Sweetnam v. Lesage, 2016 ONSC 4058

Sweetnam v. Lesage, 2016 ONSC 4058

CITATION: Sweetnam v. Lesage, 2016 ONSC 4058

COURT FILE NO.: 2192/11

DATE: 2016-06-20

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

STAR SWEETNAM Plaintiff

– and –

DIANNE LESAGE and TERRY DOOLEY, in their capacities as estate trustees of the Estate of Martin Arthur Williamson Defendants

COUNSEL:

Gregory M. Sidlofsky and Brendan Donovan, for the Plaintiff, Star Sweetnam

Ian M. Hull and Doreen Lok Yin So, for the Defendant, Dianne Lesage

Mark Penfold, for the Defendant, Terry Dooley

HEARD: April 4, 5, 6, 7, 8, 11, 12, 13, 14, 15 & 26, 2016

REASONS FOR JUDGMENT

gray j.

1Martin Arthur Williamson was a successful businessman. By the time of his death on December 24, 2010, he had accumulated a number of properties, and ran two businesses. On his death, his estate was worth approximately $7.5 million.

2For over 30 years, Mr. Williamson was married to Josephine Williamson. For the last seven years of his life, they were separated. They never divorced. They had one child, a daughter Star, who is the plaintiff in these proceedings. Star has two children, Briana and Sophia. They are Mr. Williamson’s only grandchildren.

3After the separation of Mr. Williamson and Josephine, Mr. Williamson lived with his common-law partner, Grazyna (Grace) Pater.

4Mr. Williamson suffered a seizure on July 20, 2010. Approximately five months later he died, on December 24, 2010. He had a brain tumour.

5Shortly after his seizure, Mr. Williamson made two wills, one on August 16, 2010 and one on September 8, 2010. In those wills, he left his daughter Star nothing. He named the defendants in this proceeding, Dianne Lesage and Terry Dooley, as his executors. In the first will, he left the bulk of his estate to Grace. In the second will, he left the bulk of his estate to a number of friends.

6The terms of both wills will be the subject of considerable discussion and analysis. For the sake of certainty and completeness, the will dated August 16, 2010 is attached to these Reasons as Appendix “A”, and the will dated September 8, 2010 is attached as Appendix “B”.

7The issues in this proceeding are:

a) Whether both wills, or either of them, are invalid on the ground that Mr. Williamson lacked testamentary capacity;

b) Whether both wills, or either of them, are invalid because they were procured by undue influence exercised by Ms. Lesage or Mr. Dooley or both;

c) Whether Star has a claim against Mr. Williamson’s estate based on proprietary estoppel; and

d) Whether Star has a claim as a “dependant” under the Succession Law Reform Act.

8In her statement of claim, Star advanced claims based on unjust enrichment and quantum meruit, but these were not pursued at the trial.

Procedural History

9As noted, Martin Williamson died on December 24, 2010. He had named Dianne Lesage and Terry Dooley as his executors in his most recent will.

10On January 26, 2011, a Certificate of Appointment of Estate Trustee with a Will was granted to Dianne Lesage and Terry Dooley, with respect to the will of Mr. Williamson purportedly made on September 8, 2010.

11On February 11, 2011, an order of this court was signed by Justice Goodman requiring Dianne Lesage and Terry Dooley to return the Certificate of Appointment to the court until the validity of the testamentary instrument for which the Certificate was issued was determined. I assume the order was issued pursuant to rule 75.05.

12Upon application under rule 75.06 for directions, it was ordered on consent that issues be tried, documents be produced, solicitor and client privilege be waived, and Terry Dooley be appointed the Estate Trustee during litigation of the estate of Mr. Williamson. A formal certificate was issued to Terry Dooley in that respect, dated June 8, 2011.

13The order for directions was amended subsequently on two occasions. Some refinement of the issues to be determined was ordered, and the parties were directed to serve and file pleadings.

14Ultimately, examinations for discovery were conducted, productions were exchanged, and the issues I identified earlier were tried before me.

Background

15Star Sweetnam is now 43 years of age. She is married to Michael Sweetnam. It is her second marriage.

16Star has two children by her first husband, Mark Frew. They were married in 1997, and separated in 2003.

17Star is not employed. She has only a high school education.

18Star testified that she was very close to both her parents. She travelled with them, and spent time with them at their family cottage. Of some significance, she was involved at an early age in her father’s business.

19Martin Williamson ran two main businesses – Provincial Papers, which was involved in the manufacture of packaging materials; and Star Packaging, which sold packaging equipment. At this point, it is not necessary to go into the actual corporate structure of the businesses, and the actual shareholdings held by Mr. Williamson and Josephine.

20Star Packaging was actually named after Star.

21Star testified that when she was younger, she worked in the family business during the summers. She worked in the warehouse, she did filing, and she worked in accounts receivable.

22Star testified that her mother, Josephine, worked in accounts receivable, and when Star was born she worked part-time.

23Star testified that it was always understood that she would inherit the business and run it. She testified that her father made that very clear from an early age. She was told “one day this will all be yours”, and “You’re going to be an heiress”.

24Star testified that her father felt strongly enough about this that he discouraged Star from attending university. He told Star that it had not been necessary for him to attend university, and he was very successful, so Star herself should not find it necessary to attend university as she would inherit the business in any event.

25Star testified that she idolized her father, and she did her best to live up to his expectations.

26Star testified that after she graduated from high school, she commenced working full time in the business. She worked in many different positions – in the warehouse; in accounts receivable; in accounts payable; in purchasing; as a receptionist; in the service department; in customer service; and in outside sales. Star testified that she lived at home, and therefore spent a lot of time with her parents, both at work and elsewhere.

27Star married Mark Frew on November 22, 1997. Mark lived near London, Ontario and Star moved there to be with him. At the time, Mark earned approximately $300,000 per year as a broker. Star testified that she worked for her father in the business until she had her first child in March, 1999. While she was not on the payroll, she was furnished a company car.

28Star’s parents lived in Toronto. Mr. Williamson wanted Star and Mark to move to Toronto, and he offered help in doing so. Mr. Williamson gave the couple $400,000 in order to assist in purchasing a home. Mr. Williamson picked out a home for them, which was five doors away from the home occupied by Martin and Josephine.

29Mr. Williamson also offered a job to Mark, which Mark accepted. Mark took a drastic cut in pay, and earned only $30,000 per year. They moved to Toronto in May, 1999.

30Star testified that she became a stay-at-home mother. She spent lots of time with her parents. In particular, her father adored his grandchildren.

31Star testified that her parents’ relationship took a turn for the worse in January, 2003. Martin had an affair with someone through his work, and he told Josephine that he would be moving out. The person with whom Martin had an affair turned out to be Grazyna (Grace) Pater. I will have more to say about her later.

32Star testified that the breakup of her parents’ marriage was difficult for her. She said her father would come over to her house for dinner very often. He seemed lost. They had many long talks.

33In May, 2003, Star’s own marriage fell apart. At that time, her children were four years and one year old, respectively. After the breakup, Mark left her father’s business.

34After the breakup of her marriage, Star moved to her mother’s house. Finances were tight, and she had very little money of her own. All she had was a company car. She testified that her mother paid all the bills. Martin provided some spousal support to Josephine.

35Star lived with her mother for six years, until she married her current husband, Michael Sweetnam.

36As noted earlier, Mr. Williamson lived with Grace Pater after he separated from Josephine. Star testified that her own relationship with Grace was difficult in the beginning. From her perspective, Grace had hurt her mother. However, ultimately she realized that she had to have a relationship with Grace if she wanted to have a relationship with her father.

37Star testified that during the first year after the separation from Josephine, she did not see Mr. Williamson very much. Ultimately, though, she took steps to have a closer relationship. At her initiative, she would meet her father at a Yorkdale restaurant every two weeks. Furthermore, she would arrange as many lunches as she could with him.

38Star testified that she tried to develop a relationship with Grace. However, her father told her that Grace did not want to get to know Star.

39After a few years, Star asked her father if she could return to work. Mr. Williamson told her that the situation involving Josephine was not particularly good, and it would be preferable if Star could work instead for one of his competitors. Thus, in 2006 or 2007, Mr. Williamson arranged for her to work for CanPaco. She worked there in outside sales for about two years. She said her father was proud of her, and she would continue to have lunch with him every couple of weeks.

40Star testified that Grace did not attend the lunches and dinners she had with her father. She said she told her father that she was hurt, and that she did not want to be involved in his matrimonial situation. Her father had felt that she was siding with her mother, but she assured her father that that was not true.

41Star and Michael Sweetman were married in August, 2008. The ceremony was at Josephine’s residence, the former matrimonial home. Mr. Williamson wanted the ceremony to be somewhere else, and offered to pay for it. There would be an obvious issue as to whether Grace could come to the matrimonial home for the ceremony.

42Star took the position that Grace should not come to the matrimonial home for the ceremony. Martin got angry and ultimately he did not go the wedding himself. Star testified that she was shocked and hurt.

43Star testified that she had a very bad accident in Montreal. She fell down 60 steps. Following the accident, she has suffered a great deal of pain. Some of the discs in her neck have degenerated, and she has cracked vertebrae. She has had surgery in Europe, which cost a good deal of money. She has additional pain when she is driving or lifting. The pain is chronic. She often wears a neck brace and she is unable to work.

44Her mother provided a mortgage for her house, and has paid for groceries and the children’s clothes. She has given her money to help support herself.

45Star’s husband, Michael, is a manager of a company. He was laid off three months before they got married, and was only employed again in the spring of 2009. He has had other periods of unemployment, but has been employed since August, 2015.

46Star testified that not long after she and Michael got married, they had her father and Grace over for dinner. Grace said very little during the dinner. Her father appeared worried about the financial situation of Michael and Star.

47After that, Star and her father would speak to each other at least once a week. She testified that her father called her in January or February, 2009. Her father offered to give them a home that he and Josephine owned in Kleinburg. Star said she declined, because she did not want to move the children. Her father also offered Michael a job. Michael declined.

48Star testified that she and her father continued to meet at restaurants.

49In March, 2009, her father took his grandchildren for dinner. He had discussed getting Sophia a cellphone. Star said he should not do so. Notwithstanding, Martin bought Sophia a cellphone. Star was annoyed, and told her father he should respect her wishes. Her father was upset and accused her of being selfish. For a time, they kept their distance but she called him in June or July, 2009, after which life went on as usual. She and her father would have lunches, he would see the children and he gave them gifts.

50Star testified that her parents’ matrimonial situation was tumultuous. It was often the topic of discussion between her and her father. Her father took the position that Josephine was out to destroy him. He would get very angry at Josephine. Star herself took the position that she did not want to get involved.

51Star testified that in August, 2010, she received a telephone call from her father, who was in Labrador. Martin advised her that he had had a brain tumour and had had a seizure. Star was in shock, and was upset that he had gone to Labrador after having a seizure. She called Michael and told him the situation. It was very emotional.

52Star testified that her father returned from Labrador on or about August 10, 2010. She and Michael went to see him at his house in Burlington. She said he was frail and wobbly, and could not walk without assistance. He had difficulty lifting a fork to his mouth. He needed help to go to the bathroom.

53Outside the house, Martin shared the situation with them. He was very worried. He did not know which medicine he was taking or for what condition it was. Michael’s first wife had died of a brain tumour, and he gave him some advice.

54Star testified that Dianne Lesage and her husband Rick turned up. She testified that Dianne said “Why are you crying? – you don’t care about him.” Star said she was shocked.

55Star testified that she, Michael and the children returned to the house the next day. They went to see Martin practically every day through August and September. They also spoke on the telephone often.

56Star testified that she and her father discussed many things. Martin told her that he loved her and was proud of her, and that she was a great mother. However, he thought she sided with Josephine in the matrimonial dispute. She said they worked through it.

57Star testified that if Josephine’s name was mentioned, he would get into a rage. He would start calling her “Jo” and telling her “It’s all your fault”. Sometimes she was able to calm him down. However, this eventually got worse, to the point where he did not want to speak to her anymore.

58Star visited Martin in the hospital after he went there. She discovered that he sometimes behaved in strange ways. He said the nurses love washing his hairy balls. She found this embarrassing. She told the nurses that this was not in Martin’s normal character.

59After being in the hospital in October, 2010, Martin called her from his home and berated her. He said “I never should have married you.” He was abusive.

60Michael called Martin and told him that he could not speak to Star that way. Martin said “I’ll speak whatever way I want.” Star testified that there was no threat made by Michael.

61Star testified that during one discussion with Martin, he reminisced about a trip she had supposedly taken with Martin to Bhutan. Star was never on a trip to Bhutan with Martin. Martin did go on a trip to Bhutan with Josephine.

62On one occasion Martin became enraged and accused her of freezing his assets. He said “How could you do this to me?” She said he was screaming at her as if she was Josephine.

63Star said she asked her mother about this. Josephine told her that she had not done anything to freeze Martin’s assets.

64Star testified that she asked Martin why Dianne and Rick were cold to her. She said Martin told her “Dianne thinks you’re after the money”. On one occasion in August, Star took the children to see Martin. On the way there, she told them Martin had been sick, in order to prepare them. Sophia said to her “who will look after the dogs?” Star said she related this story to her father. Dianne, who was present, said the story was distasteful, and asked why Star had brought the children anyway. Star testified that her father picked up on this and agreed with Dianne. She said that at dinner, Dianne and Rick ignored them, and ultimately her father did too.

65Star testified that her father was in hospital during part of September, 2010. Before that, she visited her father all the time, and they had wonderful talks. She said her father asked what she wanted to see in the will. They discussed Provincial Paper, and it was assumed that it would be hers. She assured her father that she was strong enough.

66Star testified that her father told her that he had been seeing a women in Quebec, and he told her he wanted Star to promise that this woman could keep a house that he had bought for her.

67Star testified that after Martin went to the hospital, she visited him every day or at least every other day. Ultimately, he raised the subject of her mother all the time, and he became angry and abusive. He told her that he did not want to see her anymore.

68Star elaborated on the incident in mid-October involving Michael and her father. She said her father called from the hospital. He blamed her for his being in the hospital, and for the reluctance of the nurses to discharge him. He was screaming and was angry. He called several times.

69After Michael got home, he took the telephone during one of Martin’s calls. He said “You can’t speak to her this way.” Martin responded “I’ll speak to her anyway I want.”

70Star testified that the next day Grace told her that Martin did not want to talk to her anymore. Star said she decided to give her father some time. She kept trying to call him for a while, but could not speak to him.

71Star testified as to her knowledge about her father’s relationship with Dianne Lesage. She testified that her father had told her that Dianne was a supplier to Provincial Paper. He said she was a business associate. He said her husband Rick was weak, but that Dianne was a “ballbuster”.

72Star testified that one night no one would answer the phone at the hospital. She and Michael went to the hospital, but her father was not there. She called Grace, who said “I’m not supposed to talk to you”, but did tell her that her father was at Joseph Brant Hospital and was not well.

73Star and Michael went to Joseph Brant Hospital, where they saw Dianne and Rick. She said Dianne was shocked that they were there. Dianne said Michael had threatened Martin’s life, and had to leave. Star had to put on clean clothes in order to see her father.

74Star testified that she returned the next morning, early. She asked Dianne if she could have a few minutes with her father. Dianne said no. After some confrontation, she was allowed to see her father for a few minutes while the door was open. She said she lay on the bed beside her father, and he died four hours later.

75Star testified that when she attended the funeral for her father, it was as if she was not there. Someone did a eulogy, but neither she nor her mother were mentioned or acknowledged.

76Star testified that her father was cremated, and when she asked for the remains she was told no. She testified that she does not know where her father is buried.

77Star testified that after her father’s will became public, Michael picked up a copy from the courthouse. She had never seen it before. She received correspondence from Dianne Lesage and Terry Dooley, and Linda Zanardo, a lawyer, indicating that she was the beneficiary of an RCA with a value of $550,000, and that her father had excluded her from any additional entitlement to his estate. She was in shock and disbelief.

78In her evidence, Star discussed the two wills that had been executed by her father in August and September, 2010. She had never seen them before he died.

79With respect to the will executed in August, she noted that there was a legacy to Yvonne Butler, who was described as her father’s “secretary”. Star testified that, in fact, Ms. Butler was Martin’s right hand person in running the company. She was the second in command.

80Star noted that she is described as “Star Williamson” in the will. She said she had not used the name “Williamson” since 2003.

81Star also noted that Martin had misspelled the name of one of his grandchildren. In the will, it is spelled “Brianna”, instead of its correct spelling “Briana”.

82Star discussed the will made in September, 2010, a copy of which Michael got from the courthouse. Like the first will, Star did not know it had been prepared.

83In addition to the issues identified in the first will, Star noted some additional matters.

84In the second will, the residue of the estate is left to a number of people. One of them, Dianne’s husband, is named as “Rick Radeany”. The actual spelling of his name is “Radvany”. Another residuary beneficiary is Cathy Kuch. She is her mother’s first cousin, and is the wife of a fishing buddy of Martin’s. Another residuary beneficiary is Lorne Yurichuk, who is a fishing buddy. Another residuary beneficiary is David Joy, who is a fishing buddy. The other two residuary beneficiaries are said to be Silvie LeBanc and Jose LeBanc. Their names are actually “LeBlanc”, and they are the daughters of the woman in Quebec with whom Martin had a relationship. It is doubtful that he actually knew the daughters.

85Star testified that, as noted earlier, she is not employed and she is unable to work because of her chronic pain, which was caused by her accident and her surgeries. Her only income is through the child support that she receives from Mark Frew, and from whatever contributions she gets from her mother. She has borrowed $1.2 million from her mother, and she has used some of the money from the RCA. She took $39,000 per year from it.

86Star testified that the two top discs in her neck are made of titanium. Surgery on her neck was done in Germany, which cost US$30,000. Her mother paid for it. She needs to have a caregiver every day.

87Star testified that her child support will soon go from $7,000 per month to $3,400 per month. Since 2010, her mother has furnished $2,000 per month, plus money for groceries and clothes. This was paid out of the spousal support that her mother received from Martin.

88On cross-examination, Star acknowledged that it would appear from various court documents that while her father’s assets were not actually frozen, steps were contemplated, if not actually taken, to freeze his assets.

89Star was shown an email from Terry Dooley to Steven Grant that suggested that Martin was getting bombarded with phone calls and emails from Josephine and Star. She denied that she had bombarded Martin with phone calls and emails.

90Star acknowledged that her mother had sent Martin a personal letter dated August 26, 2010, in which Josephine had urged to Martin to include Star in his will. Star testified that by sending such a letter, her mother was making matters worse. Star did not want her mother to interfere. She did not know at the time that ultimately there was an agreement in the matrimonial settlement that Star would receive the benefit of an RCA worth $550,000.

91Star acknowledged a DVD of a message conveyed to her by Martin, dated October 7, 2010. In the message, Martin urges his daughter to be a strong woman. I pause at this point to note that while Mr. Sidlofsky asserted that Star’s voice could be heard in the background of the message, there was no actual evidence given that that was so, certainly not through any evidence given by Star.

92Star testified that her husband, Michael, earns approximately $3,000 per month. She denied that Michael, during the telephone conversation with Martin alluded to earlier, had threatened to hit Martin in the face.

93Star acknowledged that when her house was sold, the “gift” of $400,000 that her father had contributed to the purchase was returned to Martin. The money was never returned to her.

94Star acknowledged that in 2015, she took a trip to the Dominican Republic. She said her mother had rented a house there, and she went there to get rest. She acknowledged that she had sought an adjournment of the trial, but took the position that she was not in a position to do the trial at that point.

95On cross-examination by Mr. Penfold, Star acknowledged that Terry Dooley had been her father’s accountant. She testified that she had never met him, and did not know what role he played in preparing her father’s wills.

