W.W. v. Y.Y., 2016 ONSC 2387

CITATION: W.W. v. Y.Y, 2016 ONSC 2387

COURT FILE NO.: CV-15-121611-00

CV-15-123580-00

Estate File # 28879

DATE: 20160525

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

W.W.

Plaintiff/Moving Party

– and –

Y.Y.

Defendant/Responding Party

Ryan P. Zigler, for the Plaintiff/Moving Party

Jonathan Piccin, for the Defendant/ Responding Party

HEARD: April 29, 2016

REASONS FOR DECISION

GILMORE J:

Overview

1The applicant and moving party, W.W. moves for an Order for Directions pursuant to Rule 75.06. The motion is opposed by the respondent Y.Y. The respondent argues that the court should dismiss W.W.’s will challenge at this stage without a hearing on the merits. Y.Y. argues that W.W. has not presented sufficient evidence to support an inference that her claim should be heard.

2W.W. does not agree. Her position is at the time the holograph will was executed her father was suffering from brain cancer, which caused cognitive impairments. Further the wording of the will and the manner in which the deceased referred to W.W. and her brother raises inferences that the deceased was suffering from a psychiatric illness at the time he executed the will which may have negated his testamentary capacity.

Background Facts

3W.W. is the 24 year-old daughter of the deceased Mark Joseph, by his first marriage. Y.Y. is the second wife of the deceased. She is the executor of the deceased holograph will which he executed on April 24, 2011.

4The deceased died on June 26, 2013. Pursuant to the terms of the will he left his entire estate to Y.Y. and excluded W.W. and her 16 year-old brother.

5W.W. filed a notice of objection to the respondent acting as estate trustee pursuant to Rule 75.03. She challenges the validity of the will on the grounds of incapacity and public policy. W.W. argues that the onus on her at this stage of the proceeding is not a significant one. She need only adduce some evidence of suspicious circumstances. If such circumstances are found by the trial judge, the onus will shift to Y.Y. as the propounder of the will to prove testamentary capacity. W.W. submits that she has adduced sufficient evidence on this motion to satisfy the onus and seeks an order for directions with respect to the method for bringing forward her will challenge.

6W.W. also seeks an appointment of an estate trustee during litigation taking the position that Y.Y. is not a fit person to act as an estate trustee. She alleges Y.Y. mislead her about her intention to apply for probate (note: in the context of the argument and materials on this motion counsel referred to “probate” rather than an application to be appointed as estate trustee). Further, the amount of assets listed in the application for probate is incorrect and was known to be incorrect by Y.Y. at the time she submitted the application for probate.

7The applicant also seeks costs of her motion heard March 31, 2015. W.W. brought that motion because Y.Y. refused to provide her with a copy of the will but made representations that she would apply for probate. However, she failed to do so and W.W. was compelled to bring a motion requiring Y.Y. to make the application. DiTomaso J. ordered that Y.Y. be restrained from dealing with the estate assets. That restraining order was continued by Vallee J. on August 13, 2015, who also reserved the issue of costs of the motion.

8The deceased died of an aggressive form of brain cancer which was initially diagnosed in the spring of 2010. He underwent brain surgery. The deceased was a lawyer practicing as a sole practitioner in the City of Toronto. The deceased and Y.Y. were married on December 26, 2010, although they had cohabited for a lengthy period of time before their marriage.

9It is relevant with respect to the issues raised in this motion that W.W.’s mother and the deceased engaged in contested matrimonial ligation over many years. W.W.’s mother took the position during their ligation that the deceased, who was the son of wealthy parents, concealed substantial assets from her before and during their matrimonial ligation. Although W.W.’s mother and the deceased separated in 1999, their litigation continued until 2010 at which point it was finally settled.

10In a financial statement sworn April 6, 2010, the deceased swore he had an annual income of $24,000, assets of $86,000 and a negative net worth of $188,000.

11In Minutes of Settlement executed January 21, 2011, and despite his alleged lack of assets, the deceased agreed to pay W.W.’s mother the sum of $308,000 on account of all past and future child and spousal support claims. There has never been any explanation as to how the deceased paid the $308,000 given the contents of his financial statement sworn on April 6, 2010. W.W. did not receive any amount of the lump sum payment made to her mother or any life insurance proceeds from her mother following her father’s death.

