent and I accept it. As I have stated already, I consider the evidence of the two lawyers, Mr Kronis and Mr Clapperton, to be sincere. I prefer Mr Kronis’ approach to that of Mr Clapperton. In respect to the evidence of the family members, I treat their evidence as anecdotal when it concerns the question of Murray’s mental capacity. I reject the evidence of the neighbor, Gordon Ross, on the basis that it is partial and self-serving. And I reject the evidence of Estelle as partial, self-serving, and in some instances, as simply untrue.
a. Medical Experts
[23] The two medical experts really do not disagree significantly with each other’s expert opinions so much as they disagree on the credit to be given to the evidence of Mr Clapperton, the lawyer who drew the third will. Neither expert was present when Mr Clapperton met with Murray, and so of course neither knows with certainty what happened. Dr Silberfeld opined that Murray was probably not competent at the time of the third will, in December 2007. Dr Shulman opines that it is feasible that Murray was competent at the material time, and that if I accept Mr Clapperton’s evidence then it seems that Murray may have been competent.
[24] There is one important point of departure between the two expert opinions however, and one which does bear on the central question. Dr Silberfeld opined that Murray suffered from LBD. Dr Shulman predicates his opinion on the basis that Murray suffered from Parkinsonism. As is reflected in the records of the treating physicians and in Dr Silberfeld’s evidence, the difference between LBD and Parkinson’s Disease is significant. Mr Clapperton’s evidence is far more “feasible” if Murray had Parkinson’s, which can be characterized by swings in lucidity, than if Murray had LBD, which is not.
[25] Dr Silberfeld testified directly and firmly on this point and was unshaken in cross examination. Dr Shulman did not really address this issue in his evidence. He did not disagree with Dr Silberfeld’s evidence of the nature of LBD, and he did not testify that, in his opinion, based on the medical records, Murray had Parkinson’s and did not have LBD.
(i) Dr Michel Silberfeld
[26] Dr Silberfeld has been a registered psychiatrist since 1976, and has a curriculum vitae that establishes his focused expertise on various aspects of legal capacity, including testamentary capacity.[15] I am satisfied that Dr Silberfeld is a respected and senior expert in this area.
[27] Dr Silberfeld never met Murray. His opinion is based on Murray’s clinical notes and records, and events that are recorded in those notes. In sum, Dr Silberfeld testified that Murray had Parkinson’s Disease since about 1999, and was diagnosed with LBD or similar etioology in 2003. Dr Silberfeld testified that LBD is progressive and often a severe form of dementia, and unlike Parkinson’s is not generally characterized by swings in lucidity. Rather, it is a more constant affliction characterized by clouding of consciousness, psychosis, and often involves a rapid deterioration in function.
[28] According to the medical records, Murray was diagnosed in October 2003 as having reduced cognitive speed. An MRI showed small infarcts in the executive areas of the brain. Murray was reported as experiencing “recurrent visual hallucinations”. Murray was admitted to hospital with debilitating delirium, which Dr Silberfeld described as an “altered state of consciousness”, bouts of which are typical for LBD.
[29] By December 2006, Murray was diagnosed with advanced Parkinson’s Disease and dementia, and was having regular hallucinations in the afternoons. Tests in August 2007 showed a score of 19/30 on the MMSE scale and a substantially impaired clock-drawing capacity. Dr Silberfeld testified that the MMSE is not a very good screening test for dementia, but that the overall test results are evidence of considerable effects of dementia.
[30] The clinical notes record that Murray had bouts of serious disorientation, both as to time and space, including getting lost in his own bedroom and getting lost going to the bathroom in his own condominium.
[31] Dr Silberfeld cannot say, of course, how Murray behaved in his meeting with Mr Clapperton. However, he did say that, in his experience, the families of dementia patients frequently over-estimate the abilities of their loved ones. Where a patient is asked leading questions, they will often respond in an apparently effective way, because the patients themselves wish to show that they are capable.
[32] While it is for the court to decide what happened in the meeting between Mr Clapperton and Murray Dr Silberfeld believes it is improbable that Murray could have had the capacity reported by Mr Clapperton, simply on the basis of the overall burden of Murray’s illness, as reflected in his medical records.
[33] Dr Silberfeld was not shaken in this opinion on cross examination. He doubted that Murray had behaved as described by Mr Clapperton. In cross examination he was asked if he would not agree that it would have been difficult for Murray to have been able to give the instructions, but not impossible. Dr Silberfeld responded by saying that, in his opinion, it was “probably almost impossible” for Murray to have performed in the manner reported by Mr Clapperton: “[Mr Clapperton’s] notes show [Murray] functioning in a way inconsistent with his clinical history”. Under further cross-examination, Dr Silberfeld reiterated his opinion: “I find what [Mr] Clapperton wrote inconsistent with the burden of illness”.
[34] Dr Silberfeld asked if it was not true that dementia patients “have good days and bad days”. He responded by saying that this statement was true of Alzheimer patients, but was not characteristic of LBD patients. With LBD, he testified, “it is a steady unremitting march towards further dementia”.
(ii) Dr Kenneth Shulman
[35] Dr Shulman specializes in the field of psychogeriatrics, and has substantial experience in the area of competency assessments. I am satisfied that Dr Shulman is a senior and respected expert in this area. Like Dr Silberfeld, Dr Shulman did not see or assess Murray. Instead, his opinion is based on the written record and other investigations he conducted.
[36] Dr Shulman bases his opinion on Mr Clapperton’s notes and account of what took place during the meeting between Mr Clapperton and Mr Walman. If the court accepts Mr Clapperton’s evidence as to how Mr Walman was in his meeting with Mr Clapperton, and what took place during that meeting, then Mr Walman probably had capacity.
[37] Dr Shulman circumscribed his opinion cautiously. He had no opinion on whether I should accept Mr Clapperton’s evidence. In his opinion, it “seems feasible that Murray could have met the test for testamentary capacity depending on how the court assesses the lawyer’s evidence.”[16] In his summary he stated: “It is really for the court to determine if the evidence from the lawyers is sufficient to satisfy the test for testamentary capacity”.[17]
b. Other Medical Evidence
[38] Murray had attending physicians including Dr Marvin Gelkopf (general practitioner), Dr Mark Guttman (neurologist). There are extensive medical records from these doctors and from hospitals where Murray was treated. I do not summarize all of them. Here I set out selected entries that establish the factual basis for Dr Silberfeld’s opinion:
(1) April 4, 2003: Murray was seen with “his son”[18] by Dr Guttman, who noted:
[Murray] has developed cognitive dysfunction that has been apparent to his son over the last two years at least. It may have been present before. Despite working as a senior Vice President for a Trust Company, he has made errors in writing cheques. He has gotten lost going to the bathroom in their apartment at night despite having lived there for 10 years….
… I have not done a formal cognitive assessment but he is clearly having trouble following simple commands today and has trouble following the conversation.[19]
(2) September 16, 2003: Murray was seen with Estelle and his three sons by Dr Guttman, who noted:
I explained to the family that I do not think that he has typical Parkinson’s disease but has stroke induced Parkinsonism. This type of Parkinsonism is associated with cognitive decline as well as his freezing and lower body presentation.[20]
(3) September 9 2003: psychiatric assessment of Murray, which notes:
He described difficulties with concentration and has been unable to read a book properly.