96Star acknowledged that her father was very upset when Star refused to allow Grace to come to the wedding.

97Star acknowledged that when she discussed the possibility of a will with her father, in addition to discussing the woman in Quebec he also said he would give $30,000 to Terry Dooley for his dock, and that Star had acknowledged that this was all right.

98Michael Sweetnam, Star’s husband, testified.

99Mr. Sweetnam is now employed, as of August, 2015. He has a daughter by his former wife, who died of brain cancer.

100Mr. Sweetnam testified that he met Martin the day after he was engaged to Star.

101Mr. Sweetnam testified that in August, 2010, he was on a business trip in Prince Edward Island. Star called him and told him about her father’s brain tumour. Mr. Sweetnam understood the situation, because his former wife had died of brain cancer. He testified that after his return from Prince Edward Island, he and Star visited Martin at his home. It was an emotional visit. Martin asked him about his experience with his former wife’s illness. Mr. Sweetnam tried to be as thoughtful about the issue as he could.

102Mr. Sweetnam confirmed Star’s evidence to the effect that her father sometimes spoke to her as if she were Josephine. In particular, he recalled the incident during which Martin was in a rage, and said to Star “Josie you have to call your lawyers off – you’ve frozen all my assets.” It was clear that Martin thought Josephine was in front of him when he was speaking to Star.

103Mr. Sweetnam confirmed that there were discussions in August and September, 2010, with respect to Star taking over Provincial.

104Mr. Sweetnam testified that he and Star had told the children that Star’s father was ill, and might be dying. He testified that Sophia had asked who would take care of the dogs. Star related the story to her father. Ms. Lesage took offence.

105Mr. Sweetnam testified that in mid-October, 2010, he came home from work one day to find Star in tears. Her father had been calling her all day and screaming at her. While he was there, her father called again. Mr. Sweetnam took the phone and told Martin that he was being abusive, and that he could not talk to his daughter that way. Mr. Sweetnam testified that Martin screamed at him and hung up the phone.

106Mr. Sweetnam testified that he was under the impression that Martin was blaming Star for having to stay in the hospital a few extra days. He testified that he did not say that he would strike Martin, and he did not threaten him.

107Mr. Sweetnam testified that on December 23, 2010, he and Star drove to Martin’s house. The lights were off. They called Grace, who told them that she was not supposed to talk to them, but indicated that Martin was at Joseph Brant Hospital.

108He testified that they went to the hospital and went to Martin’s room. Ms. Lesage came out of the room and told them that Mr. Sweetnam would not be allowed to see Martin, and that Star could only go in the room if she had on a hospital gown. Star did go in the room and saw her father.

109Mr. Sweetnam testified that he asked Ms. Lesage if he could have her cellphone number. Ms. Lesage said no – “you told Martin you’d punch his fucking brains out.” Mr. Sweetnam testified that he told Ms. Lesage that his wife had died of a brain tumour, and said “Do you think I’d say that?”

110The next day, he and Star went again to the hospital and he waited in the car while Star went up to Martin’s room. Star was very upset when she returned.

111Mr. Sweetnam testified that he was able to obtain a copy of the will when he went to the courthouse to get one. He said no one had offered to send a copy to them.

112Mr. Sweetnam testified that at Martin’s funeral, Rick Radvany gave a eulogy. At no time did he mention Star or Martin’s grandchildren.

113Josephine Williamson testified. She is Star’s mother. She was married to Martin in 1972. They separated in January, 2003. They were never divorced.

114Ms. Williamson testified that she was involved in the business. She was a shareholder in one or more of the companies. She worked in the business for a number of years.

115Ms. Williamson testified that her husband did not have a university degree, and did not see the need for Star to have one. Martin’s position was always that Star would eventually run the business, and thus she would not need to go to university. He always wanted to ensure that Star would have enough knowledge of the business that she could run it herself. This perception never changed.

116Ms. Williamson testified that after she and Martin separated, he provided support to her. This became somewhat contentious, and she and Martin were in court on occasion. Ultimately, an order was made that she be paid $11,000 per month in support. Ms. Williamson testified that she had no other source of income.

117Ms. Williamson testified that in the court proceedings, she had made it clear that some of the money she received in support from Martin was earmarked for Star. In the proceedings before the arbitrator, Mr. Bastedo, it was disclosed that she was providing $4,000 per month for Star. This was because Star was disabled and unable to work.

118Ms. Williamson identified and discussed a personal letter that she wrote to Martin dated August 26, 2010. She wrote the letter because Martin was sick and she was concerned.

119Ms. Williamson was asked about an email from Mr. Dooley dated September 7, 2010, in which it is suggested that Martin was getting bombarded with phone calls and emails from Josephine and Star. She denied telephoning Martin at any time, or sending him any emails.

120I pause at this point to note that no emails purporting to be from Josephine to Martin were produced in these proceedings. Two or three were produced from Star.

121Ms. Williamson testified that she and Martin socialized with Ms. Lesage on occasion. Ms. Lesage did not know Star.

122Ms. Williamson testified that she kept Star entirely out of the matrimonial situation with Martin, from 2003 until 2010. Star had no involvement in any of the negotiations.

123A separation agreement was finally signed on December 22, 2010, two days before Martin’s death.

124Ms. Williamson testified that Ms. Lesage telephoned her shortly after Martin’s death, and advised her that she did not want her or Star involved in Martin’s funeral.

125Ms. Williamson testified that she has had to assist Star in purchasing properties in which she has lived. The amounts have been significant.

126On cross-examination, Ms. Williamson testified that after the separation, she and Martin saw each other once per year for three years, over lunch. After that, they only saw each other in court.

127Ms. Williamson confirmed that pursuant to the deal negotiated by her lawyers, Star was to receive the benefit of an RCA worth $550,000.

128Rebecca Gibb testified. She has lived in Los Angeles for 20 years. She was in school with Star, and was one of her best friends.

129Ms. Gibb testified that she knew Martin when she was growing up. She attended many times at their cottage with Star.

130On many occasions, there was discussion about the family business. She testified that Martin said he was proud that he had to come to Canada with nothing and built the business from scratch. He maintained that the business would be all Star’s one day. He never wavered from this. He felt he was grooming her to run the business, and he wanted to teach her to do so. Ms. Gibb testified that she would visit Star when she was working at the business.

131Ms. Gibb testified that it was always Martin’s position that he felt he could teach Star more than she could learn at school. His position was that school would be a waste of time for her. This was never in question.

132Dr. Nathan Herrmann testified. He was proffered as an expert witness by Star’s counsel. There was no objection to his qualifications to give expert evidence.

133Dr. Herrmann is a well-known and well-respected psychiatrist. He is the head of the Division of Geriatric Psychiatry at Sunnybrook Health Sciences Centre, and is a professor in the Faculty of Medicine at the University of Toronto. He has an extensive curriculum vitae.

134Dr. Herrmann was retained to provide a retrospective testamentary capacity assessment for Martin Williamson.

135Dr. Herrmann took into account the wills signed by Martin Williamson in August and September, 2010, and two subsequent wills prepared in September and October 2010 that were not signed; notes and correspondence from the files of lawyers Victoria Crewe-Nelson and Linda Zanardo; transcripts of various examinations; letters from various doctors purporting to certify the mental capacity of Martin Williamson; various medical records and hospital records; and examinations for discovery of the parties.

136Dr. Herrmann’s specific instructions were to address Mr. Williamson’s medical condition at the time he gave instructions and executed the wills; address how his medical condition and medication could impact him; and give his opinion concerning Mr. Williamson’s testamentary capacity, assuming Star’s evidence is accepted.

137Dr. Herrmann’s report, dated January 14, 2014, is nine pages long and I will not review it in detail. I will mention its salient points.

138Dr. Herrmann noted that Mr. Williamson died on December 24, 2010 as a result of complications due to glioblastoma multiforme, which is a malignant form of brain cancer. He had a long standing history of insulin dependent diabetes mellitus as well as hypertension. Complications from his diabetes included right eye visual impairment. He also had had colon cancer but had been cancer-free since 2008.

139During Mr. Williamson’s admission to Joseph Brant Hospital between July 20 and July 24, 2010, Mr. Williamson had seizures controlled with diazepam and subsequently with phenytoin, (Dilantin). The cause of the seizures turned out to be a tumour.

140An MRI demonstrated a right parietal lobe enhancing lesion measuring 2.1x2.8x2.5cm, a small one centimetre enhancing cortical lesion in the right frontoparietal region, and a three millimetre enhancing lesion in the high right parietal subcortical white matter. He also noted that there were focal white matter changes adjacent to the left lateral ventricle posteriorly, consistent with microangiopathic disease or small lacunes.

141Mr. Williamson was treated with corticosteroids (Dexamethasone) to reduce brain swelling. On discharge, he was prescribed Dexamethasone (Decadron), Dilantin and two types of insulin.

142Dr. Herrmann noted that on August 19, 2010, Mr. Williamson scored 29 out of 30 on the Mini-Mental State Examination (“MMSE”) and 90 on the Karnofsky scale. His Dilantin and Dexamethasone had been significantly increased. A repeat MRI on August 25, 2010 demonstrated significant tumour growth. On August 26th, his Dilantin had been increased again and he appeared ataxic, raising the question of Dilantin toxicity.

143On September 14, 2010, Mr. Williamson’s Dilantin had been decreased, but the frequency of his Dexamethasone had been increased. There was a slight worsening of seizure symptoms as well as weakness on the left side of his body. He was not coping at home and was unable to ambulate on his own.

144By September 14, 2010, Mr. Williamson was also taking a drug called Ativan. He also had difficulty managing his blood sugars.

145Mr. Williamson’s diabetes included symptoms of diabetic retinopathy and chronic peripheral neuropathy. Thus, the microangiopathic disease and possible lacunes were likely due to long standing diabetes. The tumours in his right parietal and right frontal lobe caused the seizures and the sensory deficits on the left side of Mr. Williamson’s body.

146Dr. Herrmann noted that during Star’s examination for discovery she testified that Mr. Williamson had spoken to her as if he thought Star was her mother Josephine. He was speaking as if it was her mother he speaking to. He didn’t just call her by the wrong name, he would think he was sitting with Josephine and be raging at her. Dr. Herrmann noted that if this is accurate, it is a description of what is referred to as “Misidentification Syndrome.” This is a type of delusion where the person misidentifies a person in their environment as someone else.

147Dr. Herrmann noted that Star described her father accusing her of freezing his assets. If this were accurate, this would be an example of false fixed belief or a paranoid delusion.

148Dr. Herrmann noted that Star had described certain personality changes in her father, and sexually inappropriate behaviours. These could be described as hypomanic-type behaviours.

149Dr. Herrmann noted that there were descriptions of Mr. Williamson having short term memory difficulties and concentration impairment.

150In summary, Dr. Herrmann listed the pertinent neuropsychiatric symptoms described by Star as follows:

1. Misidentification syndrome;

2. Paranoid delusions;

3. Personality change including irritability, lability, and impulsiveness;

4. Sexually inappropriate behaviours suggestive of hypomanic-type behaviour;

5. Cognitive impairments including short-term memory difficulties and concentration impairment.

151Dr. Herrmann discussed the medical basis for these symptoms.

152With respect to cognitive impairment, Dr. Herrmann noted that Mr. Williamson had a long standing history of diabetes with complications. Diabetes is associated with a variety of impairments of cognition. The fact that Mr. Williamson scored 29 out of 30 on the MMSE does not preclude significant cognitive dysfunction. Other factors that could have contributed to cognitive difficulties include the right hemisphere tumours involving the parietal lobe and his frontal lobe. Particularly, frontal lobe damage interferes with a person’s judgment and insight.

153Medications may also have played a role in terms of cognitive abilities. Anti-convulsants including Dilantin are well known for causing cognitive impairment, and this would be particularly the case if Mr. Williamson was even mildly Dilantin toxic. Benzodiazepines, such as Ativan, are clearly associated with cognitive impairment in older individuals and are specifically considered inappropriate for older individuals.

154In summary, the cognitive impairments could be accounted for by diabetes, the brain tumours, and the medications Mr. Williamson was taking.

155With respect to personality changes and hypomanic-type behaviours, the irritability, labality, and personality change would be consistent with a frontal lobe tumour. Irritability and disinhibited behaviour are also encountered in patients treated with corticosteroids like Dexamethasone. The Dexamethasone could also contribute to the hypomanic and sexually disinhibited behaviours.

156With respect to the misidentification syndrome and paranoid delusions, Dr. Herrmann stated that a right parietal lobe tumour could have been responsible for causing the misidentification syndrome, which is frequently seen in patients with neurological diseases, particularly when the disease process affects the right hemisphere and in particular the right parietal lobe.

157In summary, Dr. Herrmann concluded that there were very clear medical explanations for the neuropsychiatric symptoms described by Star, including cognitive impairment, personality change, delusions (including misidentification syndrome and paranoid delusions) as well as hypomanic behaviours (sexually disinhibited behaviour).

158Dr. Herrmann observed that with respect to testamentary capacity, there were two particular factors that should be considered:

a) Whether Mr. Williamson was free of any disorder of the mind or delusions that could influence the disposition of his assets;

b) Concerns about potential beneficiaries who are excluded, specifically the presence of a delusion, overvalued idea, or cognitive impairment that could influence the distribution.

159Dr. Herrmann concluded that given Mr. Williamson’s medical conditions at the time of preparing and executing his wills in August and September, 2010, and assuming Star’s evidence is accepted, it is likely that he was suffering from a combination of cognitive impairment and delusions that would have impaired his testamentary capacity. He also noted that some assistance in this regard could be obtained from Ms. Crewe-Nelson’s notes from September 6, 2010, where she discussed Mr. Williamson’s diagnosis of brain tumours and seizures and minor short term memory loss. Mr. Williamson had difficulty naming his granddaughters and recalling his daughter’s married name. Ms. Crewe-Nelson mentioned that Mr. Williamson expressed a belief that the divorce settlement would be sufficient to meet his obligations to his daughter and her children. Star herself stated that Mr. Williamson appeared to believe that Star was his wife and/or that she was directly involved in freezing his assets. This could have led him to deciding to exclude her and her children from the wills.

160Dr. Herrmann expressed the view that Ms. Crewe-Nelson did not sufficiently rule out the possibility of a delusion affecting Mr. Williamson’s testamentary capacity with respect to his daughter. Similarly, Ms. Zanardo, who prepared the second will in September, paid even less attention to whether there was the presence of a delusion, relying on the wording of the previous will to exclude Star.

161Dr. Herrmann expressed the opinion, in his report, that Mr. Williamson lacked testamentary capacity at the time of preparing and executing his wills in August and September, 2010.

162In his viva voce testimony, Dr. Herrmann stated that he was assisted in his opinion by the fact that Mr. Williamson’s illness, from his diagnosis on July 20, 2010 to his death on December 24, 2010, had been very rapid indeed. His condition fluctuated from day to day but was on a rapid downward trend.

163Dr. Herrmann noted that after Mr. Williamson’s seizure on July 20, 2010, he was placed on Dilantin and anti-seizure medication. An MRI disclosed that he had a number of lesions in his brain and that there had been focal white matter changes. He was placed on steroids in order to reduce the pressure in his brain and the swelling. When he was discharged on July 24, 2010, his blood sugar levels were difficult to control, likely because steroids make control of blood sugars more difficult.

164Dr. Herrmann noted that Mr. Williamson was in an oncology clinic on August 19, 2010, only three days after he made his first will on August 16th. While he achieved a good score on the Mini Mental Exam, that test is not sensitive or specific. For example, it would not pick up the effects on executive functions that are affected by diabetes.

165Dr. Herrmann noted that a repeat MRI was done on August 25, 2010, which showed that the primary tumour had grown significantly in a very short period of time. His Dilantin dose was considered too high, and the dosage was reduced.

166On September 14, 2010, Mr. Williamson was seen by Dr. Whitton. Mr. Williamson’s seizure symptoms had worsened. He began taking Ativan. By early October, he was taking high doses of Ativan, which would be significant.

167The features that were particularly significant in affecting Dr. Herrmann’s opinion were the misidentification syndrome (Mr. Williamson spoke to Star as if she were Josephine); at least one paranoid delusion (Star was freezing his assets and trying to destroy him); personality changes; hypomanic behaviour (sexually inappropriate discussions); and cognitive impairment (short term memory difficulty, confusion and forgetfulness).

168These symptoms can be explained by Mr. Williamson’s diabetes, the tumours (particularly on the right side of the brain and in the frontal lobe, which can produce cognitive dysfunction, misidentification syndrome, and disinhibition and sexually inappropriate behaviour); and the medication, particularly Dilantin and Ativan. Ativan particularly can produce memory impairment.

169In combination, all of these features persuaded Dr. Herrmann to conclude that Mr. Williamson lacked the testamentary capacity to make both wills in August and September, 2010.

170Dr. Herrmann acknowledged that he had reviewed the report prepared by Dr. Shulman, the expert retained by the defendants. Dr. Shulman came to a different conclusion with respect to the testamentary capacity of Mr. Williamson. Of significance, Dr. Shulman did not have the benefit of Star’s evidence, and, in Dr. Herrmann’s view, he did not have enough background as to Mr. Williamson’s long history with diabetes.

171Dr. Herrmann commented more specifically on some of the medications that Mr. Williamson was taking.

172Dilantin is anti-seizure medication, and can affect memory and cognitive functions.

173Dexamethasone is a steroid that can cause depression and sexually inappropriate behaviour. Ativan is an anti-anxiety drug which can cause memory impairment. Prochlorazine is an anti-psychotic medication that can cause cognitive impairment and delirium.

174Dr. Herrmann testified that if Star’s evidence is not accepted by the court, he would not be able to say with certainty that Mr. Williamson lacked testamentary capacity. However, it is clear that Mr. Williamson had some cognitive impairment. Thus, he could not clearly say that Mr. Williamson had testamentary capacity.

175On cross-examination by Mr. Hull, Dr. Herrmann confirmed that he had not been given an audio recording of Mr. Williamson that was prepared on October 7, 2010.

176Dr. Herrmann agreed that testamentary capacity is situation specific.

177Dr. Herrmann acknowledged that in determining testamentary capacity, it is important to know whether there has been given a rationale for decisions made by the testator in making his will.

178On cross-examination by Mr. Penfold, Dr. Herrmann agreed that he was not aware of whether the issue of freezing Mr. Williamson’s assets had been discussed with Mr. Dooley, the accountant.

179Dr. Herrmann agreed that executive functions are those of a higher order, including, insight, judgment and abstract thinking. They would include matters such as the negotiation of a separation agreement and the sale of a business. Dr. Herrmann was not aware that Mr. Williamson had been performing these functions after he was diagnosed.

180Evette Wade testified.

181Ms. Wade has been a friend of Star’s for 31 years. She met Star’s parents when she was a teenager.

182Ms. Wade testified that she spent a lot of time with Star’s family at their home and at their cottage.

183Ms. Wade testified that Mr. Williamson’s business was the subject of discussion in her presence. It was often mentioned that Star would be working in the business. It was made very clear that she would be in the family business when it was time, and she made it clear that she wanted to do so.

184Ms. Wade testified that Martin Williamson made it clear that it would it be a mistake for Star to go to university. His position was that Star need not go because she will make more money working in the business.

185Mark Frew testified. He was married to Star in 1997, and lived with her until they separated in 2003. They had two children.

186Mr. Frew testified that he knew Martin Williamson very well for about six or seven years. He described him as a principled, good person.

187Mr. Frew testified that he came to work for Martin Williamson in 1999. To do so, he had to sell his “book” of business as a broker. He became the Controller of Martin’s business. He testified that Star worked in the business in accounts receivable, and continued to work in the business until her children were born.