12Following the death of her father W.W. requested that she be permitted to view a copy of his will but Y.Y. refused.

13W.W. retained counsel and wrote to Y.Y. requesting a copy of the will. Counsel for Y.Y. refused to produce a copy of the will but advised that he had been retained by Y.Y. to make application to probate the will. He represented that he would provide W.W. with a copy of the probate application when completed.

14Despite these promises Y.Y. did not file a probate application. W.W.’s lawyer followed up on at least four separate occasions in 2014, but to no avail. By January 2015, more than 12 months after Y.Y. represented that she would apply to probate the will, she still had not done so. Accordingly, W.W. prepared a Notice of Motion dated January 13, 2015, which was returnable on March 31, 2015, in which she moved for an order for production of the will and for an order requiring Y.Y. to make the probate application.

15In her affidavit sworn March 10, 2015 in response to W.W.motion Y.Y. deposed that it was not until recently that she had instructed her solicitor to commence an application to be appointed estate trustee despite her assertions throughout 2014 that she was working on the application. Her reasoning was that she had only recently become aware of certain assets that required a certificate of appointment of estate trustee in order to be transferred. W.W. was concerned therefore that there would never have been an application for probate had those “certain assets” not been discovered.

16W.W.position is that once she received a copy of the will it was clear to her why Y.Y. had taken so long to produce it. The nature and wording of the will is problematic. Not only was W.W. concerned that her father, an experienced lawyer, would prepare a holograph will but she was particularly concerned about the manner in which she and her brother were referred to in the will as set out below:

I have equally considered my two children and leave them absolutely nothing. Z.Z. is entirely without morality and who ʽdid not knowʼ if she could tell the truth in a Court. She is less a person than her mother. G-d help anyone who ends up with her. Robert is the child of rape: of me, to extort to get impregnated is simply an act of rape. May a fire cleanse the world of this pollution and evil.

17On August 13, 2013, Vallee J. granted an order sealing the will. She found that it was in the best interests of the children that the will be sealed.

Issue One – Does the Applicant have a Financial Interest in the Estate?

18W.W. argues that she has a financial interest in the estate and is thus entitled to move for relief under Rule 75.06. As the rules do not define the term “financial interest” she submits that as the daughter of the deceased, she would be entitled to a share of the estate on intestacy.

19Y.Y. submits that there is insufficient material for the court to proceed under Rule 75.06. There are no materials demonstrating that the deceased was not competent to make a will. Further, the deceased was estranged from his children and stated clearly why he chose not to make financial provisions for them in his will. As such, W.W. has no financial interest in the estate as there is insufficient evidence to ground an intestacy.

Ruling on Issue One

20It would be inappropriate at this stage to determine that W.W. has no financial interest in the estate. As will be detailed below, several important issues have been raised by her counsel. Any one of them, if proven, could shift the burden of proof to Y.Y. and change the landscape of this application.

21Not only is the term “financial interest” not defined in the Rules but the threshold at this point in the litigation is a low one. In this court’s view, there is sufficient evidence to necessitate the involvement of the court given the possibility of an intestacy. The rules do not require that W.W. have a financial interest at the time of moving for directions. Indeed, such a requirement would mean that many applicants would be precluded from proceeding. The fact that she may have a financial interest in the event that the court makes certain findings in her favour is sufficient at this stage in my view.

Issue Two – Is there Evidence of Suspicious Circumstances?

22W.W. relies on the case of Ostrander v. Black.¹ That case sets out the three categories in which suspicious circumstances may arise;

(a) Circumstances surrounding the preparation of the will;

(b) Circumstances calling into question the capacity of the testator; or

(c) Circumstances showing that the free will of the testator was overbourne by coercion or fraud.²

23It is not for the court to decide at this stage whether there are any suspicious circumstances, only whether there is some evidence that would support a trial judge’s finding of suspicious circumstances. Once such a finding is made by the trial judge, the burden would shift to Y.Y. to prove capacity.