[Murray] would occasionally have a visual hallucinations and this was occurring approximately once per week for the last couple of months.
… Both [Murray] and [Estelle] have noted memory impairment and poor attention span.[21]
(4) October 21, 2003: cognitive assessment of Murray, at which Estelle was present. In the background information, the report notes:
[H]e and his wife reported that he has memory problems and general cognitive slowing…. They reported that these problems have become gradually worse over the past 6 months or so…. [Murray] continues to look after the couple’s finances. Estelle checks over the finances and has found only one error.
[Estelle] indicated that her husband has had an MRI in the past which apparently showed evidence of “mini strokes”.[22]
Under behavioural observations, the assessor noted:
During the interview and numerous times during the assessment [Murray] showed variable alertness. As a result of his cognitive slowing and his tendency to close his eyes, it was sometimes difficult to determine whether he was thinking, or whether he was no longer alert. He lost track of test instructions at various points in the assessment and had to be reminded of the task at hand. This was especially likely to happen when he appeared less alert and more fatigued.[23]
(5) April 14, 2004: on a follow-up appointment with Murray at which Estelle and Bobby were present Dr Guttman summarized Murray’s cognitive assessment:
… dementia… not in a typical pattern of Alzheimer’s disease but likely to be from a multi-infarct state or due to [LBD].[24]
(6) September 2, 2004: Murray, together with his wife and Bobby saw Dr Guttman, to whom they reported:
[Murray] continued to have fluctuating cognition and hallucinations. A particularly distressing event occurred at the end of August. He imagined that his walker was a toilet and proceeded to have a bowel movement on the floor.[25]
(7) December 9, 2004: Murray, together with Estelle and Bobby, saw Dr Guttman and reported to him that “since his last visit his status has been stable”, and that his hallucinations seem to have resolved completely as a result of medication.[26]
(8) April 13, 2005: Murray was admitted to hospital with “delirium and rigidity” and “acute decrease in his level of consciousness, and “decreased level of consciousness”. The history of these problems was provided mainly by Estelle. Murray remained in hospital for a week. He was diagnosed with LBD, and released back into the care of his regular treating doctors.[27]
(9) July 19, 2005: on a follow-up visit, Murray, together with Estelle and Bobby reported to Dr Guttman that Murray had been admitted to hospital with “a urinary tract infection”. Dr Guttman notes that the hospital’s discharge summary does not report that Murray had an infection, and is more focused on changing medication for LBD. Dr Guttman notes that Murray “looks great today but has had a lot of difficulties in the last few months”.[28]
(10) November 28, 2005: on a follow-up visit with Dr Guttman, together with Estelle and Bobby, Dr Guttman notes “[s]ince the last visit I think he is doing quite well.” And that “[h]is memory is still an issue”. He concludes that “he is doing quite well with his combination of parkinsonism and dementia”.[29]
(11) May 2, 2006: on a follow-up visit, Dr Guttman notes:
Since the last visit [Murray] has had a difficult time but has finally turned around…. [H]e developed worsening delirium and hallucinations”, but with an adjustment in medications there has been “improved cognition and his hallucinations have resolved”.
On examination today he cannot really interact with us….[30]
(12) June 27, 2006: Murray was admitted to Sunnybrook Hospital for 16 days, from which he was transferred to the Baycrest Centre for Geriatric Care on July 13, 2006, where he remained for a further 11 days. Murray was admitted to hospital following repeated falls and an occipital hemorrhage, presumably as a result of one of those falls. He was diagnosed with “Parkinson’s/Lewy Body Disease”, and was discharged after a “relatively short stay” at Baycrest because he was “not apt to benefit” from the Centre’s “active and relatively intensive” rehabilitative program due to “somnolence”.[31]
(13) July 25, 2006: Murray was brought back to hospital on July 25, 2006 by Estelle, who reported “increasing confusion over the last two days”. The discharge summary reports that Murray “has severe Parkinson’s disease with dementia”. A CT scan to Murray’s head showed “resolving intracerebral hemorrhage and otherwise moderate to severe atrophy”.[32] Murray was not admitted to hospital this day because Estelle indicated she would prefer to take Murray home and care for him there unless there was an acute issue that required hospital care. There was not.
(14) September 5, 2006: Murray had a follow-up visit with Dr Guttman who noted Murray’s hospital stay following his falls, “in addition to delirium”. Dr Guttman notes that hallucinations and cognitive function have improved with medication adjustments, and overall Dr Guttman considered that Murray was “doing well”.[33]
(15) December 13, 2006: Murray had another follow-up visit with Dr Guttman, who reports that Murray “has been relatively stable” since his prior visit. Dr Guttman notes that after a busy day at Baycrest (where Murray attended an out-patient program two days per week), [Murray] has reduced energy and starts having cognitive difficulties and starts having cognitive difficulties and hallucinations around four o’clock in the afternoon.” Dr Guttman commented that Murray’s “facial expression was masked” and “he was a bit confused today”.[34]
(16) April 24, 2007: on a follow-up visit, Dr Guttman reports: he has done better than I expected…. The biggest issue is that he is having hallucinations and more confusion”.[35]
(17) September 18, 2007: Dr Guttman reports that “since his last visit things have been relatively stable…. [Murray] gets up in the early hours of the morning around six o’clock and becomes quite agitated. He rips off his clothes and then becomes incontinent.” Dr Guttman notes that “[t]he family finds that when [Murray] takes his Exelon he becomes more alert for a few hours.” Dr Guttman observed that “]o]n examination, [Murray] was quite somnolent.”[36]
[39] Dr Guttman testified briefly. He confirmed the diagnoses reflected in his clinical notes. He did not provide an opinion on testamentary competence. He confirmed that Murray experienced “fluctuations in consciousness and alertness” (as is evident from the rest of the evidence), and also confirmed, in general terms, Dr Silberfeld’s description of LBD and its differences from Alzheimer’s and Parkinson’s Disease.
[40] I do not summarize records that post-date the third will. However I note and accept the opinion of Dr Silberfeld that Murray’s medical history from the time of the third will (December 2007) to his death (December 2009) was consistent with the diagnosis of LBD. Dr Shulman did not dispute this point.
c. Lawyers
(i) Jules Kronis
[41] Mr Kronis was called to the bar in 1970 and is a partner in Kronis Rotzstain LLP. He has practiced in the areas corporate/commercial and wills and estates throughout his more than forty years in practice.
[42] Mr Kronis’ first involvement with the Walmans came in November 2005 when he was contacted by Estelle Walman who told him that she and her husband would like to bring their wills up-to-date. They met on November 30, 2005. Notes from Mr Rotzstain and his junior colleague, Abigail Romberg, were filed as evidence.
[43] Mr Kronis attested to the 2005 will (the “second will”), which he drafted on instructions from Murray. That will was signed before Mr Kronis on December 6, 2005. Mr Kronis reported the matter to his clients in January 2006 and sent them a bill, which they paid.
[44] Mr Kronis next heard from the Walmans on June 22, 2006, by way of a telephone call from Estelle. She advised that she wanted codicils prepared for Murray’s will to the effect that if anyone challenged it, that person would be cut out of the will. Mr Kronis advised that he would need to take instructions from Murray to prepare such a codicil.
[45] Mr Kronis next heard from Estelle on July 18, 2006. She wanted powers of attorney prepared for property and personal care for her husband. She also wanted to pursue the codicil she had first mentioned during her telephone call with Mr Kronis the previous month.