188Mr. Frew testified that in discussions with Martin and Star it was very clear that it was intended that Star would end up with everything, including the businesses and Martin’s money. Martin’s position with Star was “this is going to be all yours one day.” This was discussed fairly often. It was understood that when the children were older, Star would return to work in the business.

189Mr. Frew testified that before joining Martin’s business, he was a vice-president with Midland Walwyn. He made a very good income of approximately $250,000 - $300,000 per year. When he became employed by Martin’s business, he earned approximately $55,000 per year. It was not an easy decision to move.

190Mr. Frew testified that the move worked out well. During the four years he worked there, he had an opportunity to learn the business so that he and Star could take it over some day.

191Mr. Frew described Martin Williamson as being very principled. He said you could put the word “standards” in the middle of his name. Mr. Frew described him as being stubborn, a good guy, having no temper, not being angry or one to raise his voice.

192Mr. Frew testified that Martin treated Star as one would expect he would treat his only daughter. He clearly loved her and loved his grandchildren. Mr. Frew was very surprised that Martin did not leave anything to his only daughter and his grandchildren. Mr. Frew believed that this was “off course” for him.

193Mr. Frew testified that he is providing child support of $7,500 per month.

194On cross-examination, Mr. Frew confirmed that he had last seen Mr. Williamson at least six or seven years prior to Mr. Williamson’s death. He testified that he paid spousal support for five years, in the amount of $3,000-5,000 per month. He worked for the Canadian Imperial Bank of Commerce after leaving Martin’s business.

195Anna Dmytruszko testified. She is Josephine’s sister.

196Ms. Dmystruszko testified that she was employed by Provincial Papers for 14 or 15 years. She was the bookkeeper for the business, and she reported directly to Martin. She started in the business in accounts receivable.

197During the last part of her employment in the business, she developed vertigo looking at a computer screen. In 1998, she had to retire.

198Ms. Dmystruszko testified that she had known Martin for a long time. She saw him at their mutual cottage practically every weekend.

199Ms. Dmystruszko testified that she and Martin ultimately had a modest falling out. He did not want her to retire when she did.

200Ms. Dmystruszko testified that Martin was very close to Star. He discussed Star with her often. It was very clear that Star was going to take over the business. To a degree, Ms. Dmystruszko was training her.

201Ms. Dmystruszko testified that Star wanted to go to school. Like Martin, she encouraged Star to not go to school. She would have the business, so what use was it to go to school?

202Ms. Dmystruszko testified that she spoke to Martin sometime in the fall of 2010. She had referred him to a friend who had brain cancer, but it was too late to get any helpful advice. Martin telephoned her to thank her for doing so.

203Ms. Dmystruszko testified that during the conversation, Martin unexpectedly started yelling at her. He demanded to know why her sister was trying to destroy him. She testified that he had never yelled at her before. For the period she knew him, he was a “happy guy”.

204On cross-examination by Mr. Hull, Ms. Dmystruszko confirmed that when Star worked in the business she started at the bottom.

205Dr. Alison Culbert testified. She is a family doctor, who has her practice at Sunnybrook Health Sciences Centre.

206Dr. Culbert testified that she has treated Star for chronic neck pain since August, 2010. Her neck pain started in 1996, and is now chronic.

207Dr. Culbert testified that Star had had two neck surgeries in Germany, one in 2011 and another in 2015. She has at least one artificial disc. She has massage therapy and physiotherapy.

208Dr. Culbert testified that she prescribes several medications for Star, namely opioids, anti-inflammatory drugs, and muscle relaxants.

209Dr. Culbert testified that while Star has some good days, she has many bad days. While she hopes for a gradual improvement, she still has neck pain.

210Dr. Culbert testified that Star took a trip to the Dominican Republic in March, 2015. This was something positive for Star, in that it was helpful from a post-operative point of view and was of benefit to her.

211On cross-examination, Dr. Culbert acknowledged that she is not an expert in neck pain. She acknowledged that Star can drive a vehicle, and some days she is up to doing ordinary tasks.

212Monique McColl testified.

213Ms. McColl has known Star since she was 15 years old. When growing up, she spent lots of time with Star and her family at Star’s home and at her cottage. She came to know Martin Williamson during that time. In 2001, they spent a couple of weeks in England on a trip.

214Ms. McColl testified that it was very clear that Star would take over the business. Martin made it clear that he would grow the business for Star. Star’s plan was to go into the business herself. During the trip to England, there was discussion about it. Martin made it clear that ultimately he would retire, and Star and Mark would take over the business.

215Ms. McColl testified that between 2001 and 2010 she had opportunities to visit with Star and Martin. During visits, she saw Star, Martin, Mark Frew, and more recently Michael Sweetnam. During all visits, it was clear that Martin loved Star.

216Ms. McColl learned of Martin’s illness in August, 2010. It had been intended that she would go the cottage with Star that month. She testified that she spoke to Martin a couple of times on the phone.

217During one conversation with Martin in August, 2010, Martin said to her “Star is taking good care of me. She is earning her inheritance.”

218Ms. McColl testified that she spoke to Martin again in mid-September, 2010. During that conversation, Martin did not know who she was and was not interested in talking.

219On cross-examination, Ms. McColl acknowledged that during the conversation in July when Martin said Star was earning her inheritance, Star was present.

220David Perlmutter testified. He lives in New York City, and he is 84 years of age.

221During Martin Williamson’s lifetime, Mr. Perlmutter knew him very well. Martin was a customer of his. They met in 1979.

222From 1979 until 2001, he and Martin socialised at least one a year. They spoke very often. He testified that they saw each other less after Martin and Josephine separated.

223Mr. Perlmutter testified that he and Martin resumed their friendship a couple of years before Martin died. He said Martin came to visit him in New York City. They spoke at least every month or so. He said after Martin got sick, they spoke to each other a lot. He described himself as a close friend.

224Mr. Perlmutter testified that he watched Star grow up from the time Star was six years old. He and Martin discussed Star very often. He was at Martin’s cottage at least once a year, and Star was there. He said he and Martin travelled together often to Europe, Vancouver, and in Ontario.

225Mr. Perlmutter testified that he and Martin discussed Star’s education and business prospects often. Martin made it clear that Star would not be going to university. He said there was no need, as Star and he have other plans. Star would be running the business. First-hand experience is better than any education.

226Mr. Perlmutter testified that he was one of the first people Martin called when he was diagnosed with cancer. He said that for a while, Martin appeared to be fine. However, he quickly got worse, and went he went into the hospital he was not the same person. Mr. Perlmutter tried to call to Martin at least once a week.

227Mr. Perlmutter testified that he discussed with Martin his relationship with Josephine. He said Mr. Williamson’s attitude towards Jo was very bitter. Earlier, he had simply been sad about the break up.

228Mr. Perlmutter described Martin Williamson as a wonderful guy. He was never quick to anger, he never swore, he was not vulgar, and he was a perfect gentleman around women.

229Mr. Perlmutter testified that he was shocked to hear that Star had been cut out of the will. He said Martin had been very close to Star and never expressed a harsh word about her.

230On cross-examination by Mr. Hull, Mr. Perlmutter confirmed that he had not physically seen Mr. Williamson very often after 2001, except for one visit from Martin in New York City. He said they were very often on the phone after 2001.

231On cross-examination by Mr. Penfold, Mr. Perlmutter confirmed that he had only met Mr. Dooley on one occasion over dinner in the late 1990s. He only knew him as Mr. Williamson’s accountant. He did not actually know Mr. Dooley’s name.

232Dianne Lesage testified. She and Martin knew each other through business. She said that in the last ten years of Martin’s life, they became friends. They would have dinner approximately every two months, and they would speak on the telephone once per month.

233Ms. Lesage testified that she saw Star approximately four or five times in 20 years.

234Ms. Lesage testified that she was aware that Star had worked in Martin’s business for a couple of years. She said that Martin told her that things didn’t work out. Ultimately, she worked at Canpaco after Star had asked Martin if she could work at Provincial. Martin asked the owner of Canpaco if Star could work there.

235Ms. Lesage testified that she and her husband Rick will be buried at a cemetery in Creemore, Ontario. She said that Martin and Grace had come to their country property for a weekend, and asked to see the tombstone. She testified that Martin told her “I’m going to be buried beside you and Rick.”

236Ms. Lesage testified that Martin discussed with her the wedding of Star and Michael Sweetnam. Martin told her there had been discussion as to where the wedding would be, and Martin had made it clear he did not want the wedding to be at Josephine’s house. He said Grace had not been invited to the wedding, and therefore he did not go himself.

237Ms. Lesage testified that she attended a birthday party for Sophia in March, 2010. She said Star was angry, and she and Martin had words.

238Ms. Lesage testified that she was aware of another occasion when Martin and her father had words. She understood that Star was angry because her father had left her mother. She said Martin had tried to have a relationship with Star, but they argued while they were in a restaurant and Star left when she was angry.

239Notwithstanding their disagreements, Ms. Lesage testified that Martin loved his daughter and wanted to have a father-daughter relationship.

240Ms. Lesage was aware that Martin had arranged for an RCA to be created in 2006, under which Star was the beneficiary.

241Ms. Lesage testified that she received a telephone call from Grace on July 20, 2010, during which Grace informed her that Martin had had a seizure and was in hospital. She visited Martin in the hospital. She did not think the matter appeared to be that serious. She said Martin was out of the hospital in three or four days. He was told he had a brain tumour. He wanted to go to Labrador, and he did so on August 4, 2010. Grace went with him.

242When he returned from Labrador, Martin called her. She and Rick went to see Martin the following week. They had dinner outside the house. Star and Michael Sweetnam were there. Martin’s health was discussed. She did not say very much to Star. She denied making any nasty comments to Star, and particularly denied saying “Why are you crying? – you don’t care about him.”

243Ms. Lesage testified that she had no awareness as to the circumstances of the making of Martin’s first will. As far as she was concerned, Martin was capable of making a will.

244After Martin’s return from Labrador, Martin returned to work, and as far as she knew he was running the business. He would call her on business matters and participate in meetings.

245Ms. Lesage testified that she became aware of the fact that Martin had prepared a will, and had prepared a power of attorney naming her as one of the attorneys, after Martin had prepared them. There was very little discussion about any will prepared in August.

246Ms. Lesage testified that towards the end of August, Martin mentioned to her that attempts were apparently being made to freeze his assets. He was very annoyed. Ms. Lesage testified that during one visit at Martin’s home, Star and Michael were there with the children. One of the girls mentioned the fact that Martin was dying, and asked which dog she would get. Martin was annoyed by this, and told Star he did not think it was right that she had told the girls he was dying. Star responded that she was not going to lie to the children, and Martin said that as far as he was concerned it was not appropriate. Martin asked Ms. Lesage’s opinion, and she said she agreed with Martin.

247Ms. Lesage testified that she received a call from Martin in mid-August, 2010. He asked her to meet with him and Terry Dooley, his accountant. She did so.

248Ms. Lesage testified that Martin told them he wanted them to help him with his affairs. He said he had made a will, but decided that he had left too much money to one person, and that he wanted to change it. He wanted to make a new will before he would commence radiation treatment on September 9, 2010.

249Martin did not want to go downtown to prepare a new will, and wanted to use a lawyer who was more local. Accordingly, Linda Zanardo became involved.

250Ms. Lesage testified that she attended a meeting at Linda Zanardo’s office on September 7, 2010. She met Martin outside the building. There were 18 or 20 steps to climb. Before going up the stairs, Martin asked her to whom he should leave the residue of his estate. Ms. Lesage said Martin should not ask her that question.

251Ms. Lesage testified that about half way up the stairs, Martin asked the same question again. Ms. Lesage testified that she said to Martin “Just leave it to four or five of your friends.” She said she was not entirely paying attention because of some difficulty going up the stairs.

252Ms. Lesage testified that during the meeting, there was discussion about the residue. There was discussion about the terms of the August will. Martin said he wanted to give some money to Terry Dooley for a dock. Mr. Dooley said he did not want any money.

253Ms. Lesage testified that there was a suggestion that the amounts of money to be left to individual people could be left open, and that Mr. Dooley and Ms. Lesage could decide. Ms. Lesage said no, and told Martin that he was capable of making his own decision.

254Ms. Lesage testified that Mr. Dooley asked whether anything should be done for Star and Martin’s grandchildren. Martin said nothing should be done for them. He said that the grandchildren have a wealthy father and they will be capable of looking after themselves. He said he had already taken care of Star.

255Ms. Lesage testified that after the meeting, Martin continued to be involved in the business.

256Ms. Lesage testified that in early October, 2010, Martin advised her that he had made a tape recording for Star, and asked that she listen to it. She called Star, and asked her to return the tape but Star refused.

257In mid-October, Ms. Lesage testified that Martin made her aware of a confrontation with Michael Sweetnam. He said Michael had tried to intervene during an argument between Star and himself. Martin said “Who do you think you are – this is between my daughter and me”, to which Michael said “I don’t care how many brain tumours you have – I’m going to punch your fucking face.” Martin said he was scared and wanted to call the police. Ms. Lesage testified that she told Martin that she would not allow Michael to see him.

258Ms. Lesage testified that the next morning, Martin called her and asked her what she was going to do about Michael. Ms. Lesage said she called Linda Zanardo and asked her to prepare a letter, which Ms. Zanardo did. Ms. Lesage showed the draft letter to Martin, who said it was not strong enough. Ultimately, the letter was not sent.

259Ms. Lesage testified that Martin had wanted the various doctors to provide letters indicating that Martin was of sound mind. Ms. Lesage testified that she called Stephen Grant, Martin’s matrimonial lawyer, who advised her to call Victoria Crewe-Nelson. She did call Ms. Crewe-Nelson, who prepared some wording for letters to be signed by the various doctors. The wording was shared with Martin, who indicated what wording he wanted in the letter signed by Dr. Whitton. Ultimately, after Martin’s death, she got letters signed by a number of different doctors.

260Ms. Lesage testified that she assisted with the sale of the businesses. She called three or four competitors, after which Mr. Dooley was involved in any negotiations. She had no other involvement.

261Ms. Lesage testified that she had some minor involvement in discussions with Martin regarding the settlement with Josephine.

262Ms. Lesage testified that Martin had told her he wanted to be buried beside her and her husband Rick. In mid-November 2010, he was failing, so she typed a letter to be signed by Martin indicating that his ashes would be the property of herself and Rick, which should be spread with their remains. She typed the letter, read it to Martin, and he signed it. She prepared the letter because there had been difficulties with Josephine and Star, and she did not want problems.

263Ms. Lesage testified that she signed the separation agreement with Josephine on Martin’s behalf, as his attorney, on December 22, 2010.

264Ms. Lesage testified that she had nothing to do with the first will. She found out in September that Martin had left everything to Grace, except for $100,000 that he left to Yvonne Butler, and some real estate he left to Lise Boudreau in Quebec. She did not know anything about her.

265Apart from helping Martin up the stairs, she had nothing to do with any of Martin’s decisions with respect to his second will. After the meeting, on the drive back to Martin’s home, he told her that he had left her $50,000 for a “bauble”. He had also said that he had put Rick in the residue. Ms. Lesage told him that he did not owe them anything.

266Ms. Lesage testified that Martin was upset with Grace, because he thought she should have quit her job and taken better care of him. He asked Ms. Lesage if she would help him. Ms. Lesage suggested her sister Esther as a caregiver, and Martin hired her in October. She continued to be his caregiver until he died.

267Ms. Lesage testified that she was aware that Martin had attempted to make two other wills after the will he signed on September 8, 2010. She did not want to be involved in them. When the subject came up, she called Mr. Dooley who dealt with the matters.

268Ms. Lesage acknowledged that she sent Mr. Dooley an email on September 21, 2010, in which she outlined some changes that Mr. Williamson wanted to make to his will. He wanted to reduce the payment to Grace from $500,000 to $300,000. Instead of Lise Boudreau’s daughters being included in the residue, they should get $25,000 each. The daughter of one Martin’s business partner’s, Shannon Whalley, should get $25,000. She corrected the spelling of her husband’s name from “Radeany” to “Radvany”. There would only be four people in the residue rather than six.

269Emails were exchanged between Ms. Lesage and Mr. Dooley towards the end of October, 2010 regarding even more changes to the will.

270No new will was ever signed after the one executed on September 8, 2010. Martin told her that the lawyer had suggested that if any further changes were made, Grace could contest the will.

271Ms. Lesage testified that she was at the hospital shortly before Martin died. Grace called her and told her that Star was coming to see Martin. She waited outside Martin’s door, and said it was all right for Star to go in, but not Michael, because Michael had threatened Martin. On the date of Martin’s death, December 24, 2010, Star spent some time alone with her father.

272Ms. Lesage testified that she told Josephine that she wanted her and Grace to stand by the casket of Martin during the funeral. They did not do so. She said her husband Rick had delivered the eulogy. She did not recall whether Rick said anything about Star or the grandchildren. She said she was not well.

273Ms. Lesage testified that she never observed any rage in Martin or any confusion, or any memory problems.

274On cross-examination, Ms. Lesage stated that she is the president of Poly-Cel Packaging Products, a company established by her husband Rick 30 years ago. Rick is a vice-president of the company. Poly-Cel did business with Provincial Paper.

275Ms. Lesage testified that while Martin confided in her and Rick, he was a private man and did not discuss everything. For example, they did not know that there was any problem between Martin and Josephine until they separated.

276Ms. Lesage confirmed that she did not know how often Martin actually saw Star or had lunch with her, or even how often they spoke on the phone. She did not know how often Martin saw his grandchildren. Star did not come up in the conversation all the time.

277After Martin was ill, Ms. Lesage would see him three or four times a week and would often discuss matters on the telephone. She testified that when she visited Martin, she would often see Star there as well. She estimates that she saw Star three or four times between the middle of August and the end of September, 2010. Generally she only Star in the evenings or on weekends. She does not know how often Star was there.

278Ms. Lesage acknowledged that Martin loved his grandchildren.

279With respect to the discussion about Martin’s dogs, Ms. Lesage testified that the girls wanted to know which dog they would get. She took the position that the girls were laughing at their grandfather dying.

280Ms. Lesage acknowledged that she was aware that Star and her family were using Martin’s cottage.

281Ms. Lesage testified that she did not know Martin had had a seizure in front of the children.

282Ms. Lesage testified that Martin felt that Josephine and Star were acting in unison against him.

283Before August, 2010, Martin had never discussed his intentions regarding the future of his business with Ms. Lesage.

284Ms. Lesage testified that Star’s disability came up as a subject in August, 2010. Martin thought her alleged disability was “rubbish”. He said “In 20 years, wouldn’t I have known if she had a disability?” Ms. Lesage said she saw no evidence of a disability. Martin thought this was simply a way for Josephine to get more money, and that the disability was concocted.

285Ms. Lesage acknowledged that Ms. Crewe-Nelson had recorded in her notes that Martin had appeared to have some problems with his memory. She herself did not notice any. She did not know that Martin was uncertain as to the spelling of his grandchildren’s names. She did not know at the time that Martin had valued his business at $1.5 million. She had no involvement in the first will.

286Ms. Lesage did not know Lisa Boudreau or anything about Martin’s relationship with her.

287Ms. Lesage identified Yvonne Butler as someone who effectively ran the company with Martin. She was unable to comment on why Martin would have referred to her as his secretary.

288Ms. Lesage became aware that Martin wanted to change his will. His position was that there was too much money being left to one person, namely Grace. Martin called Mr. Dooley and asked for a total value of all his assets.

289With respect to the September will, Martin’s desire to reduce Grace’s entitlement to $500,000 occurred before there had been a cooling off in their relationship.