24W.W. raises several issues which she submits may lead a court to find the existence of suspicious circumstances.

(a) The wording of the relevant portion of the will is, of course, concerning. Its vitriol calls into question whether the deceased was rational when he executed it and what circumstances would have lead him to direct such hatred towards his children.

(b) In an email dated January 5, 2011, (only three months before the date of the will), the deceased told his family law lawyer that one of the most important issues for him in the settlement of his family law file (with the mother of W.W.) was reuniting with his children. To then write a will which is clearly contrary to such a wish is concerning.

(c) There are psychiatric and cognitive impairment issues to be addressed. In an affidavit filed in his family law proceeding dated September 9, 2010, the deceased deposed that his then fiancé, Y.Y. helped him with the affidavit because his cancer and brain surgery left him dizzy, tired and nauseous. Further, he deposed he was unable to think logically at times and his memory was affected. In the same affidavit, the deceased refers to not wanting to “alarm” his daughter about his cancer.

(d) The deceased was an experienced lawyer. He knew many other lawyers. The fact that he wrote his own will could be seen as unusual.

(e) W.W. retained Dr. Kenneth Shulman who prepared a letter dated March 24, 2016. After reviewing the documentation that was available to him, Dr. Shulman had a concern about the deceased’s testamentary capacity. He indicated he required all available psychiatric and medical records available for the relevant periods in order to better address the issue of his “surprising and disturbing holograph will.”

(f) In February 2011, the deceased’s neurologist, Dr. Perry suggested a neuropsychological assessment be done on the deceased. There is no evidence that such an assessment was ever done.

(g) Affidavits sworn by the deceased in his family law proceeding make it clear that Y.Y. was helping him with his affidavits. There may be allegations of undue influence given that Y.Y. deposed in her affidavit sworn September 18, 2015, that she was aware of her husband’s will and questioned him as to why it was written by hand. If undue influence can be shown, the onus shifts to Y.Y. as the propounder of the will.

(h) The offending portions of the will are disconcerting and may offend public policy. With respect to the references to W.W., she deposed that the portion of the will referring to her not telling the truth in court is inaccurate. In fact, she refused to swear an affidavit which was critical of her mother despite being pressed by her father. With respect to her brother, the fact of disinheriting him because he was the child of rape is beyond comprehension. The deceased claimed that he was forced to impregnate his former wife or she would have left him. He therefore considered their son to be a child of rape. None of this is the son’s fault. Disinheriting him for such a reason is illogical at best.

25Y.Y. submits there is insufficient evidence of suspicious circumstances and objects to the court proceeding by way of any directions.

26Y.Y. points to a number of issues which would support her contention that her deceased husband had capacity at the time of executing his will and that the contents of it as they relate to his children are unfortunate and even extreme but, sadly, true.

27Specifically, Y.Y. relies on the following;

(a) The deceased entered into Minutes of Settlement on January 7, 2011 with independent legal advice. The Minutes speak to each side having capacity. The will was written within three months of that agreement.

(b) Y.Y. refers to the notes of Dr. Perry and Dr. Chan. Specifically a note of Dr. Perry dated February 2, 2011, which stated that the deceased’s presentation was “consistent with his pre-existing personality and behaviour.”

(c) Y.Y.’s counsel made reference to several other medical notes starting in June 2010 through to August, 2011 which were normal examinations. In particular, Y.Y. relies on Dr. Perry’s note of April 20, 2011, (four days before the will was written) in which the deceased is noted as having an excellent MRI with no new neurological symptoms. Y.Y. submits that the doctors’ contemporaneous notes should be given more weight than Dr. Shulman’s letter which simply says that more information is needed.

(d) W.W.’s affidavit sworn July 6, 2015 is clear that she had tried to contact her father but he did not respond. They had not had any form of relationship for five years prior to the date of his will.

(e) The January 2011 Minutes of Settlement required that the deceased pay to his former spouse a lump sum of $308,000 representing all child and spousal support payments owing to her. Therefore, Y.Y. argues that the deceased did make financial provision for his children. If their mother chose not to give any portion of the settlement to them, that is not a concern for this court.