[46] Mr Kronis prepared the requested documents and then met with the Walmans on July 26, 2006. In the first part of the meeting he explained the powers of attorney to Murray and he executed them. The second part of the meeting concerned the proposed codicil. Estelle left the room for this part of the meeting and Mr Kronis explained the codicil to Murray. Murray declined to sign the codicil. He said that the will “is alright the way it is”. All of this is borne out in Ms Romberg’s notes of the meeting, which were countersigned by Mr Kronis immediately afterwards.
[47] Mr Kronis next heard from Estelle on August 7, 2007, some thirteen months later. She said that her husband wanted to make a new will, cutting his son Bobby out of the will because he had not been to see him for the previous two months. Mr Kronis said that he would prefer to have a doctor’s assessment that Murray was competent before preparing a will excluding one of the children.
[48] Mr Kronis described this as a courteous call. Initially Estelle said that she was simply conveying information provided to her by her husband. When she met resistance from Mr Kronis she remained courteous, “always a lady and a fine person”, but she became an advocate for her position rather than a reporter of her husband’s wishes.
[49] In cross examination, Mr Kronis referred to an article by Ian Hull to the effect that “capacity” is a flexible concept that relates to what one is being asked to do. The capacity for making a power of attorney for care is different, for example, than testamentary capacity. Mr Kronis was satisfied that Murray made his second will as he did to provide more recognition for Estelle in light of all that she had done for him. He did not indicate any negative animus or disappointment towards any of his sons, each of whom was to be treated equally and the three of whom were still to receive the bulk of the estate. As late as the summer of 2006, Murray rejected an effort to insert a clause in his will that could have the effect of disinheriting one of his sons should that son contest the will – an indication (a) that Murray did not want to cut any of his sons out of his will; and (b) that Estelle had other ideas.
[50] Mr Kronis was not challenged on his evidence in cross examination. Estelle did not contradict Mr Kronis’ evidence in her testimony, and Estelle did not explain why she did not follow Mr Kronis’ advice to obtain an assessment or why she did not tell Mr Clapperton that Mr Kronis had thought that an assessment should be done.
(ii) Christopher Clapperton
[51] Estelle testified that in 2007, her husband told her that he wanted to change his will. He wanted to remove the small bequests to charities, and he wanted to leave out Bobby and David “because he was disappointed by their lack of attention”. Estelle’s daughter recommended Mr Clapperton, and so Estelle arranged the appointment with him. Estelle provided Mr Clapperton with the will prepared by Mr Kronis and gave Mr Clapperton instructions about the changes to be made. Mr Clapperton then prepared a draft will and arranged an appointment to meet with Murray.
[52] Estelle took Murray to the appointment with Mr Clapperton. Then Murray met privately with Mr Clapperton. She testified that she did not see the resulting will, and that she first saw it when her husband died.
[53] Mr Clapperton was called to the bar in 1992 and devotes and considerable portion of his practice to wills, estate and wealth management. He is a competent and experienced solicitor in the area.
[54] Mr Clapperton testified about his meeting with Murray. On the face of this testimony, Murray understood what assets he had currently to dispose of. He expressed concern that his care was expensive and Estelle would need everything to care for him and then for herself. And he expressed dissatisfaction with his sons’ attention to him in recent months.
[55] Mr Clapperton did several things “right” in connection with this interview.[37] He interviewed Murray in Estelle’s absence. He kept good notes. And he asked questions that, facially, comport with the requirement of determining whether the testator understood the extent of his assets. However, in the circumstances of this case, he needed to go further than he did. Murray was proposing to cut his children out of meaningful inheritance in favour of his second wife. To have a financial basis for such a change, Murray had to understand not only what his assets were, but also what Estelle’s assets were. This was not explored appropriately. Murray also had to understand what dispositions he had made to Estelle already. This too was not explored appropriately. Had these issues been explored, Mr Clapperton would have discovered what the case law refers to as “suspicious circumstances”: recent transfers of substantial wealth from Murray to Estelle that had the effect of significantly denuding Murray’s financial position to the benefit of Estelle.
[56] On the issue of filial estrangement, the circumstances were such as to require a more probing inquiry than Mr Clapperton conducted. Murray described his disappointment as arising from relatively recent disregard of his needs by his sons. The cases are replete with judicial decisions that relatively minor slights at the very end of life – whether real or imagined – that result in a change in a will – may be more evidence of loss of capacity than of any significant failure by a beneficiary.[38] Here there was good reason to be concerned that Murray’s expressed disappointment was a product of his diminished capacity, or the influence of his wife, than of any material failure on the part of his children. Of course, Mr Clapperton did not have the benefit of the record before me of the decades-long close relationship between Murray and his boys, and Murray’s statements that he felt well supported by his family. I am not satisfied that Mr Clapperton conducted this part of the interview in sufficient depth. I conclude that what he did learn was sufficient to give rise to concerns about Murray’s stated concerns. This should have been questioned more thoroughly.
[57] Murray ultimately decided not to cut any of his sons out of his will. This is relied on heavily by Dr Shulman as evidence of Murray’s capacity at the time he made his third will. In my view this evidence is not so favourable to Estelle’s position as is suggested. Murray had sufficient cognizant ability to know that he did not harbour negative feelings towards his sons sufficient to disinherit them. That is, he knew what his own feelings were towards his boys. And they were not consistent with Estelle’s report of those feelings to Mr Kronis in August 2007 and to Mr Clapperton before preparation of the third will. Disinheriting the boys was Estelle’s idea, not Murrays, and he declined to go ahead with it. I conclude that, likewise, transfer of almost all assets to Estelle was Estelle’s idea, not Murray’s. He went along with it because it involved feelings of fidelity and love towards Estelle, and not anger at his sons. In other words, I conclude that both proposed changes were as a result of Estelle’s undue influence. Her influence was strong enough to bring about a change that was couched as necessary for her welfare (“we’re running out of money”), but not enough to persuade Murray to make a negative gesture towards his sons (“you should disinherit the boys”). Given the totality of the circumstances, Murray’s repudiation of Estelle’s instructions that the boys be disinherited should have put Mr Clapperton on the alert to test Murray’s understanding of the real basis of the other proposed changes to the will.
[58] And of course, Murray’s age and health history required especial care be exercised; they are, in and of themselves, “one of the most extreme of suspicious circumstances. Few other circumstances demand of the solicitor greater care and caution.”[39] In this regard, Mr Clapperton was told that Murray had “Parkinson’s”. He was not told about the diagnosis of LBD.
[59] Finally, of course, the question is not whether Mr Clapperton did a satisfactory job during his interview with Murray. The question is whether Murray had testamentary competence. Even if Mr Clapperton acted correctly throughout, he could still be wrong in his conclusion, and I have decided that he was.
d. Family Members
[60] I summarize this evidence briefly, because it is, for the most part, anecdotal and general. The evidence I that I accept from family members corroborates the information in Murray’s medical records and Dr Silberfeld’s opinion. I note, at the outset, that statements regarding Murray’s condition that are recorded in the health records were made prior to Murray’s death, at a time when there was no legal issue about Murray’s capacity to make a will. Murray was not generally good at reporting on his own condition, and it is clear from the medical records that, except where those records expressly or by necessary implication indicate otherwise, reports of cognitive difficulties were made by family members, almost always in Estelle’s presence.