290She testified that she and Mr. Dooley became involved once Martin wanted to change his first will.

291Ms. Lesage acknowledged that she received an email from Mr. Dooley dated August 26, 2010. She was unable to say why Mr. Dooley referred, in his email, to the need to get a competency certificate. She was also unable to say why, in an email dated August 27, 2010 from Victoria Crewe-Nelson to Mr. Dooley, there was mention of the fact that Martin wanted to leave $1 million to Grace.

292Ms. Lesage testified that she became aware that Martin was unhappy with Grace sometime in mid-September, 2010.

293Ms Lesage acknowledged receiving a copy of an email dated September 1, 2010 from Mr. Dooley to Ms. Crewe-Nelson, in which Mr. Dooley asserts that Martin wanted to “cap” Grace at whatever amount Martin wants, and that the residue would flow to a testamentary trust, the purpose of which would appear to be for the benefit of Martin’s daughter if required to assist her with an apparent disability, perhaps to fund the grandchildren’s education.

294Ms. Lesage testified that the August will reflected Martin’s wishes, but that the same day he made the will he realised he was leaving too much money for Grace.

295Ms. Lesage asked Mr. Dooley to find another lawyer to prepare another will. They went to a meeting with Linda Zanardo on September 7, 2010. At the meeting were herself, Martin, Terry Dooley, Linda Zanardo, and her assistant. She testified that they went through the August will paragraph by paragraph.

296Ms. Lesage testified that she was not concentrating during the meeting. She recalled that Martin said he owed Star and the kids nothing. He said they would be taken care of by their own father. She did recall that Martin was struggling with names. She did not recall it being mentioned that the children’s supposedly wealthy father was no longer married to Star.

297Ms. Lesage testified that Martin had asked her who he should leave the estate to, while she was helping him up the stairs. She told Martin he should just leave the estate to four or five of his friends. She believed that her opinion was important to him.

298Ms. Lesage testified that she knew Martin had an RCA under which Star was the beneficiary, and that the RCA was worth approximately $500,000. Thus, in her view, Star was well provided for.

299Ms. Lesage testified that she did not know that her husband was a residuary beneficiary until she left Linda Zanardo’s office. She said Martin told her that he left $50,000 to her and that Rick was a residuary beneficiary. She told him it was not necessary, and that they did not want anything.

300Ms. Lesage acknowledged that there were mistakes in the September will, including the misspelling of her husband’s name. She was not surprised at this, nor was she surprised that Martin did not know Michael Sweetnam’s last name, even though he and Star had been married for two years.

301Ms. Lesage acknowledged that Martin became unhappy with the September 8th will within a couple of weeks. She could not recall when Martin first discussed wanting some changes. He wanted to reduce Grace’s entitlement to $300,000. She did not ask why. She agreed that the residual beneficiaries were reduced to four from six.

302Ms. Lesage acknowledged that Martin wanted to change his will again, in October, 2010. She took direction from Martin about this and called Mr. Dooley to tell him what the instructions were. Grace’s entitlement was to be reduced even further, from $300,000 to $100,000. Mr. Yurichuk, who had been a residuary beneficiary, would no longer be one, but instead would get some boats. She said Martin was disillusioned about Mr. Yurichuk, who had stopped seeing him as frequently. However, he was going to leave Cathy Kuch and David Joy as beneficiaries, even though they did not see him either. The residue was now going to be divided in three, as opposed to four.

303Ms. Lesage testified that Linda Zanardo had said that Grace could challenge the will if he made so many changes, and thus he did not sign another new will.

304Ms. Lesage acknowledged that she was instrumental in getting letters from doctors regarding Martin’s mental capacity. Martin asked for a letter from Dr. Whitton to the effect that he was of sound mind. On her own, Ms. Lesage decided to get letters from other doctors. Star had already contested the will by then. She provided the wording for the letters for the doctors. Martin had said to get the wording from a lawyer. She asked Mr. Dooley to get a letter from Stephen Grant. Mr. Grant suggested using Victoria Crewe-Nelson.

305She asked Ms. Crewe-Nelson for some wording, which was provided by email. Martin decided what wording he wanted for Dr. Whitton. Ms. Lesage could not recall where she got the wording for the letters for the other doctors. She said she wanted unbiased opinions.

306With respect to the alleged threat made to Martin by Michael Sweetnam, Ms. Lesage testified that she had been told about it by Martin. She relied on what Martin told her about it. She did not ask Michael Sweetnam about it until she confronted him when Martin was on his deathbed. She said Michael did not deny making the threat.

307Ms. Lesage testified that Martin and Star argued about Josephine’s money. As a result, Star stopped seeing her father. Ms. Lesage acknowledged that she had never personally observed such an argument.

308Ms. Lesage testified that Martin had returned to work after he had been diagnosed in late July, 2010. She could not explain why, in an email dated October 25, 2010 from Mr. Dooley to Stephen Grant, it was stated that Martin had not done anything of an employee/operational nature since July 23rd.

309Ms. Lesage testified that the RCA was created in 2006, and had been put in place for Star. She acknowledged that she was aware that Mr. Dooley had attempted to withdraw money from the RCA.

310Ms. Lesage acknowledged that she had been the one to hire her sister as a caregiver or companion for Martin.

311Ms. Lesage acknowledged that she did not tell Star that her father was on his deathbed. She asserted that she did not tell Grace to not tell Star. She said Martin had told Grace that he did not want to see Star. She confirmed that she did not let Michael come into Martin’s room when he was on his deathbed. She took the position that Michael had been disrespectful to Martin. She denied that the next day, the day of Martin’s death, she had refused to leave Star alone in the room with her father. She said the door was open two or three inches, and that they were ten feet down the hall while Star was in the room.

312Ms. Lesage testified that on Christmas Day, the day after Martin’s death, she did not contact Star. She never offered to allow Star to visit. She took the position that Martin wanted his ashes to belong to her, and she refused to give them to Star. She said the ashes are currently in her home.

313Ms. Lesage acknowledged that she has not allowed Star to use the cottage, even though it is vacant.

314Ms. Lesage testified that she had asked the family to stand beside the casket at the funeral. She said she does not recall what her husband Rick said during the eulogy, because she was somewhat ill at the time. She insisted that she would not give Martin’s remains to Star without a court order.

315Stephen Grant testified. He has been engaged in the practice of family law for over 40 years. Martin Williamson was one of his clients.

316Mr. Grant testified that Josephine had brought a motion for temporary support before Thomas Bastedo, an agreed-upon arbitrator, and Mr. Bastedo issued an award dated June 30, 2010.

317Mr. Grant testified that he became aware of Martin’s illness in the latter part of July, 2010.

318Mr. Grant testified that in the latter part of August, 2010, there was either a threatened motion or an actual motion brought by Josephine seeking to freeze Martin’s assets. Mr. Grant had somewhat heated correspondence by email with Philip Epstein, counsel for Josephine, about the matter.

319I have been given no evidence to suggest that any motion to freeze assets was ever pursued. While emails from Mr. Grant to Martin were produced, in none of them is there any suggestion that an order freezing assets had been obtained.

320Mr. Grant testified that he had been made aware through Josephine’s counsel that Josephine wanted Star to benefit from Martin’s will. In an email dated August 25, 2010, Mr. Grant advised Mr. Epstein that he understood that Josephine had said that if Provincial and Star Packaging were transferred to Star, Josephine would accept that as credit against her equalization entitlement.

321Mr. Grant was forwarded a copy of Josephine’s personal letter to Martin dated August 26, 2010. In an email dated September 2, 2010, from Mr. Dooley to Mr. Grant, Mr. Dooley said “MW sez that Star bequest is off the table (per his chats with Star, Per JW)”. As of that date, there was no deal between Martin and Josephine.

322By the early part of October, the main elements of a deal had been agreed to, although a deal was not finalized until very shortly before Martin’s death. As of October 6, 2010, two main problems remained: certain tax issues, and Josephine’s wish to be given a property on Jainey Avenue. Mr. Grant was told that Martin had taken care of Star. As far as he was concerned, Martin had no obligation to Star regarding his estate.

323In the separation agreement, dated December 22, 2010, it is specifically stated that Martin would irrevocably designate Star as the sole beneficiary of the RCA, which had an actual value of $550,000.

324Mr. Grant testified that during his dealings with Martin, he was able to follow conversations, he did not misidentify anyone, and he gave no indication that he was doing anything that he did not want to do.

325On cross-examination, Mr. Grant acknowledged that when Martin was ill, most communication between himself and Martin was through email.

326Mr. Grant acknowledged that Mr. Dooley had been involved in the matrimonial negotiations for some time, either as an advisor or as an intermediary between Mr. Grant and Martin. At some point, Mr. Grant became aware that Mr. Dooley had a power of attorney.

327Mr. Grant acknowledged that in the material filed with Mr. Bastedo on the motion for spousal support, Josephine had filed material to show that she was providing assistance to her disabled daughter, in the amount of $4,000 per month. Mr. Grant testified that he discussed this with Martin, and told him that as far as he was concerned it was an unwarranted claim. He did not recall whether Martin told him that Star was not disabled. Mr. Grant was not aware that Star had a disability involving her neck.

328He acknowledged that in an email to Martin dated July 4, 2010, in which he discussed Mr. Bastedo’s award, he noted that Mr. Bastedo “did pick up on Jo’s expenses, particularly the $4,000/month that she claimed for Star.”

329Mr. Grant acknowledged that Martin’s feelings fluctuated as the matter progressed. He was upset a lot, and was distracted by his illness. Sometimes his anger was manifested in the emails he sent.

330With respect to the freezing order, Mr. Grant did not recall whether he actually got a motion record in that regard. He said that if he had, he would have sent it to his client. He said he was not aware that Martin had screamed at Star that his assets were frozen.

331Mr. Grant testified that he knew about Martin’s medical condition by the end of August, 2010. He probably did not know about the extent of his medical condition. He did not ask what medications Martin was taking, or any side-effects. He conducted no capacity assessment. He had no formal training to conduct one.

332Mr. Grant testified that most of his dealings were through Mr. Dooley. He could not recall much if any involvement of Ms. Lesage.

333Mr. Grant acknowledged that he had requested information about Martin’s involvement in the business since his seizure in July, 2010. He was advised that Martin had had very little involvement since his seizure.

334Dr. Holger Wolfgang Hirte testified. His speciality is internal medicine, and particularly oncology.

335Dr. Hirte saw Martin Williamson at the Juravinski Cancer Centre in Hamilton on August 19, 2010. He noted on that day that Mr. Williamson’s MMSE score was 29/30 and his Karnovsky score was 90. He noted that Mr. Williamson had had a CT and MRI at the Joseph Brant Emergency Room on July 20, 2010, which indicated a lesion in the left parietal lobe. A biopsy was performed on July 29, 2010, which showed a glioblastoma multiforme. The plan moving forward would be to avoid surgery due to the size and depth of the tumour, and undertake six weeks of radiation with Temozolomide.

336Dr. Hirte saw Mr. Williamson again on August 26, 2010. On that date, Dr. Hirte noted that Mr. Williamson was quite ataxic. He wondered whether Mr. Williamson was getting somewhat Dilantin-toxic.

337Dr. Hirte testified that his team did not detect any signs of cognitive impairment. He did not recall Star being at the hospital. He did not recall any misidentification or rage on the part of Mr. Williamson.

338Sometime later, Dr. Hirte was approached and asked to prepare a letter regarding Mr. Williamson’s mental capacity. He signed a letter dated June 23, 2011, which reads as follows:

I am writing in response to a request to determine whether Mr. Williamson was of sound mind and capable of making his will. I was one of the physicians involved in his care and saw Mr. Williamson at his new patient consultation visit on August the 19th, 2010 and the following week on August the 26th, 2010 to address questions he had. It is my opinion that at that time the patient’s cognitive abilities had not been affected by his illness. The patient was clear-minded and understood and knew the details pertaining to his life. At that time he had the mental capacity to make reasoned decisions pertaining to matters affecting his life, and had the ability to appreciate the consequences of such decisions.

339On cross-examination, Dr. Hirte confirmed that he had only seen Mr. Williamson twice. He recalled that there were some family and friends as well as other doctors present.

340Dr. Hirte testified that he had no recollection of the person who asked for the letter that he signed. He stated that the content of the letter had been provided to him.

341Dr. Hirte was cross-examined as to the drugs Mr. Williamson was taking, and their potential adverse reactions. The drugs included Dexamethasone, Diazepam, Dilantin, Lorazepam (Ativan), Temidol, Prochlorperazine, Granisetron, and Levetiracetam.

342With respect to Dexamethasone, Dr. Hirte confirmed that adverse reactions can include depression, emotional instability, malaise, mood swings, personality changes, psychic disorders and seizure.

343With respect to Diazepam, adverse reactions can include amnesia, ataxia, confusion, depression, and fatigue.

344With respect to Dilantin, adverse reactions can include ataxia, confusion, dizziness, insomnia, mood changes, peripheral neuropathy, and vertigo. Dr. Hirte confirmed that from an earlier medical report by Dr. Lang, one of Mr. Williamson’s treating physicians, Mr. Williamson had peripheral neuropathy, which is caused as a consequence of diabetes, and affects the outer limbs, particularly the feet.

345With respect to Lorzepam, or Ativan, adverse reactions can include unsteadiness, aggressive behaviour, agitation, anxiety, central nervous system stimulation, disinhibition, disorientation, hostility, irritability, mania, memory impairment, outbursts of anger, psychosis, seizures, sleep disturbances, and vertigo. Dr. Hirte confirmed that this drug is generally to be avoided in people over the age of 65.

346With respect to Temozolomide, or Temidol, adverse reactions can include amnesia, anxiety, memory impairment, depression, and confusion.

347With respect to Procholorperazine, it is considered a high risk medication for geriatric patients. Adverse reactions can include agitation, insomnia, restlessness, seizure, and tremulousness.

348Dr. Hirte acknowledged that the drug can affect brain chemistry.

349With respect to Granisetron, for one per cent to ten per cent of patients adverse reactions can include dizziness, insomnia, drowsiness, anxiety, agitation, and central nervous system stimulation.

350With respect to Levetiracetam, adverse reactions can include aggression, agitation, anger, anxiety, depersonalisation, emotional lability, irritability, and drowsiness.

351Dr. Hirte confirmed that the MRI disclosed multiple lesions in Mr. Williamson’s brain. He had three lesions in the right parietal lobe. Further, there were focal white matter changes consistent with microangiopathic disease. There were small lacunes, which are small holes in the brain.

352Dr. Hirte confirmed that lesions in the frontal lobes of the brain can cause misidentification and behavioural changes. He agreed that Mr. Williamson had difficulty tying the laces of his shoes, particularly with his left hand. This signifies cognitive and motor function difficulties.

353Dr. Hirte confirmed that he was aware of Mr. Williamson’s background with diabetes. It affected his eyes and his feet. The lacunes in Mr. Williamson’s brain were consistent with his history of diabetes. It is possible that they affected his brain, particularly executive functions, and was consistent with mood swings. Mood swings would be particularly more difficult when the patient is on medication. It would be more difficult to maintain blood sugar levels.

354Dr. Hirte confirmed that the Mini-Mental Examination does not assess higher executive functions. It is not an in-depth test.

355Dr. Hirte confirmed that he never discussed Mr. Williamson’s estate. He agreed that if Mr. Williamson had symptoms of memory loss and misidentification, they would be consistent with Mr. Williamson’s medical condition. From Dr. Hirte’s perspective, Mr. Williamson was competent only for his purposes. He also agreed that sexual disinhibition would be consistent with Mr. Williamson’s medical condition. Further, if Mr. Williamsons mistook his daughter for his former wife, that would potentially be consistent with Mr. Williamson’s medical condition. If Mr. Williamson had perceived a threat of violence, when there had in fact been no such threat, that could also be consistent with Mr. Williamson’s medical condition and his use of steroids. If he had behaved in a manner that was out of character for him, for example, he had generally been a kind person and became one who was aggressive and swearing, that would be consistent with Mr. Williamson’s medical condition. If he readily became confused, and could not decide what to do with his estate, that would be consistent with Mr. Williamson’s medical condition.

356Dr. Hirte confirmed that a report from the radiology department of Joseph Brant Memorial Hospital dated July 21, 2010, disclosed a lesion in the right frontoparietal region of Mr. Williamson’s brain.

357Dr. Hirte confirmed that his focus was on treating Mr. Williamson’s cancer. His focus was not on Mr. Williamson’s relationships with various people, or his assets, or claims on his estate, or his will. He is not capacity assessor, and he did not conduct an assessment of Mr. Williamson’s capacity to make a will.

358Yvonne Butler testified. She is currently employed as a sales manager with Crawford Packaging, which is the organization that ultimately purchased Mr. Williamson’s businesses. She testified that the purchase price for the businesses was discounted somewhat because service for employees was protected.

359Ms. Butler testified that she began at Provincial Papers in 1988 as a receptionist. She progressed through customer service and the purchasing department until she became the supervisor of customer service in 2000. When the general manager left, she assumed the duties. She signed cheques, and she took care of everything involving the business when Mr. Williamson was away. She made decisions on his behalf.

360Ms. Butler had a close relationship with Mr. Williamson, and they discussed many personal things. Mr. Williamson lived with Ms. Butler and her husband for a week or two in 2001 or 2002.

361With respect to the relationship between Mr. Williamson and his daughter Star, Mr. Butler testified that she and Mr. Williamson did not discuss it very much. From her perception, they did not get on very well. She said Martin was disappointed that Star left her job with CanPaco.

362Ms. Butler testified that Star worked in the business in the mid-1990s, in customer service. She testified that Star threw her weight around. She did not discuss Star’s work ethic with Martin.

363Ms. Butler testified that Rick Radvany and Dianne Lesage attended company Christmas parties. When Martin and Josephine separated, they stayed on Martin’s side. She testified that Martin became close to Rick after Mr. Whalley died.

364Ms. Butler testified that in July, 2010, she received a telephone call from Martin when he was in hospital. He told her he had had a seizure. She went to see him. He had a biopsy at the end of July.

365Ms. Butler testified that Martin instructed her to let Stephen Grant know that he wanted to get the matrimonial situation wrapped up as soon as possible.

366Ms. Butler testified that she contacted Legge and Legge and arranged for Martin to see a lawyer when he returned from his fishing trip.

367Ms. Butler testified that in August, 2010, she saw Mr. Williamson every day except for the period he was in Labrador. As far as she was concerned, it was business as usual. She detected no speech difficulties, no confusion and there was no misidentification of people. She testified that Mr. Williamson had lost the use of his left arm.

368Ms. Butler testified that after Martin’s appointment at Legge and Legge, he telephoned her and said that he had to make sure he knew what he was worth.

369Ms. Butler testified that she was not aware that Martin was going to leave her $100,000 in his first will. He told her about it later. He told her that he had appointed Dianne Lesage as one of his executors. Ms. Butler was surprised. Martin said Dianne was tough, and she would stand up for Martin’s wishes if the will were contested.

370Ms. Butler did not know why she was described as a secretary in Mr. Williamson’s will. She said “He was English”. She said she supposed she was his secretary in a way.

371Ms. Butler testified that she was at Martin’s house one day, and they went for a walk in a park. Martin told her that he taken care of Star with some kind of insurance policy worth $550,000, and asked whether Star would be happy with that. Ms. Butler said “Who wouldn’t be happy with $550,000?” She asked Martin why Star was not in his will, and he said “She doesn’t deserve it.”

372Ms. Butler testified that she understood Star had come to see Martin when he was ill. Martin told Ms. Butler “Now she’s shown up to find out about the will.” Ms. Butler testified that Martin said he did not want Star there, and had asked her to leave.

