COURT FILE NO.: CV-13-5278-00

DATE: 2015-08-21

ONTARIO
SUPERIOR COURT OF JUSTICE

B E T W E E N:

LYSTRA DAVID, personally, and as estate trustee of the estate of HOLLIS DAVID

Wade Morris, for the Applicants

Applicants

• and -

TRANSAMERICA LIFE CANADA, RHINDA DAVID, RANDOLPH DAVID, and GAIL DAVID

Alwyn Phillips, for the Respondent, TransAmerica Life Canada
Osborne Barnwell, for the Respondents, Rhinda David and Randolph David

Respondents

HEARD: February 25, 2015,
at Brampton, Ontario

Price J.

Reasons For Order

NATURE OF MOTION

[1] Hollis David filed a Change of Beneficiary form a year before his death with the company that had issued him a $100,000 life insurance, the effect of which would have been to transfer $80,000 of the proceeds from the children of his second marriage, whom he had designated as beneficiaries a decade earlier in order to provide for their education, and who were about to enter university, to a daughter from his first marriage, who was economically self-sufficient.

[2] Because Mr. David made obvious errors in completing the form, even though he had previously been employed by the same insurance company and knew their practices, the company did not change the beneficiaries based on the form it received from him. Because Mr. David told his second wife, shortly before signing the form, that he was “in trouble” with his children from his first marriage, who had learned of the existence of the policy, and because the daughter who was to be the new beneficiary did not disclose the existence of the Change of Beneficiary form before trying to obtain the proceeds from the company, the second wife and her children suspect that Mr. David signed the form under duress, and made obvious errors in the form to ensure that the insurance company would not act on it.

[3] The daughter from the first marriage now applies for a declaration that the Change of Beneficiary form is valid and the children of the second marriage apply for a declaration that it is not valid.

[4] For the reasons that follow, I find that the 2011 Change of Beneficiary form is not a valid declaration pursuant to the Insurance Act and is not a valid testamentary instrument that is capable of effecting the distribution of Mr. David’s insurance proceeds:

a) An alteration was made to the distribution of proceeds set out in the 2011 Change of Beneficiary form, and Lystra David has not discharged her burden of proof to establish that the change was made before Mr. David signed it. The alteration therefore amounts to a revocation of the Change of Beneficiary, and because there is insufficient evidence that the form, as altered, was signed, it is not a valid declaration pursuant to the Insurance Act.

b) There are suspicious circumstances surrounding the preparation of the 2011 Change of Beneficiary form, and Lystra David has not discharged her burden of proof to establish that Hollis David approved of the form, as altered.

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Price J.

Released: August 21, 2015