(i) Bobby Walman (Murray’s Son)
[61] Bobby described his father as a quiet, gentle man, with a passionate commitment to his family, to local charities and to the Jewish community. He described his father’s attention to detail and record-keeping as “impeccable” and “very precise”.
[62] Bobby said his father was a “great Dad” and he described his relationship with his father as “close” when he was a boy and a young man. After his father remarried in late 1991, Bobby saw less of his father, though they remained close. Murray and Estelle spent lengthy periods in Florida during the winter, and Bobby was occupied with his own young family. As is common enough, as the younger generation undertakes parenthood and the older generation moves into active retirement, both generations have less time for each other.
[63] Bobby testified that there was “an adjustment” after his father married Estelle, and he probably saw less of his father than he had before – dating back to the mid-1990’s. He would speak with his father on the phone every week or two, and this was consistent with the long pattern of regular, but not constant, communication.
[64] Bobby also testified that he did not have a particularly friendly relationship with Estelle, and that he “was not entirely sure” why this was. His explanation, rather cryptic, was “I believe that she had an opinion of me that was not consistent with my own”. He testified that Estelle often suggested that he did not communicate with his father as much as he ought to. But, Bobby testified, he and his father understood and appreciated each other well, and both were happy with their communications and relations with each other.
[65] As Murray’s health deteriorated, Bobby was called on for support more often than his brothers because he was the son living in Toronto. There were a few incidents at the condominium where 9-1-1 had to be called, and Bobby was the child “on deck” to help. He frequently drove his father to doctor’s appointments, and was at the condominium on a regular basis. This evidence is corroborated in the medical records, which show one of Murray’s sons present at many appointments. This participation at medical appointments was reduced in later years, when Murray had attendant caregivers who often went to appointments with him. I infer that Bobby’s help was needed before there were regular caregivers, to manage the task of transporting Murray safely to and from his appointments. Once attendant caregivers were involved, Bobby was not needed for this purpose and so did not go to appointments as much.
(ii) David Walman (Murray’s Son)
[66] David Walman is Murray’s eldest son, 62 years old at the time of trial. He is married with 3 children and has lived in Hamilton for the past thirty years.
[67] David followed his father into the financial services sector, in mortgage investments. He describes his relationship with his father as excellent throughout his life. His contact with his father was less frequent than Bobby’s because he lives in Hamilton. But he reported spending many holidays with his father, including summers at rented cottages on Lake Simcoe, 1-2 week visits in Florida, and various family and religious holidays.
[68] David described his father’s health as “excellent” to the mid-1990’s, and slowly declining thereafter. In the period 2000-2007, David said that he would visit his father every few weeks, often to go out for dinner to a local restaurant like the “Pickle Barrel” or “Winfield’s”, and that he and his father would speak by telephone roughly every two weeks or so.
[69] David described the reduction in his father’s cognitive abilities with an anecdote that was particularly meaningful for him. He had followed his father into the same line of work, and they would often discuss what David was up to professionally. Sometimes David would seek advice from his father. As time went by, their discussions were more about David knowing that his father would be interested in what he was doing. They could discuss matters together as two experienced professionals. David recalls one conversation in the mid-2000’s when he was trying to have such a conversation with his father who, after hearing David describe what he was up to, commented: “well, you should decide if you want to lend them the money”. This comment would be derisive or inane if it had not been a sad indication of Murray’s declining cognitive abilities.
[70] David describes his father’s deterioration in the period 2000-2007 as marked, including periods of hallucinations, disinterest, and difficulties concentrating. At times his father “did not have the capacity to stay on track”.
(iii) Susan Silver (Bobby’s Wife; Murray’s daughter-in-law)
[71] I also heard evidence from Susan Silver, Bobby’s spouse. At the time of trial, Susan and Bobby had been married for 23 years and had three children (ages 11, 15 and 18).
[72] Susan described Murray as an “engaged, big-hearted, soft-spoken, kind, wonderful man” at the time that she married Bobby (late 1980’s). She said that from the time Murray married Estelle, they had frequent contact, including having Murray and Estelle over to their house: she wanted him to know and spend time with his grandchildren. Susan and Bobby would visit regularly at the condominium, and they would have Murray and Estelle over to dinner on weekends and Jewish holidays, often at the same time that Susan had her own parents over for dinner. She described Murray as “a part of our lives”.
[73] Ms Silver testified that Murray started to change around 2000. He was harder to engage. He had reduced interest in other people. He “completely slowed down”. In the period 2000 to 2007, the process of “slowing down completely” progressed. The changes were obvious and noticeable. Murray would often be “sleepy” and “droopy” and would not engage in conversation. And often he would fall asleep or be unresponsive to others.
[74] Ms Silver also testified that on one occasion in 2006, Mr Walman told her that he was being pressured to change his will “to renounce the boys”. I do not admit this evidence for the truth of its contents. First, there was no application to admit this evidence under the principled exception to the prohibition against hearsay evidence. Second, had there been such an application, on the evidence of the circumstances under which this comment was made, I am not satisfied that there are sufficient guarantees of its reliability.
(iv) Glenn Walman (Murray’s Nephew)
[75] Glenn Walman was Murray’s nephew. He worked at Income Trust at the same time as Murray, until the company closed in the early 1990’s.
[76] When they were both working at Income Trust, Glenn saw his uncle weekly in a business setting, and he also saw him at regular family functions. Glenn described his uncle as quiet, soft-spoken, with a sharp mind for financial matters.
[77] After Income Trust closed, Glenn saw his uncle at family functions regularly, and also saw him from time to time at Glenn’s parents’ cottage and at dinners held at Bobby Walman’s house. Glenn testified that he saw his uncle about five times a year in the period 1995 – 2000. From 2000 to 2007, Glenn saw his uncle less – perhaps no more than three times a year.
[78] Glenn reports that Murray Walman was in decline in the years 2000 to 2007, and that by 2007, his uncle would often be unresponsive to conversation.
(v) Estelle Walman (Murray’s Wife)
[79] Ms Walman’s evidence respecting her husband’s condition was inconsistent and self-serving. I prefer to characterize this largely as a result of Estelle’s proximity to the situation and, as Dr Silberfeld testified, the general tendency of close relatives to underestimate the extent of a loved one’s impairment.[40] But there is more to it than that: the inconsistencies in Estelle’s evidence are adversarial and couched in uncautious language. Estelle has an animus towards Bobby and David, and has felt this way for many years and this animus has coloured her evidence. I conclude that Estelle has wilfully overstated the evidence to advance her own interests.
[80] This conclusion is driven by what can only be described as a devastating cross examination. During examinations for discovery, in speaking of the period around 2005, Estelle testified that her husband’s primary health problems concerned mobility issues: getting up and moving around. She described his memory and mental acuity at that time as “very good”. At trial she characterized her husband’s memory at the time of the 2005 will as “not great”. These are hardly terms of art, but they are not two different ways of saying much the same thing. The issue in this case is Murray’s mental capacity to make a will. The difference between “very good” and “not great” is chasmic in the context of this case.
[81] Estelle also testified at discovery that her husband had “no problems” with his memory at the time of the 2005 will. At trial she allowed as how he had “some problems” with his memory back in 2005. Again – these are not terms of art, but neither are they different words chosen to convey the same meaning in respect to a central issue in the case.