373Ms. Butler testified that Martin’s illness was announced to the staff on September 8, 2010. She said it was a devastating day.

374Ms. Butler testified that Martin wanted to put together a committee to run the business. The committee was up and running by the end of October. In August and September, Martin was running the business directly or indirectly, or Ms. Butler would do it.

375Ms. Butler testified that Martin told her that he had prepared a second will. He discussed it with her.

376Ms. Butler testified that Martin asked her how large her mortgage was on her house. She told him it was over $200,000. He said “I’ve increased your share to $250,000 – pay off your mortgage – that’s the end of it.” Ms. Butler asked him why he had done this and he said “For the past ten years you’ve helped me, now I want to help you.”

377Martin told her that he wanted to make a gesture for Rick Radvany. He was a true friend.

378Ms. Butler testified that she knew Martin had lived with Grace for about ten years and they seemed happy. She did not discuss with Martin how much he was leaving her.

379Ms. Butler was unable to say why Martin left money to others, except in general terms. She knew that Lise Boudreau occupied a property in Quebec. He wanted to leave money to her children to help them along. He wanted to show appreciation to Dianne. She did not know about the other beneficiaries.

380Ms. Butler testified that there was no specific discussion about Star’s situation, except that Martin said she was well-off. She had money from her ex-husband, her current husband, and her mother.

381Ms. Butler testified that as of September 2010, she and Martin operated Provincial. There was no confusion, no misidentification and no rages. In October, he was in the hospital for radiation treatment. She saw him every day and they talked business. He was lucid, and understood his prognosis.

382Negotiations to sell the business started in mid-October, 2010. CanPaco had been given a right of first refusal to buy the business because Star had been given a job there. An offer was made by CanPaco but it was too low. Ultimately, Crawford made an offer to buy the business through Mr. Dooley. She was not involved.

383Ms. Butler testified that she was aware that Martin had wanted to make two subsequent wills. She was aware that he was advised that the more often changes are made, the less credible they are.

384On examination by Mr. Penfold, Ms. Butler confirmed that Mr. Williamson was a delegator. He trusted Mr. Dooley who negotiated on his behalf with respect to the separation agreement. He gave Mr. Dooley instructions with respect to the sale of the business. As far as she was concerned, Mr. Dooley did not substitute his decisions for Martin’s.

385On cross-examination, Ms. Butler confirmed that when she was the sales manager 20 people reported to her. She confirmed that she was Martin’s “right hand man”, and 25 people reported to her.

386Ms. Butler testified she never had a job title. She did not recall the last time Martin had ever called her a secretary. She agreed that it was not an accurate description of her position or her duties.

387Ms. Butler confirmed that she had sworn an affidavit in October, 2011. Ms. Lesage had asked her to do so. She went to a lawyer’s office to swear it. She said she typed it up herself.

388Ms. Lesage confirmed that there was nothing in her affidavit regarding an insurance policy of $550,000 for Star. There was also nothing about Martin saying that Star did not deserve anything. There was nothing about Martin not wanting Star to visit him.

389Ms. Butler testified that she was not aware that Martin saw Star every day in August and September, 2010. She was aware there were visits, but she was not aware that they were every day.

390Ms. Butler confirmed that Martin’s caregiver was Dianne’s sister, Esther. She became the caregiver closer to the end of Martin’s life.

391Ms. Butler testified that she understood Star and her father had some kind of argument in early October. Star’s husband had apparently said something over the telephone in a threatening manner.

392Beginning in September, Martin did not want Star to visit him. He said “She just wants the money”. He said he had a bad relationship with her. He wanted Star to stay away. He said Star was bitter and spiteful.

393He said Star never wanted to talk about his health. She only wanted to talk about his will and his money. He said Star treated him “despicably”. She never asked him what he meant.

394Ms. Butler confirmed that Martin never yelled at people. To do so would be out of character and unexpected.

395Ms. Butler testified that Martin never said that Grace was only with him for the money. He did not tell her that he was reducing Grace’s inheritance.

396Ms. Butler testified that she never spoke to Martin about his grandchildren. She knew that Martin knew their names. She said she would not be surprised if he had forgotten their names in August, 2010. She did not know whether Martin loved them.

397Ms. Butler knew that Star was married. She said she would not be surprised that Martin did not know her husband’s last name. She would be surprised if Martin did not know the names of his beneficiaries or how they were spelled.

398Ms. Butler testified that she knew Star had resigned from CanPaco. She said she did not know that the reason Star resigned was because of her medical condition.

399Ms. Butler testified that Martin was a very astute business man. He knew the business inside out, and he would have known what it was worth. She did not know that Provincial had sold for over $4 million and did not know that Martin had said the business was worth $1.5 million in August 2010. She confirmed that the sales of the business were approximately $10 million per year, and that the gross profit was around $2.5 million per year.

400Ms. Butler testified that Martin had worked in the business until the end of October, 2010. She was shown an email from Terry Dooley to Stephen Grant dated October 12, 2010, in which Mr. Dooley stated that the business of the company was being managed by a four-person operations group established “about six weeks ago.” She was also shown an email from Terry Dooley to Stephen Grant dated October 25, 2010, in which it was stated that Mr. Williamson really had not done anything of an employee/operational nature since July 23rd, and that the company had formed a four-person operational group on August 3rd, which had been effectively running the company. She testified that these emails were not entirely accurate.

401Ms. Butler testified that Martin told her that Star was well-off. Ms. Butler never asked for the details. She knew Star was getting some money from Mark Frew, and some from Josephine. She did not know Michael Sweetnam was unemployed. She did not know why Star was not working. She did not know about Star’s medical condition. She did not know what Star would get from the “insurance policy” having regard to the impact of taxation. She was not aware that Mr. Dooley had been trying to withdraw money from the policy, and she would have been surprised if he had been.

402John Gyokery testified. He is currently employed by Crawford Packing. He was with Provincial Papers before that. Martin Williamson had hired him, and he was his boss.

403Mr. Gyokery testified that over the years he did not really have any discussions with Martin regarding Star.

404Mr. Gyokery testified that in September, 2010, there was a decision made to form a committee to run the company. The committee was formed, and Mr. Gyokery was on the committee. It oversaw the daily running of the business.

405There was no discussion about Star taking over the business. He recalled that Martin said that was not an option.

406Mr. Gyokery saw Martin regularly, at the business, at the hospital in Hamilton and at Martin’s house in Burlington. He did not recall seeing Star during any of his visits.

407Mr. Gyokery testified that Star worked in the business in the 1990s. He had a good relationship with her. He was not 100 per cent sure why she left the business.

408Mr. Gyokery testified that during his interactions with Martin, he detected no confusion, no misidentification, and no forgetfulness.

409Mr. Gyokery was shown Mr. Dooley’s email to Stephen Grant in which it was suggested that there had been no employee involvement by Martin as of July 23, 2010. Mr. Gyokery said it was not accurate to say that.

410On cross-examination, Mr. Gyokery confirmed that he is not a capacity assessor. He does not know about brain tumours, and does not know about drugs and their effects.

411Mr. Gyokery testified that he and Martin did not discuss his relationship with his granddaughters. He does not know about Star’s relationship with Martin and did not know when Star visited him.

412Mr. Gyokery testified that Martin would have known the gross sales of the business. He was a “number person” and he knew what the business was worth. Mr. Gyokery was surprised that Martin would have valued the business at $1.5 million. He did not know the business was sold for over $4 million.

413Mr. Gyokery testified that when Star went to CanPaco some of the accounts went with her. He was not 100 per cent sure that she had a neck problem.

414Victoria Crewe-Nelson testified. She was called to the bar in 2003. From June, 2003 until 2012 she was with Legge and Legge. She is currently an assistant vice president with LPIC.

415When in private practice, 40 per cent of Ms. Crewe-Nelson’s practice was in wills and estates. She prepared one or two wills per day.

416Ms. Crewe-Nelson testified that she prepared the will dated August 16, 2010. She signed the will as a witness. The will was signed the same day it was prepared. Mr. Williamson came to her office with Grace, who waited in the reception area while Ms. Crewe-Nelson spoke to Mr. Williamson. Ms. Crewe-Nelson said Mr. Williamson was charming and had a sense of humour. He had been referred to the firm by someone.

417Ms. Crewe-Nelson decided that she could do the will and have it executed in one day. Mr. Williamson said Grace could stay in their residence after his death, and accordingly Ms. Crewe-Nelson prepared a deed to convey the residence into joint tenancy. She prepared powers of attorney for property and for personal care. On the day she met with Martin, Ms. Crewe-Nelson prepared notes and an “Estate Planning Review”, in which she recorded details of her client’s personal and family information, his assets, his other interests of current or future value, his liabilities, his personal estate planning objectives, his guardians and trustees, and other matters. In her notes and the Estate Planning Review, she noted that Mr. Williamson and his wife were involved in divorce settlement discussions, and that there was an offer for $1.65 million on the table as a final offer.

418Ms. Crewe-Nelson testified that they discussed Mr. Williamson’s medical condition. Mr. Williamson said he had no cognitive difficulties beyond some short-term memory loss.

419Mr. Williamson valued his interest in Provincial Papers and Star Packaging at $1.5 million.

420Mr. Williamson indicated that he wanted to leave everything to Grace, although during the meeting he said he wanted to leave some property in Quebec to Lise Boudreau, and $100,000 to his secretary, Yvonne Butler.

421Mr. Williamson was very strong in his stance that he wanted to leave nothing to his ex-wife. There was a final settlement offer of $1.65 million, which would include all benefit to his daughter and granddaughters. His position was that his ex-wife wanted to safeguard Star’s interest, and Mr. Williamson said “If that’s her position, anything Star gets is through the settlement, and she will get nothing from me.” Ms. Crewe-Nelson’s impression was that Star was close to her mother.

422Ms. Crewe-Nelson testified that she typed the document herself, reviewed it and made changes. She said she had to get the spelling of Grace’s first name from Grace. Ultimately, Martin signed the will, and Ms. Crewe-Nelson and her clerk signed as witnesses. The powers of attorney were signed.

423Ms. Crewe-Nelson testified that Mr. Williamson had brought a list of assets. While she prepared the deed respecting joint tenancy of the residence, she asked that Mr. Williamson speak to his divorce lawyer before registering the deed.

424Ms. Crewe-Nelson testified that Grace came into the room, and the issue regarding joint tenancy was explained to her. The documents were signed for the real estate, but it was agreed that Mr. Williamson would speak to his divorce lawyer before anything further was done.

425Ms. Crewe-Nelson testified that the entire process took about three hours.

426Ms. Crewe-Nelson testified that she subsequently prepared a detailed memorandum regarding the taking of instructions and the preparation and execution of the will. She understood that Martin was considering preparing another will, and she had some concerns, thus she wanted a current record of what happened.

427Ms. Crewe-Nelson testified that Martin had told her that she could contact Dianne Lesage and Terry Dooley. She said she heard from Mr. Dooley, who inquired as to why she had not prepared multiple wills.

428Ms. Crewe-Nelson testified that she never met Mr. Williamson again after their first meeting. She emailed copies of the power of attorney for property and the will to Mr. Dooley on August 18, 2010.

429In emails exchanged with Mr. Dooley on August 20, 2010, it was understood that Mr. Williamson wanted to change his will. In the email from Mr. Dooley, he indicated that Martin had decided to “cap” his common-law wife at $1 million and have the residue of the estate pass to a testamentary trust, the purpose and objects of which would be decided by Martin. Ms. Crewe-Nelson responded by saying that she would try to get revised will instructions from Mr. Williamson and get them signed at his earliest convenience. She did not actually speak to Mr. Williamson or get any further instructions. In an email from Mr. Dooley to Ms. Crewe-Nelson dated September 1, 2010, Mr. Dooley said that what he thought Martin was looking for is that after “capping” Grace at whatever amount Martin wanted, and after other bequests, the residue would flow to a testamentary trust, the purpose of which would appear to be for the benefit of Martin’s daughter if required to assist her with an apparent disability, perhaps to fund grandchildren’s education.

430As it happened, Mr. Williamson did not want to go downtown again, and preferred to go to a lawyer closer to his home. Ms. Crewe-Nelson emailed Mr. Williamson her summary of her notes from their meeting, and a copy of the power of attorney for property and the will. She sent this on September 6, 2010.

431In her detailed memorandum, Ms. Crewe-Nelson noted that Mr. Williamson’s current symptoms were seizures and minor short-term memory loss, but noted that Mr. Williamson expressed a very realistic awareness of the potential for a sharp decline in his facilities. Ms. Crewe-Nelson noted that she gave particular attention to assessing his awareness of his assets, personal relationships, the consequences of his decisions, and his options for estate distribution. She noted that the only times Martin’s short-term memory appeared to cause him difficulty was when he attempted to name his granddaughters and his daughter’s married name. She noted that the length of the family law dispute had placed obvious strain on his relationship with his ex-wife and his daughter.

432Ms. Crewe-Nelson noted that Martin had expressed a desire to have Grace looked after as his primary concern. When asked about his daughter or grandchildren, he expressed a belief that the divorce settlement would be sufficient to meet his obligations to his daughter and her issue.

433Some other things noted in Ms. Crewe-Nelson’s detailed memorandum were:

a) Martin had to ask Grace for the spelling of her Polish name;

b) Martin did not know Star’s married name;

c) Martin had marked on the list of assets the question of how to make the will incontestable;

d) The business had a fair market value of about $1.5 million;

e) Martin established a trust for Brianna and Sophia without any capital, but he had no intention of adding any funds to the trust while either living or through his estate;

f) Martin wanted ALL to go to Grace;

g) Martin wanted to ensure that NOTHING went to his ex-wife and that any monies paid to his wife (being, he intended, $1,650,000) would be all the benefit his daughter and granddaughters would receive;

h) Grace was to be residual beneficiary with a gift over to HER children if she predeceased him;

i) After preparing a first draft of the will, Martin advised of specific bequests, namely a property in Quebec (he was not certain of the address) to his friend Lise Boudreau, and $100,000 to his secretary Yvonne Butler;

j) At no time did Martin express any physical discomfort, exhibit any seizures or other signs of impairment;

k) Martin was a very charming man who expressed a sophisticated understanding of his assets, a very strong desire to avoid payment to his ex-wife from his estate, and a desire to provide for his partner;

l) Ms. Crewe-Nelson would have no hesitation in stating her belief that he had capacity to give instructions and execute his will on August 16, 2010.

434Ms. Crewe-Nelson confirmed that Martin only knew the year of Star’s birth. He did not know her birthdate.

435Ms. Crewe-Nelson confirmed that she received communication from Dianne Lesage about getting notes from physicians regarding Martin’s mental capacity. Ms. Crewe-Nelson recollected that she had referred Ms. Lesage to something on the website of the Attorney General of Ontario. Ultimately, she provided some wording to Ms. Lesage herself.

436Ms. Crewe-Nelson provided a final report to Mr. Williamson dated November 15, 2010. She waited until after the property had been transferred. She had received a telephone call instructing her to proceed with the transfer.

437On cross-examination, Ms. Crewe-Nelson confirmed that she had only met Mr. Williamson on one occasion.

438Ms. Crewe-Nelson asked Mr. Williamson what medication he was taking. She was advised that he was taking anti-seizure medication. She was not told of any other medications. She asked no questions with respect to what he knew about the medications he was taking, or whether they had any side-effects. She did not recall that Martin had said anything about having poorly controlled diabetes. He did not tell her that he had had an MRI that disclosed that he had holes in his brain. She did not ask whether he had any other health conditions. She did not ask for or suggest a capacity assessment. She agreed that she did not have any medical training.

439Ms. Crewe-Nelson acknowledged that in her Estate Planning Review, that she prepared during her meeting with Martin, she had recorded Grace’s name as “Graciano”. She testified that Martin had hesitated for Star’s birthdate and gave the year 1972. He gave no dates of birth for Star’s children.

440Ms. Crewe-Nelson acknowledged that Mr. Williamson did not tell her about two Aston Martins that he owned. Mr. Williamson did not tell her who prepared the list of assets. Ms. Crewe-Nelson confirmed that it was Mr. Williamson who described Yvonne Butler as his secretary.

441Ms. Crewe-Nelson testified that the dispute between Mr. Williamson and his ex-wife was acrimonious. He thought she wanted too much. He was adamant that whatever Star got would be through the divorce settlement. Ms. Crewe-Nelson knew that there was no settlement in place at the time. Mr. Williamson did not say what other provisions he had made for Star except through the settlement offer.

442Ms. Crewe-Nelson acknowledged that in her detailed memorandum, she described Mr. Williamson’s belief that the divorce settlement would be “sufficient” to meet his obligations to his daughter and her issue. She acknowledged that the word “sufficient” was not the word used in paragraph 3 of the will; rather the word “adequate” was used. It was clear that Mr. Williamson did not want anything to go to his ex-wife or Star even if Grace predeceased him. In that event, the residue of his estate would go to Grace’s children.

443Ms. Crewe-Nelson testified that while she was under the impression that Star was close to her mother, she did not ask the details about Star’s relationship with Martin. She said she would be surprised to learn that Star and Martin had had a long term good relationship. She would be surprised to know that Martin saw his grandchildren and Star every weekend.

444Ms. Crewe-Nelson testified that it is not uncommon for a testator to not remember things like names. She acknowledged that this might be caused by brain tumours and medication. She acknowledged that an adequate memory is an important indicator for capacity to make a will. She acknowledged that there were a number of things that Martin did not remember – Star’s married name; the names of his grandchildren; the spelling of Grace’s name; the address of the Quebec property where Lise Borudreau lives; and Star’s birthdate.

445Ms. Crewe-Nelson maintained that there was no concern about the fact that Yvonne Butler was Martin’s right-hand person in running the business, and that she had been described as his secretary.

446Ms. Crewe-Nelson acknowledged that Martin said nothing about an RCA in the amount of $550,000, of which Star was the beneficiary.

447Ms. Crewe-Nelson acknowledged that the value of the business had been described by Martin as being $1.5 million. She said she was not concerned about the fact that it was sold for over $4 million.

448Ms. Crewe-Nelson acknowledged that she was aware that Mr. Williamson had telephoned Mr. Dooley right after the meeting, and inquired as to what his estate was worth, and then indicated that he wanted to change his will immediately.

449Ms. Crewe-Nelson testified that Martin did not advise her as to his daughter’s financial situation. He did not tell her that Star was unemployed or that she had a disability arising out of a chronic neck condition that prevented her from working.

450While Ms. Crewe-Nelson was under the impression that Star was aligned with her mother in the divorce proceedings, she acknowledged that Mr. Williamson did not tell her that. Nor did she ask him.

451Ms. Crewe-Nelson testified that it was Martin who told her he had been separated for ten years. She acknowledged that if he had been separated since 2003, he had in fact been separated for only seven years. She said this was not a concern.

452Ms. Crewe-Nelson testified that she was not told by Martin that he and Star had regular visits, lunches and exchanged many phone calls, and had regular visits with his grandchildren. She was under the impression that Martin did not want Star to have anything because the money might make it back to his ex-wife.

453Ms. Crewe-Nelson confirmed that Martin did not say how Star would be provided for. She was not aware that Martin was paying some money to his ex-wife that was actually paid to Star. She did not ask how the grandchildren would be supported.

454Ms. Crewe-Nelson confirmed that it was Ms. Lesage who asked about wording to be provided to a doctor for a letter regarding Martin’s mental capacity. She was told that the wording was required urgently. She was told that a lawyer had suggested getting the wording.

455Linda Zanardo testified. She was called to the bar in 1990, and her practice includes wills and estates. She practices in Mississauga with another lawyer.