(f) The fact that the deceased wrote a holograph will, which is a valid will in Ontario, is insufficient to raise an issue of suspicious circumstances.

(g) While the words in the will are unkind and eccentric, they do not offend public policy.

Ruling on Issue Two

28Y.Y. relies on the case of Jafari v. Ali Attar-Jafari.³ In that case, the court dismissed an application under Rule 75.06(1) for an Order for Directions on the grounds that the moving party made mere assertions as to an interest in the estate and did not present sufficient evidence to establish a genuine interest in the estate.

29In that case, the applicant was the son of the deceased. His father, after suffering from a brain tumour for four years, left his entire estate to his wife. The applicant questioned his father’s cognitive abilities at the time of signing the will and claimed his father was unduly influenced by the beneficiary.

30While the case has some similarities, I agree with W.W.’s counsel that it can be distinguished. It is true that the court must act as a form of gatekeeper to ensure that groundless claims based on undue influence or suspicious circumstances are not used to dissipate an estate’s assets. However, in Jafari, the deceased had a lawyer prepare his will. That lawyer’s opinion was that the deceased understood the nature and effect of the will and was not influenced by the respondent. Further, the evidence of the deceased’s family doctor was that his mental and testamentary capacity remained intact until his last attendance. In short, the court found that the son’s mere assertions were grounded only in the fact that he was the deceased’s son and not much more.

31The case at bar is quite different. I accept that all of the issues raised by W.W. are sufficient to give this court concern. In this court’s view, any one of those issues could lead a trial judge to make a finding of suspicious circumstances if the evidence currently available, and the further evidence to be made available, are accepted by the trial judge as sufficient for such a finding.

32The issues raised by Y.Y. are not to be ignored as a reasonable defence to W.W.’s assertions. However, read in light of the issues raised by W.W., they are insufficient to prevent this matter from moving forward to be further scrutinized by the court.

33In short, the evidence required for W.W. to move forward need not be conclusive but need only support an inference. As per Smith v. Vance⁴ I find that the evidence produced by W.W. is capable of supporting an inference that her claims raise a genuine issue which should be heard by this court.⁵

34Finally, there is one further issue that bears mentioning. Y.Y. submits that the value of the estate is less than $200,000. If that is the case, and the entire estate would be hers on an intestacy in any event, why is she contesting this application? The answer to that question was never really made clear to this court and gives some credence to the contention of W.W. that the estate is worth more than Y.Y.’s estimate.

Issue Three – Appointment of an Estate Trustee during Litigation

35Y.Y. does not strenuously dispute that an Estate Trustee During Litigation (ETDL) should be appointed in the event that this court permits W.W. to move forward.

36The issue is really one of cost. W.W. has provided correspondence from Mr. Daniel Weisz of Collins Barrow dated April 8, 2016. The letter sets out the proposed terms of engagement of Mr. Weisz to act as ETDL for the estate.

37Y.Y. points out that Mr. Weisz bills at $525 per hour and while it is true that there may be some as yet undiscovered assets of the estate, the known assets are valued at approximately $126,000.

38While the appointment seems necessary, some direction is required to ensure that it is conducted as cost efficiently as possible.

Orders

39Given all of the above, the draft Order for Directions shall issue.

40Paragraph 8 of the draft Order for Directions shall be amended to include a provision that once Mr. Weisz has billed a total of $10,000 inclusive of HST, there shall be a review to determine the cost efficiency of continuing with an Estate Trustee During Litigation. Considerations with respect to whether the services of an ETDL are required shall include whether or not further assets of the estate have been discovered during Mr. Weisz’s service.

Costs

41Given this result, the costs of the motion and the previous motion are payable by the Estate. If the parties cannot agree on a reasonable quantum of costs, they may provide written submissions of no more than two pages in length exclusive of any Bill of Costs or Offer to Settle, starting with W.W. on a seven day turnaround commencing seven days after the release of this decision.

Footnotes

1. 1[1966] O.J. No. 1372.
2. 2Ibid at para 36.
3. 32008 CanLII 37212 (ON SC).
4. 4[1997] O.J. No. 6534 (ONSC – Div. Ct.)
5. 5Supra, at paras 10 and 11.