[82] With these goal posts established – a vacillation between “no problems” and “some problems”, between “very good” and “not great” – counsel cross examined Estelle on her husband’s medical records. Estelle agreed that she went on all doctors’ visits and was present for them. Based on Dr Guttman’s notes, then, Estelle was present as follows:
a. June 18, 2003, when it was stated that Murray had been suffering “mini-strokes” which were causing “cognitive issues”;
b. Sep 16, 2003, when Dr Guttman advised her that Murray’s condition was associated with “cognitive decline”;
c. Nov 20, 2003, when “increased confusion” was reported to Dr Guttman and noted;
d. Apr 29, 2004, when she reported to Dr Guttman “new episodes of hallucinations”;
e. July 12, 2004 and August 25, 2004, when “hallucinations” were reported by her to be “more common”;
f. Sep, 2004, where it is noted that Murray is diagnosed with “dementia”;
g. March 31, 2005, where she reported Murray as being “irrational all evening”;
h. Apr 11, 2005, where she reported Murray as “hallucinating”
i. Apr 28, 2005, when she reported that Murray was “a zombie” when he wakes in the morning;
j. May 13, 2005, where she reported that Murray was, at times “very disoriented” and showing “increased confusion”;
k. Jan 23, 2006, again describing Murray as “like a zombie”, that his “cognition was worse”, and that he was prone to “thrashing”;
l. Apr 24, 2007, reporting that Murray “gets lost in the bedroom”;
m. Apr 27, 2007, reporting that Murray was “a zombie all day”.
[83] Estelle Walman knew perfectly well that her husband was suffering from serious and progressive cognitive decline throughout 2003 to 2007, and her evidence to the contrary at discovery was simply false.
[84] Susan Silver testified that Estelle described Murray as “zombie-like” in a conversation between them. Estelle denied this evidence vehemently, indignantly. She would never use the word “zombie” to describe her husband. As with other conflicts in the evidence, she took umbrage at the suggestion that she was not telling the truth. And yet the medical records clearly indicate that Estelle used the word “zombie” to describe her husband, not in some idle social conversation with her daughter-in-law, but in a medical consultation with her husband’s neurologist. And she did so on more than one occasion. Umbrage, even great umbrage, is no defence to such documented inconsistencies in the evidence.
[85] As with any witness, it is open to the court to accept all of her evidence, some of her evidence, or none of her evidence. In this case I reject Estelle’s evidence outright. I find that she used her position of influence with Murray to persuade him to transfer most of his wealth to her. Although she was unsuccessful in turning her husband against his sons by disinheriting them formally, she did achieve most of her goal by persuading Murray that she needed the money because the cost of his attendant care was depleting their resources. In defence of what she has done, she has testified about Murray’s health condition in a manner so inconsistent with the reality that it cannot be explained simply by a propensity of loved ones to see things through rose-coloured glasses. Cognitive decline was a serious ongoing issue for Murray from 2003 to 2009, and Estelle knew this full well when she testified otherwise at discovery and latterly at trial.
e. Gordon Ross
[86] Gordon Ross has known Estelle for “fifty years”. He lives in suite 406 of the same building where Estelle lives in suite 405. At the time that he testified Mr Ross was 90 years old.
[87] Mr Ross was in the life insurance business for 62 years. In 2006, at roughly the age of 86, he was still in the business of selling financial products.
[88] Mr Ross testified that Murray had purchased a RIF when he was 71 years old. The RIF expired on its tenth anniversary. On Mr Ross’s advice, Murray put the money from the RIF into an annuity with Estelle as joint beneficiary.
[89] Mr Ross testified that, at this time (2006), Murray “may have had physical challenges but never any mental ones that I saw”. Mr Ross “had no doubts about his mental capacity”, and was of the view that there was no “cognition question”.
[90] Mr Ross testified that he did see a decline in Murray between 2003 and 2007, but he “never noticed any mental decline”, he “never noticed any memory problems”. As far as Mr Ross was concerned, Murray “was not confused or I never noticed it”.
[91] Mr Ross testified that he was good friends with the Walmans – they would socialize together 2-3 times per month, including frequent meals together. He agreed that he had known Estelle much longer and considered her a friend. He said that Estelle’s involvement in the purchase of the annuity was “absolutely none”, even though Mr Ross’s written proposal is entitled, in big, bold letters, “An Investment Approach for Murray and Estelle Walman”.[41]
[92] I do not accept this evidence.
[93] From the evidence of the expert medical witnesses and members of the Walman family, Murray was clearly suffering from a significant burden of illness escalating from 2003 through to his death in 2009. The effects would have been obvious to anyone with sustained and regular contact with Murray. The question for this trial is not whether Murray was suffering diminution in his mental capacities, but rather, whether that diminution was such as to deprive him of the legal capacity to make a will, and/or whether his ability to make decisions was overborne through the undue influence of his wife. Mr Ross’s evidence is so obviously overstated as to be unreliable and unworthy of any credit on this issue. I need not and do not decide whether this overstatement was knowing, to justify Mr Ross’s role in selling a product to Murray that advantaged his friend Estelle and disadvantaged Murray’s children, or whether it was a matter of blindness to the situation because of his focus on “making a sale”. In either event, I do not accept this evidence.
2. Estelle’s Decision Not to Obtain a Capacity Assessment
[94] Mr Kronis drew the 2005 will. In August 2007, he was contacted by Estelle to draw a new will for Murray. Estelle explained what she said her husband had in mind for the new will (which is reflected in the will that was drafted by Mr Clapperton, the “third will”). Mr Kronis advised Estelle that Murray should be assessed for testamentary capacity. The conversation ended and Mr Kronis did not hear from Estelle or Murray again.[42]
[95] Estelle did not follow this advice. Instead, she sought out another lawyer, Mr Clapperton. She did not tell Mr Clapperton that Mr Kronis – another senior and experienced solicitor, with prior experience with Murray – had advised that there should be an assessment. I infer as follows from these events:
a. Estelle did not want to follow Mr Kronis’ advice to obtain an assessment;
b. Estelle was concerned that Murray might be assessed as lacking testamentary capacity, in which event a new will could not be made;
c. Estelle wanted the new will made;
d. Estelle knew she would need some evidence of capacity to support a fresh will;
e. Estelle took Murray to a new lawyer in the hopes that the new lawyer would not require an assessment;
f. Estelle did not tell the new lawyer that another experienced lawyer had felt an assessment should be obtained because she did not want the new lawyer to come to that conclusion.
[96] Estelle testified that the decision to go to a new lawyer was Murray’s. She said he told her he wanted someone new because Mr Kronis would be too expensive. Estelle did not give evidence as to what Mr Kronis had charged for the second will, or for the subsequent powers of attorney. She did not provide evidence as to what Mr Clapperton charged for the third will. She provided no basis for a conclusion that Mr Clapperton was less expensive than Mr Kronis, or that the amounts were material. I reject Estelle’s evidence on these points. She did intend that Mr Kronis prepare the third will, until Mr Kronis raised the competence issue. She then took her husband to Mr Clapperton, not to save money, but to obtain the third will without Murray having to undertake a competence assessment.
[97] The decision not to obtain a capacity assessment “does not automatically doom” the third will or “relieve this court of the obligation of determining the issues of testamentary capacity and undue influence”.[43] However, I am satisfied that, in this case, the failure to obtain an assessment is a basis for inferring that Estelle feared that Murray would be found incapable.