456Ms. Zanardo testified that she has some recollection of Mr. Williamson. He had had a seizure. There appeared to be some physical disability on one side of his body. His speech was good. He was able to discuss events in his life. He was strong minded and knew what he wanted.

457Ms. Zanardo first met Mr. Williamson in August, 2010. His former matrimonial home was owned jointly with his ex-spouse. She prepared a document to sever the joint tenancy. It was a short meeting.

458Ms. Zanardo met Mr. Williamson again after Mr. Dooley told her that Mr. Williamson wanted to change his will. He did not want to go downtown to do so.

459Ms. Zanardo testified that they met in Mr. Dooley’s office on September 7, 2010. Mr. Dooley’s office is in the same building as Ms. Zanardo’s office.

460Ms. Zanardo testified that in addition to herself and Mr. Williamson, Mr. Dooley and Ms. Lesage were in attendance.

461Ms. Zanardo testified that they reviewed the terms of the earlier will. It was projected by a screen on the wall. The meeting was approximately one and one half to two hours. They went through each clause in the will, to see if Mr. Williamson was still in agreement.

462Ms. Zanardo testified that with respect to the provision dealing with Star and her children, it was clear that there would be no change. That clause reads as follows:

I HAVE MADE THIS WILL after giving careful consideration to my ex-spouse, JOSEPHINE WILLIAMSON, from whom I have a pending divorce proceeding at the time of making this my Will, my daughter, STAR WILLIAMSON, and her daughters, BRIANNA and SOPHIA. I believe I have made adequate provision for them during my lifetime and I leave no testamentary gift for them.

463Ms. Zanadro testified that she felt Martin had testamentary capacity, based on the dialogue. She testified that Martin had a good sense of his assets and worth. It was clear what he wanted.

464The main reason for change seemed to be that the residue originally to be left to Grace was very large. The question then was who would get the money. It was agreed that he would leave the money to different individuals in his life.

465Ms. Zanardo testified that Ms. Lesage and Mr. Dooley were in the meeting during the whole time it took place.

466There was some discussion as to whether there should be a trust which would give flexibility. By the next day, it was clear that Mr. Williamson did not want a trust.

467Ms. Zanardo testified that with respect to the gift to Yvonne Butler, Martin wanted to increase the amount. There was no discussion of the description of her as his “secretary”.

468Ms. Zanardo testified that most of the focus was on the amount to be given to Grace.

469With respect to the paragraph about Josephine, Star and Star’s children, there was no detailed discussion. However, there were clear and strong instructions that there should be no change. It was felt that Star did not need the money, that Josephine would provide for her. In any event, Star’s husband had money and did not need it. There was no separate discussion about the granddaughters.

470Ms. Zanardo and Mr. Williamson met again on September 8, 2010. They met in Mr. Dooley’s office. Martin was alone. It was clear he did not want a trust. Instead, he wanted to leave the residue of his estate to a number of close friends. He listed them.

471Ms. Zanardo went upstairs to her office, and came back to Mr. Dooley’s office with a completed draft. She and Mr. Williamson reviewed the draft will and it was signed. As far as Ms. Zanardo was concerned, Mr. Williamson was aware of what his assets were and their value. He had a rough idea of what each of six persons would receive as his or her share of the residue.

472Ms. Zanardo, in October, 2010, prepared a detailed memorandum of her interactions with Mr. Williamson, commencing with her meeting with him on August 18, 2010 regarding severing the joint tenancy. As far as she was concerned, Mr. Williamson was in no confusion, she could follow his instructions, and she concluded that he had capacity to make a will.

473The points made in the memorandum included:

a) After reviewing the will signed on August 16, 2010, Martin indicated that once he considered how much Grace was getting, he felt she was getting too much money;

b) Martin was struggling with the concept of “letting go” of everything he had;

c) While he needed to lessen the amount to Grace, he still struggled with who would obtain the residue;

d) He was consistently clear that Star and Josephine should absolutely get nothing – including Star’s children – his grandchildren;

e) He felt they had enough and that they were provided for by their wealthy father and he did not feel he owed them anything, nor did he want to help them – as he said “they don’t need my help”;

f) They discussed a trust arrangement for the residue, which was appealing to Martin because somehow the money would be still be his and he could tell Dianne and Terry what he wanted done with it;

g) He often struggled with names, particularly last names and spellings for the last names and sometimes had to think about certain details, but he was remarkably sharp with money calculations;

h) Physically his right side (arm) was of limited use and his vision on the right side was becoming impaired;

i) His instructions were that there should be gifts of specific amounts to people; Grace gets $500,000; she owns property in Poland and will get the Burlington property; that is what was appropriate for ten good years together; and residue in trust for Lise and her daughters in Quebec because they most needed it;

j) In the meeting on September 8, 2010, Martin was asked why on August 16th Grace got everything and now she was getting so much less, and he repeated that he almost immediately regretted the total large amount she would receive; he just did not stop to appreciate how much it all would be; he felt he just realised that Grace may only have been with him because of the money, not because she truly cared for him;

k) Certainly the $500,000 plus the two properties were enough for Grace;

l) Martin hesitated on who should benefit from all the residue; it seemed like an awful lot of money to Lise and her girls, so Dianne suggested “just leave it to four” of your closest friends;

m) The four friends would be Rick (they had fun together over the years); Cathy; Lorne; David (fishing buddy);

n) Martin said it was a lot for each person; Ms. Zanardo said it was more than those he had named (even Grace) and those he had had a more significant relationship with; the solution Ms. Zanardo suggested was to add more people and bump up specific gifts; he gave $30,000 to Terry for his dock and $50,000 to Dianne and added Lise’s two daughters to the residue, to make the division by six;

o) Martin signed it (he struggled with remembering spelling of last names), asking “I can always change it again right?”

474The balance of Ms. Zanardo’s memorandum dealt with Martin’s desire to make two additional wills that were not executed. I will discuss that in a moment.

475Ms. Zanardo testified that she had no issues regarding Mr. Williamson’s testamentary capacity, or whether there had been any undue influence.

476On September 21, 2010, she received an email from Terry Dooley regarding a new will that Mr. Williamson wanted to make. Based on the instructions, Ms. Zanardo prepared a draft. She attended at the hospital to see Martin on September 24, 2010.

477Under the proposed new will, Grace’s legacy would be reduced from $500,000 to $300,000. Lise Boudreau would receive $100,000. Grace’s daughter would receive $50,000. Each of Lise’s children would receive $25,000. Shannon Whalley would receive $25,000. Rather than six residuary beneficiaries, there would be four. They would be Rick Radvany, Cathy Kuch, Lorne Yurichuk, and David Joy.

478Ms. Zanardo testified that she discussed the proposed changes with Mr. Williamson. When asked why he wanted to reduce the amount to Grace, Martin said there had been difficulties at home and the relationship with Grace was not as good. In her notes, Ms. Zanardo recorded that Martin told her that he had realised that Grace only loved him for his money and that he does not love her anymore. He does not care about her and $300,000 is enough.

479Ultimately, it was agreed that the new will would not be signed.

480Ms. Zanardo testified that she was forwarded a letter dated October 13, 2010, signed by Dr. Whitton, indicating that Mr. Williamson’s cognitive abilities had not been affected by his illness. She put the letter in the file.

481Towards the end of October, Ms. Zanardo received further instructions that Martin wanted to change his will again. She prepared a draft and met Martin at his home on October 27, 2010. Martin had papers in front of him; he appeared physically less mobile than before. The new draft had a number of changes. All of Martin’s boats were to be transferred to Lorne Yurichuk. Yvonne Butler was to receive $250,000. Grace’s entitlement was to be reduced to $100,000. Lorne Yurichuk was to receive $150,000. The residue was reduced to three shares, and the residuary beneficiaries were to be Rick Radvany, Cathy Kuch and David Joy.

482Ms. Zanardo and Mr. Williamson chatted about the proposed changes. Ultimately, it was agreed that the new will would not be signed.

483Ms. Zanardo’s memorandum contained provisions regarding the proposed new wills in September and October, 2010. The memorandum includes the following points:

a) In Ms. Zanardo’s meeting with Martin on September 24, 2010, he expressed his disappointment in Grace’s behaviour towards him and wanted to reduce the amount to her by $200,000;

b) When asked why he was now feeling more generous towards the people who would benefit from the residue, he thought he had given more in specific gifts; when it was pointed out that the increase in specific gifts were not enough to reduce the residue, he agreed that he needed to give this more thought;

c) Martin’s memory was confused at times, in regard to details, but each time the same people were named;

d) He could not explain why he was now dividing among three people; he asked why they could not do a trust;

e) Martin agreed that he really did not know what change was necessary to make him “happy” with it;

f) When Martin repeated how disappointed he was in Grace, he had no answer when asked to explain how he calculated $200,000 to reflect that disappointment.

484Ms. Zanardo testified that she prepared some of the corporate resolutions and other documents in connection with the sale of the business. After Martin’s death, on December 24, 2010, she acted on the sale of assets and applied for the Certificate of Appointment for Ms. Lesage and Mr. Dooley under the September 8th will.

485On cross-examination, Ms. Zanardo acknowledged that Josephine was a shareholder of Star Packaging. She did not know how that might impact the negotiations between Josephine and Martin.

486Ms. Zanardo acknowledged that she had a prior business relationship with Mr. Dooley. They referred each other clients.

487Ms. Zanardo acknowledged that at some point she had received Victoria Crewe-Nelson’s detailed memorandum. She did not recall when she received it, and she did not recall reading it carefully.

488Ms. Zanardo testified that she was aware that Mr. Williamson had brain tumours in August, 2010. She did not ask what medications Mr. Williamson was taking, nor did she ask about any side effects. She was not aware that Mr. Williamson was suffering from poorly controlled diabetes. She was not aware that he had holes in his brain. She did not seek out any medical records, or speak to any of Mr. Williamson’s doctors, or obtain a capacity assessment.

489Ms. Zanardo confirmed that in the meeting on September 7, 2010, she did not ask to see Mr. Williamson alone. She did not ask Mr. Williamson any standard set of questions that she would normally ask. She said she would not do it if Mr. Williamson had already made a will quite recently. She has a standard questionnaire that she uses if there is no will.

490Ms. Zanardo testified that she would ask the names of the testator’s children. She did not recall whether she had asked for Star’s last name. She was not aware that Mr. Williamson did not know Star’s last name. She did not recall whether she asked the names of Mr. Williamson’s grandchildren.

491Ms. Zanardo testified that she did not know how Mr. Williamson knew that the children’s father was a wealthy person. She said Mr. Williamson told her he did not see his grandchildren very much.

492Ms. Zanardo testified that she would be surprised to know that Mr. Williamson saw Star practically every day. She did not ask him how often he saw his daughter or his grandchildren. She did not know that Star’s husband was unemployed. She did not ask how much, if any, support Mr. Williamson provided for Star.

493Ms. Zanardo acknowledged that the first will was put up on a screen during the meeting on September 7th. The main discussion was what to do about Grace, and what to do with the balance of the estate. She said Mr. Williamson was struggling with the issues, but was not confused. She acknowledged that she did not discuss the matter alone with Mr. Williamson on September 7th. She said they discussed it alone the next day, but acknowledged that there was considerably less time to discuss it than there had been during the previous day.

494Ms. Zanardo testified that notwithstanding that Mr. Williamson was struggling with the issues during the meeting on September 7th, she did not know that on the way into the building Mr. Williamson had asked Ms. Lesage who he should leave the money to.

495Ms. Zanardo recalled that she asked questions about Mr. Williamson’s relationship with his daughter, but that he did not want to discuss it. She did not ask whether his daughter played any role in the divorce proceedings. Mr. Williamson did not say that Star had sided with his wife.

496Ms. Zanardo testified that she was not aware that Mr. Williamson was on a cocktail of medications.

497Ms. Zanardo acknowledged that a testator had to be free of delusions that could affect his or her dispositions under a will. She testified that it was unnecessary to ask any questions about the matter.

498Ms. Zanardo testified that she did not know that some of the support payments made by Mr. Williamson were earmarked for Star.

499Ms. Zanardo testified that it was Terry Dooley who brought up the possibility of a trust for Star and her children. Mr. Williamson’s reaction was short and abrupt. He said that Star was all right. He said there was nothing wrong with her. He seemed clear about the matter.

500Ms. Zanardo recalled that there was not much discussion about the grandchildren. All she recalled was that they did not need the money. She did not ask questions about it.

501Ms. Zanardo testified that as far as she knew Mr. Williamson was involved in running the business when she met with him. She did not know that there was in fact an operating committee. She did not ask Mr. Williamson about his continuing role in the business.

502Ms. Zanardo testified that she was told that Ms. Butler had been a big support to Martin. As far as she knew, Ms. Butler was a secretary or assistant. She did not know that Ms. Butler was actually the second-in-command of the business.

503Ms. Zanardo testified that Mr. Williamson provided the names of the residuary beneficiaries, and spelled the names. Mr. Williamson said Rick Radvany’s last name was spelled “Radeany”. She did not know that Cathy Kuch was actually a cousin of Josephine. She understood Mr. Yurichuk was a fishing buddy. Later, it was not explained why Mr. Williamson wanted to eliminate him as a residuary beneficiary.

504Ms. Zanardo acknowledged that with each proposed will, it was contemplated that Rick Radvany’s share would increase.

505At one point Mr. Williamson wanted to change his power of attorney for personal care, under which Grace was designated as his attorney. Mr. Williamson wanted to add Dianne Lesage. He was not comfortable with Grace being the sole attorney. She said Mr. Williamson had become increasingly negative about Grace over a number of meetings. He said Grace was only with him for the money and that she did not really care for him. When Ms. Zanardo asked for details, Mr. Williamson described impatience about daily things. As an example, Grace was slow in getting him a glass of water. Whatever the cause, Mr. Williamson seemed very clear about it.

506Dr. Naresh Murty testified. He is a neurosurgeon.

507Dr. Murty testified that he has an independent recollection of Mr. Williamson. He met him in July, 2010, as an urgent referral to deal with a brain tumour.

508Dr. Murty testified that he met with Mr. Williamson on July 28, 2010. An MRI had disclosed a large tumour. There was another suspicious spot which disclosed another lesion. Dr. Murty recommended a biopsy. He got Mr. Williamson admitted to a hospital in Hamilton for a biopsy on July 29, 2010. He was discharged on July 30, 2010, and there was a follow up consultation on August 17, 2010.

509Dr. Murty testified that there was a progression of the tumour; it had become larger and was causing swelling of the brain, by the end of November, 2010. There was discussion with Mr. Williamson about possible surgery. If Mr. Williamson did not have surgery, he might live for perhaps no more than a few weeks.

510Ultimately, it was decided that surgery would be performed. It was performed but Mr. Williamson died on December 24, 2010.

511Dr. Murty testified that after Mr. Williamson died, he was asked to sign a letter regarding Mr. Williamson’s mental capacity. He signed a letter dated June 15, 2011. He was of the view that Mr. Williamson was alert and orientated, and was able to give informed consent about the surgery. There was no cognitive impairment, and Mr. Williamson could determine his own state of affairs.

512On cross-examination, Dr. Murty acknowledged that Mr. Williamson was taking a number of drugs. They included Decadron and Dilantin. The side effects of Decadron can include emotional instability, acute psychosis, mood swings, and personality changes. He was only aware of these medications when he saw Mr. Williamson in July. The other drugs Mr. Williamson was taking were started sometime after.

513Dr. Murty acknowledged that the angiopathic disease in the focal white matter was common in cases where there is diabetes. It is where the small lacunes were located. Dr. Murty did not focus on this.

514The main lesion was in Mr. Williamson’s right parietal lobe. There was a small lesion in his frontal lobe. Lesions in the frontal lobe can cause misidentification syndrome and behavioural changes.

515Dr. Murty testified that he would not expect someone in Mr. Williamson’s condition to suffer short term memory loss. Memory loss for Mr. Williamson could have been caused by drugs, infection, or by a steroid such as Dexamethasone.

516During his discussions with Mr. Williamson, Dr. Murty did not ask him about his family or his assets.

517Dr. Murty acknowledged that Mr. Williamson’s memory loss was consistent with his overall medical condition, including the drugs he was taking. Sexual inhibition would have been consistent with his medications. Misidentification, any paranoid beliefs, and out-of-character behaviour would have been consistent with his medical condition, including his drugs.

518Dr. Murty confirmed that his focus as a physician was to treat Mr. Williamson’s lesions. There was no discussion of Mr. Williamson’s assets or his estate, or who he provided for in his estate. He did not discuss Mr. Williamson’s relationship with his daughter and his grandchildren, or who was influencing any decision making. He is not familiar with any legal tests regarding capacity to make a will. He is not a capacity assessor.

519Rick Radvany testified. He is a vice-president of Poly-Cel Packing Products, and is married to Dianne Lesage.

520Mr. Radvany testified that he met Martin Williamson in 1985. He became a personal friend. The friendship became stronger in the last ten years of Mr. Williamson’s life. They spent time together at family functions, and on trips for fishing, skiing and vacations.

521Mr. Radvany testified that Josephine had always been part of the relationship. It changed when she and Martin separated. Josephine gave them a choice – it was either “us or them”.

522Mr. Radvany testified that he had no relationship with Star. He did not know anything about her employment, except that periodically she had been employed at Provincial.

523Mr. Radvany testified that he became aware of Martin’s brain tumour in the summer of 2010. They had returned from a fishing camp, and Martin did not feel well. He went to the hospital and became aware that he had a brain tumour. Grace called him and told him what had happened.

524Mr. Radvany testified that he knew nothing about any freezing of Martin’s assets.

525Mr. Radvany testified that he knew Martin was making a will. He did not know any specifics. In November, 2010, Martin told him he was a residuary beneficiary in the will. He did not know what that meant. There was no other discussion of the matter. Mr. Radvany testified that he did business with Mr. Williamson in September, 2010.

526Mr. Radvany testified that he visited Martin at his home in August and September, 2010. Mr. Williamson had difficulty in walking. There was no difficulty with his cognitive abilities. He would do some of the cooking. He was weakened by medication.

527Mr. Radvany testified that Martin loved his dogs. One day, the grandchildren came over and he opened up his pool for them. One of them asked which dog she could have after Martin died. Ms. Lesage commented adversely on this.

528Mr. Radvany testified that he was aware that Michael Sweetnam had threatened Martin. He said he could only testify as to what Martin had told him. Martin said he had been told by Michael “I don’t care what tumours you have – I will beat your brains in.”

529Mr. Radvany testified that he did the eulogy at Martin’s funeral. He said he did not mention Grace or Josephine’s side of the family. He was fearful of a disturbance. The minister asked if anyone else wanted to say anything but no one did. He said Josephine and Star were asked to stand by the casket, but they said no.

530On cross-examination, Mr. Radvany agreed that he could not be described as a fishing buddy of Mr. Williamson.

531Mr. Radvany testified that Mr. Williamson was a very private man. He did not talk about Star. Mr. Radvany did not know Star. He had met her on a very few occasions. He did not know how often Martin saw her or had lunch with her. He had no knowledge of Martin’s relationship with his grandchildren.

532Mr. Radvany testified that he saw Star on two occasions when he visited Martin in August and early September, 2010. He did not speak to her.

533Mr. Radvany testified that Star was worried about who would look after Martin’s dogs after Martin died. Dianne had commented that this was not appropriate. He did not recall whether Martin had commented.

534Mr. Radvany testified that he was not aware that his wife, Dianne, took an active role in changes to Martin’s will.

535Mr. Radvany testified that he was not concerned that his name was misspelled as “Radeany”. He said Mr. Williamson may not have known how to spell his name.