3. Lack of Evidence that the Walmans Were “Running Out of Money”
[98] On Mr Clapperton’s evidence, Murray understood what assets he had available to dispose of in his will. I accept that evidence. On Mr Clapperton’s evidence, Murray understood who the persons were with a moral claim against his estate, and he had reasons for reducing his bequests to his sons. I accept that this is what Mr Clapperton was told by Murray.
[99] I do not, however, accept that Murray had a true appreciation of his overall financial position, or of the state of his relations with his sons, both as a result of the burden of his severe affliction with LBD and Estelle’s undue influence.
[100] Mr Clapperton did not indicate that Murray understood how much money Estelle had, and how Murray’s current financial situation was a result of capital transfers to Estelle. The statement of affairs of the Estate of Murray Walman filed at trial indicates that Murray had an annuity (valued at about $255,000 in January 2007) and mortgages jointly held with Estelle valued about $405,000 – a total of joint assets of about $660,000 at the time of his death. Bank accounts (not listed on the statement) were held jointly with Estelle as well, so whatever had been in them passed to her. The only other asset held by Murray at the time of his death was his investment in the Kitchener commercial plaza, which was valued at between $60,000 and $70,000.[44]
[101] I was told that Estelle owned the condominium; I was not told what it was worth. I did not have evidence of any other assets owned by Estelle. I have no evidence of the extent to which Murray and Estelle’s overall capital position appreciated or declined between 2000 and 2007. Based on Murray’s 2008 tax return, he had an annual income of about $75,000 and Estelle had an annual income of about $35,000. Aside from the deducted medical expenses shown in that tax return of about $40,000, I do not know what their expenses were.
[102] Estelle testified, in general terms, that she and her husband had considerable expenses paying for his care which, towards the end of Murray’s life, included continuous in-home attendant care. She testified that these services cost between $40,000 and $50,000 per year. This claim was not fully supported by financial records, but neither was it challenged in cross examination.[45] I accept it for the last four years of Murray’s life: aside from the last lengthy stay in hospital, during the last four years of his life, Murray had attendant care during his waking hours, and Estelle’s estimated annual costs for this care seem reasonable. What I do not have, however, is evidence of the effect of these expenses on the financial picture of the family.
[103] Estelle testified that she was the sole beneficial owner of the jointly-held mortgages – that all had been purchased entirely with “her” money. She provided a one page ledger and copies of four cheques drawn on her own bank account to support this claim.[46] Estelle testified that the mortgages that had been held by Murray had been liquidated and put in his bank account “and that is what we lived on”. With respect, Estelle needed to provide far more documentation to establish her claim that the joint mortgages are all “her money”. Where did the money in her bank account come from? Where did Murray’s money go? This should have been easy to establish through bank accounts and other financial records. I draw an adverse inference against Estelle for failing to provide a clear picture of her financial position and Murray’s financial position at least for the five years prior to Murray’s death, and, if that information so warranted, further still back in time.
[104] Murray was making loans to his children, and later to Estelle’s daughter, in the mid- to late-1990’s. At this time Murray must have felt that he could afford to do these things. Of course, he might well have not been considering the possibility that he or his wife could fall prey to a debilitating long-term illness. But still, there should have been financial records available going back to the time before Murray became ill that would have showed his net worth, Estelle’s net worth, and the manner in which their assets were held.
[105] Further, it should not have been hard for Estelle to show that she and Murray were “running out of money” if it was true. I draw an adverse inference from her failure to do so. I also note that s.13 of the Evidence Act requires corroboration of an “interested party[‘s]… own evidence in respect of any matter occurring before the death of a deceased person”.[47] As stated by my colleague Penny J. in Orfus Estate, s.13 does not require corroboration of “every particular of the party’s evidence.”[48] However, the statement that “they were running out of money” is a bedrock claim to justify the third will. I do not consider the report of Murray’s statement to Mr Clapperton to this effect to corroborate Estelle’s assertion. Rather, it is better seen as evidence that Estelle told Murray that they were running out of money, that Murray believed this, but not that this statement was true.
[106] Murray’s explanations to Mr Clapperton were based on his understanding of his own assets at the time the third will was made. They did not reflect an understanding of Estelle’s financial position, or the extent to which she had or would receive money that had been Murray’s. Just as I cannot conclude that the Walmans were “running out of money”, I see no basis on which Murray could have made such an assessment, and he did not provide an explanation to Mr Clapperton that satisfies me that he understood these things.
[107] I do know, from the evidence, that in 2003 Murray considered that a bequest to Estelle of $50,000 would be sufficient for her.[49] I know that in 2005, Murray increased Estelle’s gifts under his will such that she would receive $50,000, his sons would receive the commercial plaza, and, subject to some minor bequests, Estelle and Murray’s three sons would then take equal ¼ shares in the residue of the estate.[50] I know, from Estelle, that net proceeds of mortgages held by Murray were put in their joint bank account and used to pay their living expenses (that is, that Estelle was not funding their living expenses from her own resources). And I know that the joint assets at the time of death were valued at something in the order of $660,000. I see no basis for a conclusion that the Walmans were “running out of money”.
4. Weak Evidence that the Walman Sons “Neglected” Murray
[108] During a psychiatric assessment of Murray in September 2003, at which Estelle was present, it is reported that “[o]ne of [Murray’s] children lives in Toronto and 2 live out of town. He feels well-supported by his family.”[51]
[109] As Murray’s health deteriorated, Bobby was called on for support more often than his brothers because he was the son living in Toronto. There were a few incidents at the condominium where 9-1-1 had to be called, and Bobby was the child “on deck” to help. He frequently drove his father to doctor’s appointments, and was at the condominium on a regular basis.
[110] Bobby described his father’s overall health and cognitive abilities as “failing” by around 2003, and it was at this time that Murray asked his three sons to come with him to see a lawyer to get his estate in order. Bobby said that Murray had not wanted Estelle to know that they were going to do this. The four men went to see Murray Shankman, a lawyer Bobby described as one of Murray Walman’s “cronies”. Bobby had never met Mr Shankman before this meeting. Mr Shankman drew the “first will”, under which Estelle was to receive $50,000, and each of Mr Walman’s sons would receive 1/3 of the balance of the estate.
[111] I infer that as of November 2003, when Mr Walman made the “first will”, he was not displeased with his sons and made them his primary beneficiaries.
[112] In December 2005, Mr Walman made the “second will”, under which he still left his sons as substantial beneficiaries of his estate.
[113] From December 2005 until August 2007, there was no discernible change in the relations between Mr Walman and his sons. If anything, they were called on to provide more support than they had in the past, because of their father’s failing health. Indeed, the only evidence I have of material changes during this period have to do with Murray Walman’s mental and physical health: he became more withdrawn and remote, at times “unresponsive” and confused to the point of becoming lost in his own bedroom. I am satisfied that to the extent, if any, that Mr Walman was dissatisfied with his son’s attentions, this was a result of Estelle’s views that they were not doing as much as they should for their father.
[114] Bobby and David said that their attentions did not change in any material way, and Estelle claimed that they did. For reasons given above, I prefer the evidence of Bobby and David to the evidence of Estelle, which I am not prepared to credit. I do accept, however, that Estelle felt the Walman sons should have been doing more than they were, and that she made her feelings known to her husband, and tried to get him to change his will as a result. This is evidence of undue influence; it is not persuasive of the contention that Bobby and David actually did neglect their beloved father.
5. Murray’s Odd Dispositions to his Sons in his Third Will
[115] This is a small point, but it buttresses my overall conclusion that Mr Walman did not have testamentary capacity. Mr Walman was a sophisticated and careful person with money. He had spent his professional lifetime managing money.
[116] In the 2007 will, he leaves everything to Estelle Walman except for an illiquid investment of 73 shares in a small commercial plaza. He also leaves Estelle half of the value of his interest in the plaza. The remaining half he divides into two shares. One he leaves to Estelle, and the other he leaves jointly to his three sons. The net value of the bequest to his sons is between about $2000 and $3500 each.
[117] This makes no sense to me. If Murray had wanted to leave ¾ of his interest in the plaza to Estelle, he would have done this. And if he was going to restrict his other gifts to small bequests to his sons, he would have done that directly: left each of them $2500 or $3000, with everything else to go to Estelle. Such an arrangement would have made for more efficient estate administration. Mr Clapperton did not provide any explanation as to why Murray made such convoluted arrangements to bequeath such modest amounts to his sons. In my view, this is not an arrangement that would be made by a practical and clear-thinking financial professional.
6. Murray’s Odd Treatment of Family Loans in the Third Will
[118] As noted above, Murray made loans to each of his sons and to one of Estelle’s daughters. In the first will and second will, he forgave the loan to Estelle’s daughter. He did not expressly forgive the loans to his sons. However those loans were roughly equal, and Murray’s sons were sharing the estate equally. There was no need to forgive their loans since they would be receiving them as part of the residue of the estate.
[119] In the third will, Murray’s sons were removed as residual beneficiaries. As in the prior versions of the will, the loan to Estelle’s daughter was forgiven. The loans to Murray’s sons were not forgiven. The net effect is that these loans continue to be assets in the estate. And so, if the third will is effective, Murray has forgiven the loan to Estelle’s daughter, but is requiring his three sons to continue to repay their loans to his estate, to the benefit of Estelle. I expect this is a matter of oversight – that Murray forgot that he needed to forgive these loans and did not describe them to Mr Clapperton as assets of his. It is further evidence that Murray was in no state to arrange his affairs and make a will at the time of the third will.
[120] Mr Clapperton’s notes indicate that he discussed the loan to Estelle’s daughter and Murray confirmed that it should be forgiven. Mr Clapperton;s notes do not reference the loans to Murray’s sons and Mr Clapperton does not recall this issue being discussed.
7. Summary and Conclusion
[121] Murray Walman suffered from Parkinson’s Disease and LBD from 2003 through to his death in 2009. He experienced decline in his cognitive functions progressively through this period. During this same period he was subject to the influence of his wife, Estelle, who had primary responsibility for managing his care. Murray loved his wife. He also loved his sons.
[122] Murray’s wife, Estelle, had poor relations with two of Murray’s sons, David and Bobby. These poor relations extended back into the 1990’s, and continued up to Murray’s death.
[123] Murray’s care was expensive towards the end of his life, involving attendant care during Murray’s waking hours. In Murray’s final years these costs were as much as $40,000 annually.
[124] Estelle claimed that they were “running out of money”. No doubt the medical costs were substantial for the Walmans, but Estelle has not proved that their financial position was materially damaged as a result. Nevertheless, she persuaded Murray that their financial situation was such that he should be using his resources to provide for her rather than leaving his money to his sons.
[125] Estelle has not established that her claim of financial need was justified, or that Murray had the information he would need in order to come to that conclusion. Instead, she persuaded Murray to do what she wanted him to do in arranging his financial affairs, out of love for and a sense of responsibility to her that should take priority over his love for his sons.
[126] Murray was suffering a substantial “burden of illness” during this period, and was persuaded to do what Estelle wanted for this reason. He rejected acting upon negative feelings towards his sons – he would not formally cut them out of his will – but he did respond favourably to Estelle’s calls upon his duties towards her.
[127] There were significant issues about Murray’s testamentary capacity. He made the first will in 2003. No witness called his capacity into question at this time. In this will he left $50,000 to Estelle, and most of the rest of his estate to his three sons.
[128] He made his second will in 2005, at Estelle’s behest. In it, he left Estelle $50,000, he left his sons an interest in a commercial plaza in Kitchener (now valued around $60,000 to $70,000), and, subject to a few minor bequests, divided the reside of his estate into four equal shares, one for Estelle and one for each of his sons. Dr Silberfeld doubts that Murray had testamentary capacity to make this second will. However, the plaintiffs do not ask the court to set aside the second will.
[129] In late 2006, Murray placed roughly $255,000 of his capital into an annuity with joint survivorship with Estelle. This was a substantial transfer of wealth to the benefit of Estelle, and was made as a result of undue influence from her, her claim, unsubstantiated, that “they were running out of money”.
[130] In 2007, Estelle tried to arrange for Mr Kronis to draw a new will, cutting two of Murray’s sons out of his will. Mr Kronis recommended a capacity assessment. Instead of obtaining this assessment, Estelle went to another lawyer, Mr Clapperton, who drew the will requested by Estelle. Mr Clapperton reviewed the will with Murray. Murray would not agree to cut his sons out of his will, but did revise his will to leave almost everything to Estelle. He did this because he had been persuaded by Estelle that “they were running out of money” and he should be providing properly for her. Again, the claim that “they were running out of money” was not true and Murray had no proper basis for believing it.
[131] Mr Clapperton was satisfied that Murray had testamentary capacity, based on his meeting with him. However, he was wrong. Murray was suffering from a very substantial burden of illness, and his executive and higher analytical functions were compromised to the extent that he could not appreciate the true state of his and Estelle’s financial positions. What he knew was that Estelle believed that “they were running out of money”, that he himself had little disposable capital left because of the way in which his affairs had been arranged, and so he acceded to Estelle’s moral claims against him.
[132] In the language of the caselaw, there were highly suspicious circumstances surrounding the making of the third will and the impugned capital transfers. Estelle has not satisfied me that Murray had testamentary capacity or acted without undue influence. But in any event this case does not turn on the burden of proof. Having rejected Mr Clapperton’s conclusions, rejected Estelle’s evidence and the evidence of Mr Ross, and having accepted Dr Silberfeld’s opinion, I find the plaintiffs’ case overwhelming.
[133] While it is theoretically possible that Murray had testamentary capacity in 2007 (as stated by Dr Shulman), it was “probably almost impossible” that he had the requisite capacity. I have no hesitation in concluding that Murray lacked capacity and that the third will and his transfers of capital to Estelle in the five years prior to his death were products of undue influence by Estelle.
C. Final Order
[134] Judgment shall issue as sought in paragraphs 1 (a), (b), (d) and (g) of the statement of claim, with the additional order that Estelle return to Murray’s estate any assets transferred to her directly or indirectly (including by way of right of survivorship created during the five years prior to Murray’s death).
[135] The plaintiffs requested a determination whether the second will was made at a time that Murray lacked testamentary capacity. The plaintiffs did not pursue this request at trial, and instead led the evidence of Mr Kronis, the drawer of the second will, in support of their case. Accordingly the claim in paragraph 1(c) of the statement of claim is dismissed as abandoned. I consider that the relief claimed in paragraphs 1(e) and (f) is subsumed in the judgment I have granted.