536Mr. Radvany testified that he was not aware that Martin subsequently became unhappy with one or more of his wills.

537Mr. Radvany confirmed that he had been told by Martin that Michael Sweetnam had threatened him. He was not present when this happened. He acknowledged that Martin was on medication at the time. He did not know what medication.

538Mr. Radvany acknowledged that during his eulogy about Martin, he did not mention that Martin had a daughter or grandchildren. He referred to Martin’s dogs as Martin’s children.

539Grace Pater testified.

540Ms. Pater testified that she met Mr. Williamson in 2000, while she was working for Mr. Dooley. She was working for Mr. Williamson on some business issues in 2001. They went out for dinner, and ultimately they fell in love. In 2002, Martin moved in with her.

541Martin bought a house in April 2002, and that is when they moved in. She testified that her own children remained in the townhouse that she formerly occupied.

542Ms. Pater testified that Star had two children and she was married to Mark Frew. She testified that in 2003 Martin predicted that Mark would be gone. They split up shortly after.

543Ms. Pater testified that Star worked at CanPaco. She said Martin was very proud of her. He boasted that Star made this sale or that sale.

544Ms. Pater testified that after the incident involving Michael, things changed. Also, Star had quit working. Her position seemed to be that now that she was married, her husband would look after her. Martin said “How could I leave Provincial to her?”

545Ms. Pater testified that Martin’s brain tumour was discovered one day when his hand was shaking and his eye began twitching. He was taken to the emergency room at the hospital after he had a grand mal seizure. The doctors found lesions in his brain.

546Martin went home from the hospital. Subsequently, he went back to the hospital. One of the nurses came to his room, took off his pants and said “what do we have here” and shaved him.

547After the seizure, Martin was advised by the doctor that he should not go to Labrador on his fishing trip. He went anyway with Grace. After he returned, a biopsy confirmed the diagnosis.

548Ms. Pater testified that Martin continued going to work until he got hospital treatment in September.

549Ms. Pater testified that when they were in Labrador, she suggested that Martin should think about his will. Upon their return, Martin had an appointment with a lawyer downtown. She drove him to the appointment. He saw the lawyer alone. Ms. Pater testified that she only spoke to the lawyer once.

550After the appointment with the lawyer, Martin told her some of the details. He said he had left Josephine and Star nothing, but he had to mention them in the will otherwise it might be invalid. He said he had left the residue of the estate to her, Grace. He said he had to call Terry and find out how much he was worth.

551Ms. Pater testified that after Martin had spoken to Terry, he told her he was going to change the will, because he had left too much for her.

552Ms. Pater testified that in August, Star would come to Martin’s home two or three hours on the days that Grace did not take Martin to work. This would have been at least a couple of times per week. She also came on the weekends with the children.

553Ms. Pater testified that she drove Martin to the appointment in September with the lawyer in Mr. Dooley’s building regarding a new will. She never asked him what was in the new will. Martin said he needed to put specific people’s names in the residue. He wanted to put David and Lorney. He also wanted to put Rick and six or seven names.

554Ms. Pater testified that Martin had decided to sell the business. There was brainstorming as to who he should approach. He had promised CanPaco the first shot. However, they did not offer enough. Ultimately, Crawford bought the business.

555Ms. Pater testified that she prepared a list of assets.

556Ms. Pater testified that she was not aware that Martin wanted to reduce the amount she would get under the will. Martin said he was disappointed in her. Once, on her return from work with client, he was upset and said she should be there. She called Ms. Lesage and asked what to do and Ms. Lesage arranged for her sister Esther to sit with Martin.

557Ms. Pater testified that she continued to visit Martin constantly and brought meals for him.

558Ms. Pater testified as to her knowledge about the alleged threat by Michael. She said Martin had made a tape for Star to listen to. Martin called Star and asked if she had listened to it. Michael came on the phone and said “Just because you have a brain tumour doesn’t mean I can’t come over there.”

559Ms. Pater testified as to her knowledge about some alleged inappropriate sexual comments made by Martin. She said she had received a call from Star who said Martin had said something that did not make sense. He had said something about his sexual organs when being examined by some nurses, and they got upset. She said Martin told her he had apologized the next day.

560Ms. Pater testified that on one occasion there was some discussion about the cottage. After the discussion and Star had left, Martin said “Can you believe Star telling the kids I’m dying – they’re running around picking out the rooms at the cottage.”

561Ms. Pater testified that on one occasion Martin told her that he was going to get Star involved in the divorce and that she would help him end it. She said there was no misidentification of Star for Josephine, and Martin did not raise his voice.

562Ms. Pater testified that on one occasion Star said “It will all come to me anyway.”

563Ms. Pater testified that while Martin was in the hospital in the last stages of his life, he told her that he was afraid that Star would find him. She promised Martin that she would not say anything.

564Star telephoned Ms. Pater and asked where Martin was. Ms. Pater testified that she knew Martin would hate her for it, but she told Star where he was. She testified that Ms. Lesage had not said Star should be prevented from seeing her father. It was Martin who did not want to talk to her.

565Ms. Pater testified that Star was not excluded from participating in the funeral.

566On cross-examination, Ms. Pater confirmed that she was on the fishing trip with Martin in Labrador. During the trip, Martin needed help tying his shoes and putting things on his fishing line.

567She confirmed that in August and September, Star would come to the house while Grace worked two or three hours during the day. Grace was out when Star was there. She said Star spent quite a bit of time with him. She would drive from Toronto. She would also be there on weekends and two or three evenings during the week. A few times, she brought dinner.

568Ms. Pater confirmed that Star did well while she was at CanPaco. She confirmed that her father was proud of her. She said she quit after eight or nine months, not two years. Ms. Pater was not aware that Star had any health problems. As of August, 2010, Martin did not believe it. Martin said she had quit her job because her husband would take care of her. Her husband lost his job after she quit. Martin said “How can I leave her Provincial when she doesn’t stick with anything?” He never had actually said he would leave it to her.

569Ms. Pater confirmed that Martin called Mr. Dooley after he made his will in August. She did not know whether Martin did not know how much his estate was worth. He said he always had his own numbers. After his discussion with Mr. Dooley, Martin told her that what he left her was too much.

570Ms. Pater testified that she was not aware that Martin could not recall his daughter’s last name, or his grandchildren’s names, or Michael’s name or the spelling of Grace’s first name.

571Ms. Pater testified that Martin was aware of what his assets were. She said it was possible that he might have thought the business was worth $1.5 million.

572Ms. Pater testified that she never heard Martin yelling at Star. There were some heated discussions, but no yelling. She never heard Martin swear and he did not yell at people. She did not overhear any yelling and swearing about the divorce settlement, and she was not present for any discussion about freezing assets.

573Ms. Pater acknowledged that Star would visit Martin in the hospital, at least twice per week for two or three hours at a time. This occurred until late October.

574Ms. Pater testified that Martin’s apology to the nurses about making inappropriate sexual comments occurred before the alleged threat from Michael. Ms. Pater confirmed that as far as she was concerned Michael did not say that he would “punch your fucking brains out”. Rather, he said “Just because you have a brain tumour does not mean I can’t come to the hospital.”

575Ms. Pater testified that Martin made the tape recording for Star after the incident involving the nurses. She was not there when the tape was made. She does not know whether Star was there when the tape was made.

576As of late November, Martin said he did not want to talk to Star. Ms. Pater did not ask him why.

577Ms. Pater testified that she first learned about Lise Boudreau in the first week of August, 2010. Martin used to go to Quebec on his own once a year.

578Ms. Pater recalled meeting Cathy Kuch at dinner and at the cottage. She said Cathy Kuch’s husband was a fishing buddy of Martin’s. He was not necessarily a close friend.

579Ms. Pater testified that Martin made his own decisions. She was surprised that Martin had asked Ms. Lesage who he should leave his money to.

580Ms. Pater testified that while Martin was in the hospital, she cooked his meals. She took care of him for six months before he died. As far as she was concerned, she was a devoted and loving partner.

581Ms. Pater was shown the lawyer’s notes, in which it is suggested that Grace was only with Martin because of his money, and that she did not truly care for him. While testifying, she became somewhat emotional and said that was simply not right. She was shown some notes that suggested that Grace had been impatient and harsh with Martin. She said perhaps she had been rushing, and it was the only thing she could think of. She said she remained devoted and loving to Martin throughout.

582Ms. Pater testified that she was paid a modest amount by Mr. Dooley for looking after the various properties after Martin’s death and before. She did not know when the last property was sold.

583Dr. Anthony Whitton testified. He is a radiological oncologist. He works at the Juravinski Cancer Centre in Hamilton. He has no independent recollection of Martin Williamson. He was part of a team who was treating him.

584Dr. Whitton acknowledged that he had signed a letter regarding Martin’s mental capacity. He did not recall who had asked him to sign the letter. He testified that when he meets a patient, his duty is to ensure that that patient can consent to treatment. He concluded that Martin Williamson could make decisions regarding his health care.

585On cross-examination, Dr. Whitton confirmed that his concern is with respect to radiation treatment. It is not his function to prepare a detailed cognitive assessment, and he did not do so. He agreed that there had been no discussion of Mr. Williamson’s assets, his relationships, or anything else other than something relevant to Mr. Williamson’s treatment.

586Terry Dooley testified. He has been a chartered accountant for 44 years.

587Mr. Dooley testified that Grace Pater had been employed by his firm. She looked after bookkeeping for small clients. Through Mark Frew, she became involved in assisting in Martin’s business.

588Mr. Dooley testified that after Martin and Josephine separated, he became involved in assisting Martin. Originally, Martin had a “collaborative” lawyer. Things did not progress very far. In 2004 or 2005, Martin retained Stephen Grant, after which Mr. Dooley became more actively involved. The issues were property division and spousal support.

589Mr. Dooley testified that up to the point where Martin was diagnosed with a brain tumour, Martin could be described as arrogant, condescending, a delegator, strong minded, opinionated, funny, magnanimous, a woman-magnet, and demanding. He said Martin had solid business relationships. There was strong customer and supplier loyalty, and employee loyalty. One always knew where one stood with him.

590Mr. Dooley testified that his only recollection of Star up until Martin’s diagnosis was based on a discussion while they were returning from the arbitration proceedings before Mr. Bastedo. It has been disclosed that Josephine was making provision for Star. Martin said “There is not a drop of my blood in Star’s body.”

591Mr. Dooley testified that he found out about Martin’s diagnosis after he was told that Martin had had a seizure. He was told that Martin was having a biopsy. He was also told that Martin wanted him to be a power of attorney.

592Mr. Dooley testified that he knew that Martin had gone to Victoria Crewe-Nelson for the purpose of preparing a will. He testified that Ms. Crewe-Nelson sent him a copy of the will and a power of attorney. He said Martin called him and wanted to have lunch to talk about his estate. They did so.

593Mr. Dooley testified that at some point they met and discussed what would be in the residue of Martin’s estate and the possibility of a testamentary trust.

594Mr. Dooley testified that Philip Epstein, Josephine’s family law lawyer asked him one day what was in Martin’s will. He said Star had entered into the discussions about a settlement. Epstein said “If there is not something for Star, you and I will be here for the rest of lives.”

595Mr. Dooley testified that he had discussions with Martin about the possibility of a trust for the benefit of his daughter and his grandchildren. During the meeting with Linda Zanardo on September 7, 2010, Martin made it clear that that was not going to happen. His position was that Star had enough, and that she did not have a disability. He was adamant.

596Mr. Dooley said that those present at the meeting went through the first will paragraph by paragraph. He thought the matter was wrapped up. He was wrong.

597Mr. Dooley was not present during the meeting on September 8th between Martin and Linda Zanardo. He became aware of the second will dated September 8, 2010.

598Mr. Dooley testified that he knew about Mr. Williamson’s friend in Quebec. He did not know her name.

599Mr. Dooley knew Yvonne Butler as the General Manager of Provincial. He said she knew and did everything.

600Mr. Dooley testified that he knew Grace, but did not know her children.

601With respect to the residuary beneficiaries, Mr. Dooley did not know any of them except Mr. Yurichuk, whom he had met on an ice fishing trip.

602Mr. Dooley was involved in the sale of the business. He said there were four strategic purchasers, one potential investment purchaser, and one “I need a job” purchaser. Prior to September 20, 2010, he had potential offers of between $2.4 million and $2.6 million.

603Someone from Crawford Packaging called. Martin’s position was that if they did not offer $4 million, they should not bother making an offer.

604Part of the difficulty was that negotiations were for the sale of both Provincial Papers and Star Packaging. Martin did not own the shares of Star Packaging. The proposed separation agreement contemplated the sale of Star Packaging’s shares to Martin’s holding company. The negotiations involving the separation agreement were dragging on, and they had to be nailed down.

605The separation agreement was ultimately signed on December 22, 2010. Ms. Lesage and Mr. Dooley signed it on Martin’s behalf as his attorneys. The business could not be sold until the separation agreement was signed. After it was signed, the business was sold. The purchase price was somewhat less because Crawford agreed to protect employees.

606Mr. Dooley was asked about Martin’s estimate of $1.5 million as the fair market value of the business. He said this would not have been unreasonable, based on discussions he had had with Bonnie Prusky, who had done an evaluation of the business. He thought Ms. Prusky’s values were too high.

607Mr. Dooley testified as to the RCA under which Star was a beneficiary. He said it is a financial instrument similar to an RRSP. It was put in place as a vehicle to buy a salmon lodge in Labrador. While it was not put in place to benefit Star, Star was named as the beneficiary. The beneficiary is irrevocable.

608Mr. Dooley testified that the RCA became a negotiating point in the separation negotiations. Martin said he did not want Star to be the beneficiary under the RCA. Mr. Dooley made inquiries as to whether it could be unwound. He discovered that Star was the irrevocable beneficiary.

609Mr. Dooley testified that once he discovered that Star was the irrevocable beneficiary, he spoke to Martin as to whether the RCA could be used to satisfy Josephine’s position that there should be something for Star on Martin’s death. Ultimately, that was what happened.

610Mr. Dooley testified that there had been an insurance policy under which Star was the beneficiary. At Martin’s insistence, the beneficiary was changed so that the estate was the beneficiary rather than Star.

611Mr. Dooley testified that Philip Epstein had filed a motion to freeze Martin’s assets. Martin was upset.

612Mr. Dooley confirmed that Martin was not doing anything operational in the business after his diagnosis. He could not drive and he could not make calls. He said Yvonne Butler was meeting him every day. There was in place an operational committee, that was announced at the meeting on September 6, 2010.

613Mr. Dooley testified that he never said anything to Martin to cause him to prepare his will in any particular fashion. He had suggested a testamentary trust for Star and her children, but Martin simply did not want to do it.

614On cross-examination, Mr. Dooley testified that after Martin’s diagnosis, he saw him about once a week and he was on the phone with Martin daily.

615Mr. Dooley testified that he knew nothing about Martin’s relationship with Star, either before or after Martin’s diagnosis. He did not know anything about Martin’s relationship with his grandchildren. He confirmed that Star was the beneficiary under the RCA as of 2006. He did not know how often Martin saw Star after 2006. As of August, 2010, he was aware that Martin wanted Star to get nothing. While Mr. Dooley suggested a testamentary trust, Martin was adamant that that would not happen. He thought at one point Martin was warming up to the idea but it did not happen. Martin did not believe Star had a disability.

616Mr. Dooley acknowledged that Martin was a private person. He kept things to himself. He did not tell Mr. Dooley that he was spending time with Star, while he was adamant that he would keep Star out of his will.

617Mr. Dooley testified that his statement that Martin had said there was not a drop of his blood in Star’s body was in the context of a discussion of whether Star had a disability.

618Mr. Dooley was asked about the email in which it was suggested that Martin was being “bombarded” with letters from Star and Josephine. He said he actually only saw one letter from Josephine and one email from Star.

619Mr. Dooley testified that he was aware of the tape recording Martin made for Star on October 7, 2010. He said his perception was that Martin wanted Star to be more like Dianne. He did not know what expectations Martin had for his daughter. He obviously wanted her to be strong.

620Mr. Dooley testified that he was aware that Star saw Martin three or four times a week. He was not aware that she was on the phone to him three or four times a day.

621Mr. Dooley acknowledged that Martin’s assets were never in fact frozen. He acknowledged that it was not Star who was trying to freeze any assets. He testified that he would not be concerned if Martin reacted by yelling at Star as if she were Josephine.

622Mr. Dooley testified that at the meeting on September 7, 2010, the figure of $1.5 million for the business only related to Provincial Papers.

623Mr. Dooley testified that he was aware that Martin’s perception was that Grace was not taking care of him. He thought it was an emotional lashing out on Martin’s part. He said he discussed it with Martin once, and told Martin that a caregiver is a victim. He said he never asked Martin if his perception was reasonable.

624Mr. Dooley testified that he was not aware that Martin had asked Dianne who he should leave the residue of his estate to. He said he was not aware that Rick Radvany’s last name was misspelled, nor was he aware of Rick’s last name.

625Mr. Dooley testified that he was involved in the subsequent attempts to change Martin’s will. He said Ms. Lesage would communicate the changes to him, and he assumed that Ms. Lesage got them from Martin alone.

626Mr. Dooley testified that he did not ask Martin why he wanted to make the changes. He thought Mr. Williamson would increase the residual beneficiaries, and he was concerned when he discovered that they were proposed to be reduced.

627Mr. Dooley confirmed that he was aware of Ms. Lesage’s efforts to obtain letters from various doctors about Martin’s capacity.

628Mr. Dooley was the one who arranged to change the beneficiary of the life insurance policy from Star to the estate. He did not ask Martin why he wanted to do this.

629Mr. Dooley confirmed that the RCA did not become a bargaining chip in the separation negotiations until after the September will had been executed. He confirmed that Star would be the beneficiary of RCA in any event no matter what was in the separation agreement.

630Dr. Kenneth Shulman testified. He is a well-known psychiatrist at Sunnybrook Health Sciences Centre, and he is the Chair in Geriatrics Psychiatry and a professor in the Department of Psychiatry at the University of Toronto. He prepared a retroactive assessment of testamentary capacity of Martin Williamson, dated April 23, 2012.

631Dr. Shulman expressed the opinion in his report, and confirmed in his viva voce testimony, that Mr. Williamson was competent to make and execute his wills in August and September, 2010.

632Dr. Shulman reviewed, by way of background, much of the same material that Dr. Herrmann reviewed. The material did not include, however, the examinations for discovery or any other outline of Star’s evidence.

633Dr. Shulman, in his report, indicated that he used as his reference point the traditional criteria for testamentary capacity taken from an 1870 English case, as follows:

a) Understanding the nature of the act of making a will and its consequences;

b) Understanding the extent of one’s assets;

c) Comprehending and appreciating the claims of those who might expect to benefit from the will, both those to be included and excluded;

d) Understanding the impact of the distribution of the assets of the estate;

e) That the testator is free of any disorder of mind or delusions that influence the disposition of assets.

634Dr. Shulman indicated that he also took into account certain other features, as follows:

a) Rationale for any dramatic changes or significant deviations from the pattern identified in prior wills or previous consistently expressed wishes regarding disposition of assets;

b) The testator’s understanding and appreciation of any conflicts or tensions in his or her environment;

c) The appreciation of the consequences and impact of a particular distribution, especially if it deviates from or excludes “natural” beneficiaries, such as close family members or spouses;

d) Clarification of concerns about potential beneficiaries who are excluded from the will or bequeathed lower amounts than might have been expected – specifically ruling out the presence of a delusion, overvalued idea or cognitive impairment that influences the distribution;

e) Evidence of behavioural or psychiatric symptoms at the time of the execution of a will, for example, behavioural and psychological symptoms of dementia such as apathy, agitation, impulsiveness, disinhibition, aggression, hallucination and delusions;

f) Evidence of an ability to communicate a clear, consistent wish with respect to the distribution of assets; for example, frequent will changes are sometimes made in a desperate attempt to garner care, support or comfort at a time when the testator feels increasingly vulnerable or threatened.