[136] If there are any issues concerning the accounting and reconveyance required by the terms of this judgment, the parties may schedule an appointment before me to seek directions
Costs
[137] The parties have agreed on costs, subject to this court establishing the scale of costs (partial indemnity of $35,000, or substantial indemnity of $45,000). If the parties cannot agree on the appropriate scale of costs, given the result and any pertinent offers to settle, then the plaintiffs shall deliver costs submissions by January 31, 2015, and the defendants shall deliver responding submissions by February 14, 2015. These submissions shall be restricted to the question whether costs should be on a partial or substantial indemnity basis.
D.L. Corbett J.
Date: January 9, 2015
[1] Murray Walman’s sons’ ages ranged between 52 and 62 at the time of trial.
[2] I generally refer to members of the family solely by their first names to avoid confusion or undue repetition of the word “Walman”.
[3] Exhibit 1, tabs 1, 2 and 3 respectively.
[4] The general principles have been summarized often and well in a great many cases. In addition to the authorities cited below, see, for example, Smith Estate v. Rotstein (2010), 56 E.T.R. 216 (Ont. S.C.J.) at paras.116-119, and Gironda v. Gironda (2013), 2013 ONSC 4133, 89 E.T.R. (3d) 224 at paras. 50-58.
[5] Calvert v. Calvert (1997), 1997 12096 (ON SC), 32 O.R. (3d) 281 (Gen. Div.); Re Armitage Estate, [1990] N.S.J. 510 (Probate); aff’d [1991] N.S.J. 50 (N.S.C.A.).
[6] Hall v. Bennett Estate (2003), 2003 7157 (ON CA), 64 O.R. (3d) 191 (Ont. C.A.).
[7] Spence v. Price, 1945 339 (ON CA), [1946] O.W.N. 80 at apra. 10 (C.A.), quoting with approval Banks v. Goodfellow (1870), L.R. 5 Q.B. 549 at 565.
[8] Re Armitrage Estate (1990), 1990 13184 (NS PR), 95 N.S.R. (2d) 91, 251 A.P.R. 91, para. 58 (Probate Court); aff’d. (1991), 1991 2501 (NS CA), 106 N.S.R. (2d) 101 (N.S.C.A.).
[9] Smith Estate v. Rotstein, 2010 ONSC 2117, [2010] O.J. No. 1527; aff’d. 2011 ONCA 491, [2011] O.J. 3075 (C.A.).
[10] Vout v. Hay, 1995 105 (SCC), [1995] 2 S.C.R. 876 (S.C.C.).
[11] Schwartz v. Schwartz, 1970 32 (ON CA), [1970] 2 O.R. 61, 10 D.L.R. (3d) 15, at para. 17. (C.A.) See also para. 23 of this decision.
[12] MacGregor v. Martin Estate, 1965 17 (SCC), [1965] S.C.R. 757.
[13] Vout v. Hay, 1995 105 (SCC), [1995] 2 S.C.R. 876 at paras. 26-28.
[14] Murphy v. Lanphier (1914), 23 O.L.R. 287 at 318.
[15] Dr Silberfeld has upwards of sixty writings on the topic of legal capacity assessments.
[16] Exhibit 9, page 8.
[17] Exhibit 9, p.7.
[18] On the basis of Bobby’s uncontradicted evidence, he was the “son” present at medical appointments.
[19] Compendium, Exhibit 2, tab 1.
[20] Compendium, Exhibit 2, tab 2. This diagnosis was repeated in letters “to whom it may concern” in October 2003 and 2004, which were for the purpose of communicating Murray’s condition to care providers in Florida: Compendium, Exhibit 2, tabs 4 and 10.
[21] Compendium, Exhibit 2, tab 3. The assessor makes observations, both positive and negative, concerning Murray’s cognitive function, however it is not clear that these comments were conveyed to Murray and Estelle. This was an assessment for depression, not cognitive function, and I do not infer that Murray’s general practitioner would have communicated the assessor’s aside comments on cognitive issues given that Murray was then scheduled for a formal cognitive assessment.
[22] Compendium, Exhibit 2, tab 5, pp. 1-2.
[23] Compendium, Exhibit 2, tab 5, p. 2.
[24] Compendium, Exhibit 2, tab 6.
[25] Compendium, Exhibit 2, tab 7.
[26] Compendium, Exhibit 2, tab 13.
[27] Compendium, Exhibit 2, tab 14.
[28] Compendium, Exhibit 2, tab 15.
[29] Compendium, Exhibit 2, tab 16.
[30] Compendium, Exhibit 2, tab 17.
[31] Compendium, Exhibit 2, tab 18.
[32] Compendium, Exhibit 2, tab 19.
[33] Compendium, Exhibit 2, tab 21.
[34] Compendium, Exhibit 2, tab 22.
[35] Compendium, Exhibit 2, tab 23.
[36] Compendium, Exhibit 2, tab 24 (mislabeled 23).
[37] See Hall v. Bennett Estate (2003), 2003 7157 (ON CA), 64 O.R. (3d) 191 (C.A.).
[38] See, for example, Smith Estate v. Rotstein (2010), 2010 ONSC 2117, 56 E.T.R. (3d) 216, para. 117 (Ont. S.C.J.).
[39] M.M. Litman and G.B. Robertson, “Solicitor’s Liability for Failure to Substantiate Testamentary Capacity” (1984), 62 Can Bar Rev. 457 at 474, quoted with approval in Hall v. Bennett Estate (2003), 2003 7157 (ON CA), 64 O.R. (3d) 191 at para. 25 (C.A.).
[40] Estelle’s tendency to understate Murray’s situation to others seems to pre-date the impugned transactions, and thus there is some basis for concluding that it was sincere, even if misplaced. She arranged for travel insurance for the winter of 2003-2004 while they were in Florida. She subsequently made a claim on Murray’s behalf. The claim was denied by the insurer on the basis that the application for insurance failed to disclose Murray’s diagnosis of dementia. Estelle, in a note to Dr Guttman, wrote “as far as I know Murray does not have dementia”. On September 23, 2004, Dr Guttman disabused her of this belief, and advised her to arrange insurance with another insurer prepared to offer insurance to persons diagnosed with dementia: Compendium, Exhibit 2, tabs 9 and 10.
[41] Exhibit 8, front page.
[42] Mr Kronis’ contemporaneous notes of this conversation are found in his file: Exhibit 1, tab 4, 29 pages from the front of the tab.
[43] Duschl v. Duschl Estate (2008), 39 E.T.R. (3d) 229, at para. 93 (Ont. S.C.J.).
[44] Exhibit 7.
[45] One of Murray’s tax returns – for 2008 – shows deductions for medical expenses in 2009 of about $40,000. See Exhibit 7.
[46] Exhibit 4.
[47] R.S.O. 1990, c. E.23, s.13.
[48] Orfus Estate v. Samuel and Bessie Orfus Family Foundation (2011), 2011 ONSC 3043, 71 E.T.R. (3d) 210 (Ont. S.C.J.), aff’d. (2013), 2013 ONCA 225, 86 E.T.R. (3d) 6 ()nt. C.A.).
[49] First Will, paragraph 1(d), Exhibit 1, tab 1, p.2.
[50] Second Will, Exhibit 1, tab 2.
[51] Compendium, Exhibit 2, tab 3, p.3.