635Dr. Shulman noted that Mr. Williamson was admitted to hospital on July 20, 2010 as a result of a seizure. Mr. Williamson was diabetic and suffered from hypertension. At the time of his consultation in July, he was placed on a steroid (Decadron) to reduce brain edema and was treated with Diazepam and Dilantin. The CT scan showed a two centimetre parietal mass considered most likely to be a brain tumour with associated swelling. Hospital notes suggested that Mr. Williamson was alert and fully oriented. There was evidence of visual field loss in the left hemi-field. MRI brain scan revealed multiple right matter lesions and a 2.8 centimetre lesion in the right parietal white matter as well as a small cortical enhancing lesion.

636On August 19, 2010, Mr. Williamson was assessed at the Juravinski Cancer Centre. Pathological examination confirmed the brain tumour to be a glioblastoma multi-forme, a very malignant form of brain tumour.

637Mr. Williamson’s MMSE score was 29/30, and his Karnovsky score was 90. His cranial nerves were intact as were his motor functions. Sensory deficits were noted on the left side in both upper and lower limbs. The plan at that time included a six-week course of radiation with Temozolomide.

638On August 26, 2010, Dr. Hirte noted some unsteadiness and lack of coordination. However, there was no mention of any cognitive or mental status concerns.

639Mr. Williamson was reassessed on September 14, 2010, shortly after he executed his second will on September 8, 2010. The only reference to his mental state notes that he is “alert and oriented”.

640In October, Mr. Williamson was admitted to the Juravinski Hospital rehabilitation program. It was noted that Mr. Williamson could make up his own mind, and did not advise for or against alternative health products while on radiotherapy.

641On November 25th, Mr. Williamson was assessed again by Dr. Whitton. He was in bed all of the time and unable to stand without assistance. He was clearly worse from a neurological perspective. A repeat MRI scan of his brain showed further swelling and shifting of the brain from the midline. The findings in November were consistent with the progression of his metastatic brain disease but there was no documentation of his mental state.

642Dr. Shulman noted that there were three brief letters from physicians who cared for Mr. Williamson. He took the letters to be a general confirmation that Mr. Williamson was mentally stable and grossly cognitively intact in September and October, 2010.

643Dr. Shulman took into account Victoria Crewe-Nelson’s detailed memorandum on September 6, 2010 regarding her discussions with Mr. Williamson prior to the execution of the will on August 16, 2010. Mr. Williamson was able to give her an accurate description of his medical status and his very realistic awareness for the potential for a sharp decline in his faculties due to his condition or his treatment. It was noted that Mr. Williamson asked articulate questions throughout the process, expressed a keen understanding of his assets, family history and current personal relationships. The only time his short term memory appeared to cause him difficulty was when he attempted to name his granddaughters and his daughter’s married name.

644Dr. Shulman noted as an important point Mr. Williamson’s consistent wish to avoid payment to his ex-wife or his daughter and granddaughters from his estate. Ms. Crewe-Nelson concluded that she would have no hesitation in stating her belief that Mr. Williamson had capacity to give instructions and execute his will on August 16, 2010.

645Dr. Shulman noted that almost immediately after the execution of the will on August 16th, Mr. Williamson had second thoughts regarding the amount he had assigned to his spouse Grace Pater. It was decided that it would be best to obtain a local lawyer, Linda Zanardo, to review his wishes.

646Dr. Shulman noted that Ms. Zanardo also provided detailed and exemplary documentation of her discussions with Mr. Williamson, Terry Dooley and Yvonne Butler, his secretary. She met with Mr. Williamson on August 18, 2010, and then again on September 7, 2010.

647Ms. Zanardo came to the conclusion that Mr. Williamson was competent to give instructions for his will. She noted that he was struggling with the concept of letting go of everything he had. She noted his awareness of his life situation and his assets. She noted only minor confusion with respect to names, spellings and addresses. Mr. Williamson concluded that $500,00 and the Burlington property as well as property Grace owned in Poland would be appropriate for ten good years together.

648Dr. Shulman noted that the September Will did have significant changes from that executed on August 16th. Dr. Shulman did not find any evidence that the distribution was influenced by delusions or any other abnormalities of mental state.

649Dr. Shulman noted that Mr. Zanardo had subsequent discussions that took place on September 24, 2010 and October 21, 2010 with respect to the possibility of further decreasing Grace’s bequest. It appeared that he had become increasingly dissatisfied with his relationship with Grace and her attitude towards him. The extent of his vacillations did seem to increase in October and Ms. Zanardo expressed concerns about this, yet each time she could say that she concluded that he was of sound mind. Dr. Shulman, in his report, stated that the discussions that took place with Ms. Zanardo in October did create some concerns from a clinical perspective that Mr. Williamson’s judgment was beginning to be compromised. However, medically there were no correlates that would indicate that he was clinically impaired. The concerns did not affect the observations that were made in August and early September, 2010 when the two wills were executed.

650In conclusion, in his report, Dr. Shulman stated that despite the presence of a malignant brain tumour, the medical evidence was very consistent that in August and September, 2010 there were no clinically significant findings with respect to impairment of cognition or mental state that might impact on Mr. Williamson’s testamentary capacity. It was only later in October 2010, when Mr. Williamson began to vacillate excessively about the estate distribution without as sharp a rationale that some concerns regarding capacity emerged.

651In his viva voce testimony, Dr. Shulman noted that there was only one screening test, the MMSE, on which Mr. Williamson scored 29/30. He said this is not particularly probative. In totality, there was no real concern other than an indication of minor cognitive impairments. He acknowledged that diabetes and hypertension can be relevant, but there was no evidence showing any significant impairment as a result.

652Dr. Shulman considered whether Mr. Williamson had been free of delusions that might have influenced any dispositions. He concluded there were none here.

653Dr. Shulman considered Dr. Herrmann’s assessment. He noted that that assessment included an examination of the transcripts of the examination for discovery of Star; the apparent identification of Star with her mother; and an apparent belief on the part of Martin that Star had frozen his assets.

654Dr. Shulman considered the changes in Mr. Williamson’s will, and concluded that they were based on personal choice rather than any confusion. He noted that Mr. Williamson had been consistent in the various wills that there should be no benefit to his wife, his daughter and his grandchildren.

655Dr. Shulman concluded that the notes of Ms. Crewe-Nelson to the effect that Mr. Williamson showed mild cognitive impairment including confusion about names, were not significant in the overall scheme of things. He concluded that the notes of Linda Zanardo were to the same effect.

656Dr. Shulman considered the last two draft wills that were not signed. In his view, they reflect a progression of the brain tumour, which show that Mr. Williamson was losing his mental capacity.

657Dr. Shulman was of the view that Mr. Williamson’s diabetes did not contribute to any impairment.

658Dr. Shulman’s conclusion was that Mr. Williamson had the capacity to make the wills executed in August and September, 2010.

659On cross-examination, Dr. Shulman agreed that the Mini-Mental Examination does not test for executive level thinking.

660Dr. Shulman acknowledged that the various letters signed by doctors regarding Mr. Williamson’s mental condition were misguided attempts to help, and were in fact not helpful. He did not contact the doctors himself. He agreed that they reflected only brief interactions with Mr. Williamson, and represented clinical impressions only.

661Dr. Shulman was not aware that Ms. Lesage’s husband was a residuary beneficiary.

662Dr. Shulman acknowledged that he did not speak to Ms. Crewe-Nelson, and he did not know whether Ms. Crewe-Nelson knew the legal test for capacity.

663Dr. Shulman acknowledged that he was not aware that Martin did not know his daughter’s birthdate. He was also not aware that Martin did not know his son-in-law’s last name. He also did not know that Martin did not know how to spell Grace’s first name. He did not know that Martin’s “secretary”, Yvonne Butler, was actually the second-in-command of the business. He was not aware that Martin did not tell either lawyer about an RCA worth $550,000, or that Martin owned two Aston Martins, or that Martin thought his business was worth $1.5 million.

664Dr. Shulman was asked whether this information might be troubling. He said that these reflect minor cognitive impairment and are simply minor errors.

665Dr. Shulman testified that it would be reasonable for a lawyer to accept a testator’s statement at face value, that Star was adequately provided for during the testator’s lifetime. He did not know whether Ms. Crewe-Nelson made any inquiries about Star’s actual circumstances. He acknowledged that if this reflected a delusion, it would be a factor in assessing Mr. Williamson’s capacity. He acknowledged that one could not know whether it was a delusion unless one asked.

666Dr. Shulman was not aware that immediately after the meeting to prepare Mr. Williamson’s first will, he called his accountant to find out the value of his estate. He acknowledged that this could mean the testator was unaware of the value of his estate.

667Dr. Shulman testified that the issue of whether there is a delusion is a difficult matter. A delusion reflects a false belief. There must be some basis for pursuing the issue. There needs to be at least some suspicion.

668Dr. Shulman testified that Mr. Williamson had been consistent in the position that his wife and daughter and grandchildren should get nothing. He did not know whether the lawyers had explored the issue of whether they were being provided for by a wealthy father. He did not know that Star and the supposedly wealthy father were divorced.

669Dr. Shulman was not aware that some of the support payments made to Josephine were going to Star.

670Dr. Shulman was not aware of Star’s actual medical condition. Martin apparently refused to believe that she was disabled. Dr. Shulman had no knowledge of what Martin actually knew.

671Dr. Shulman was advised that there was tension in the relationship between Martin and his daughter. He was not made aware that they actually saw each other every day.

672Dr. Shulman was aware that Martin was disappointed with Grace. He was advised that he thought Grace was only with him for the money and did not really love him. He was not aware that Grace was actually looking after him until he died.

673Dr. Shulman said that as far as he was concerned a testator is entitled to make unreasonable judgments, as long as they do not flow from a delusion.

674Dr. Shulman acknowledged that poorly controlled diabetes can lead to cognitive impairment and diminished cognitive capacity, particularly in combination with drugs.

675Dr. Shulman acknowledged that the various reports do not deal with the medications Martin was taking.

676Dr. Shulman acknowledged that if the court accepts Star’s evidence, it cannot be concluded that Mr. Williamson had capacity to make a will. Misperceptions on the part of Mr. Williamson could affect his ability to make a proper disposition.

Submissions

677Mr. Sidlofsky, counsel for the plaintiff, Star Sweetnam, submits that I should hold that Martin Williamson did not have testamentary capacity at the time he made either of his wills in August and September, 2010.

678Counsel submits that while the onus of proof may shift depending on whether “suspicious” circumstances are present, in the final analysis the onus is on the propounders of a will to prove that the testator could do the following:

a) Understand the nature and effect of making a will;

b) Recollect the nature and extent of his property;

c) Understand the extent of what he was giving under the will;

d) Remember the persons he might be expected to benefit under his will; and

e) Where applicable understand the nature of the claims that may be made by a person he is excluding from the will.

679The propounders must also satisfy the court that the will is not the product of an “insane delusion”. An insane delusion is a belief whose impossibility or extreme improbability is something no one in their senses could believe.

680Where no suspicious circumstances are present, the propounders of a will are assisted by a presumption of knowledge, approval and testamentary capacity. Where suspicious circumstances are present, the onus falls upon the propounders to negative the suspicion.

681Counsel submits that in this case there is evidence that Mr. Williamson could not recollect the nature and extent of his property; understand the extent of what he was giving under his wills; remember the persons whom he might be expected to benefit; and understand the nature of the claims that might be made by his daughter.

682Furthermore, there is evidence that Mr. Williamson was suffering from what can only be described as delusions about Josephine, Michael Sweetman, Grace Pater, and his daughter Star. Those delusions affected Mr. Williamson’s testamentary dispositions.

683Counsel submits that on the evidence here, there are suspicious circumstances. They include Mr. Williamson’s memory loss; his inability to understand the value of his business; his confusion at the time he was making both wills; his delusions; his failure to understand the nature of claims that Star had; his misidentification of Star as Josephine; his inability to understand that Star had a disability; and the nature of the involvement of Dianne Lesage and Terry Dooley in the making of Mr. Williamson’s wills.

684Counsel submits that the medical evidence tendered on behalf of the plaintiff is compelling, and supports the conclusion that Mr. Williamson lacked testamentary capacity. Dr. Herrmann was clearly of that opinion, and his opinion was supported by the entire background of the matter, including the evidence of Star Sweetnam herself. Dr. Shulman, on the other hand, did not take into account the evidence of Star Sweetnam, the medications Mr. Williamson was taking, and the effect of his diabetes. Further it is unlikely that he took into account the errors made by Mr. Williamson in giving instructions to his solicitors.

685The other doctors who provided letters purporting to support Mr. Williamson’s testamentary capacity were clearly unhelpful, as Dr. Shulman himself acknowledged.

686Counsel submits that the evidence as to the preparation of the wills themselves casts doubt on Mr. Williamson’s testamentary capacity.

687For example, during his meeting with Ms. Crewe-Nelson, Mr. Williamson did not recall Star’s last name; he did not recall Michael Sweetnam’s name; he had difficulty remembering the names and the birthdates of his grandchildren, and he spelled one of his grandchildren’s names wrong; he did not tell Ms. Crewe-Nelson about the RCA; he told her he had no insurance, even though he did; he significantly undervalued his business; he did not know the spelling of Grace’s proper name; and he referred to Yvonne Butler as his secretary.

688When Mr. Williamson met with Ms. Zanardo to draft his second will, the same errors were made plus some more. For example, he made Ms. Lesage’s husband Rick Radvany a residuary beneficiary, but he spelled his last name as “Radeany”; and he made Sylvie and Josee LeBlanc residuary beneficiaries, but he spelled their names wrong and there was no evidence that he had any relationship with them.

689Counsel submits that both solicitors failed to do the kind of in-depth interview that was necessary in order to properly assess whether there were concerns about Mr. Williamson’s testamentary capacity.

690Mr. Sidlofsky submits that undue influence was exercised here, such that Mr. Williamson’s wills must be considered to be invalid.

691Counsel submits that a person with diminished capacity, or who is cognitively impaired, will be highly vulnerable to undue influence. That is clearly the case here.

692Second, it is clear that Dianne Lesage disliked Star, and this was clear from her evidence at trial.

693Third, Ms. Lesage rapidly insinuated herself into Mr. Williamson’s life after his diagnosis.

694Fourth, Mr. Williamson asked Ms. Lesage to whom he should leave his residue. She told him to leave it to four or five of his friends, and that is exactly what he did. When doing so, he named as one of the residuary beneficiaries Ms. Lesage’s husband, Rick.

695Fifth, Ms. Lesage is strong-willed and assertive. Mr. Williamson involved her precisely because she was tough. She is the type of person to assert her influence on Mr. Williamson.

696Sixth, with each new draft of the will, Ms. Lesage’s husband stood to receive more of the estate.

697Seventh, after the September will had been prepared Ms. Lesage took steps to get language for doctors’ notes to assist in having the will hold up in court.

698Counsel submits that Mr. Dooley’s role cannot be ignored. He worked with Ms. Lesage in facilitating changes to the will. He never probed whether Mr. Williamson was pursuing changes of his free will. As an attorney, he owned a fiduciary duty to Mr. Williamson. He failed to make inquiries as to whether Mr. Williamson was being unduly influenced.

699Mr. Sidlofsky submits that Star has a valid claim based on proprietary estoppel.

700In order to make out a valid claim for proprietary estoppel, three elements must be established:

a) The owner of property induces, encourages or allows the claimant to believe that he or she will enjoy some right or benefit over property;

b) In reliance on his or her belief, the claimant acts to his or her detriment to the knowledge of the owner; and

c) The owner then seeks to take unconscionable advantage of the claimant by denying him or her the right or benefit which he or she expected to receive.

701If these elements are established, the court has a broad discretion to fashion an appropriate remedy.

702In this case, the evidence establishes that Mr. Williamson encouraged Star to believe that she would inherit his estate. She was encouraged to work in the family business. He told her that there was no need to attend university because she would inherit the business.

703Counsel submits that Star relied to her detriment on Mr. Williamson’s assurances. She did not go to university because it was clear that she was going to inherit and run the business. At the end of the day, she has no education or training in any field, and has no means of supporting herself.

704Clearly, it would be unconscionable to allow Mr. Williamson’s estate to disregard the promises made to Star.

705Mr. Sidlofsky submits that Star has a valid claim as a dependant under the Succession Law Reform Act.

706Under s.57 of the Act, a “dependant” includes a child of the deceased to whom the deceased was providing support or was under a legal obligation to provide support immediately before his or her death. Pursuant to s.58 of the Act, where a deceased has not made adequate provision for the proper support of a dependant, the court may order that such provision as it considers adequate be made out of the estate.

707Counsel submits that support provided by the deceased need not be direct financial support to qualify as support for the purposes of the Succession Law Reform Act.

708Counsel submits that if the requirements of the Act have been satisfied, a dependant should receive a fair share of family wealth. In making that determination, the court is to consider a number of factors.

709Counsel submits that Star was someone to whom Mr. Williamson was providing support immediately before his death. That support was being provided through the spousal support of $11,000 per month that Mr. Williamson was paying to Josephine. On the evidence, a significant portion of that money was being used to pay for Star’s needs.

710Clearly, Mr. Williamson made inadequate provision for Star’s proper support on his death. He made no provision for her at all under his wills. The only asset she received was the RCA, and then only because the beneficiary designation was irrevocable.

711The RCA was worth approximately $550,000 on Mr. Williamson’s death. Any funds withdrawn from it are taxable in Star’s hands. She has been forced to withdraw money from it, so that it is now worth about $400,000.

712At present, Star is living on the child support payments she receives from her ex-husband, Mr. Frew, in the amount of $7,500 per month, together with financial assistance from Josephine. Star’s budget shows that she has monthly expenses of $11,845 per month. The child support payments will end as soon as the children move out or go to university.

713In considering what is a fair share of family wealth, the court is entitled to look both at the claimant’s needs and whether she or he has a moral entitlement. On both grounds, Star’s claim is a strong one.

714Counsel submits that a fair share of family wealth in this case would constitute the whole of the remaining estate, excluding the properties in Burlington and Poland which Grace received by right of survivorship.

715Mr. Hull, counsel for Dianne Lesage, submits that all of Star’s claims should be dismissed.

716Counsel submits that based on the evidence as a whole, it must be concluded that Mr. Williamson had testamentary capacity when he made his wills in August and September, 2010.

717Mr. Hull submits that while the person propounding the will has the legal burden of proof with respect to due execution of the will, knowledge and approval of its contents, and testamentary capacity, the propounder of the will is aided by a rebuttable presumption. On proof that the will was duly executed with the requisite formalities, after having been read over to or by a testator who appeared to understand it, it is generally to be presumed that the testator knew and approved of the contents and had the necessary testamentary capacity.

718If there is evidence of suspicious circumstances which, if accepted, would tend to negative knowledge and approval or testamentary capacity, the legal burden reverts to the propounder. The burden of proof is proof on a balance of probabilities.

719Notwithstanding the existence of suspicious circumstances, the burden of proof where there is an allegation of undue influence remains on those challenging the will.

720In this case, the propounders of the wills have proven that they were duly executed with the requisite formalities. Thus, in the absence of suspicious circumstances, it would be presumed that Mr. Williamson knew and approved of the contents and had the necessary testamentary capacity.

721Counsel submits that there are no suspicious circumstances here. Each of the circumstances alleged by Star to be suspicious are, having regard to the evidence as a whole, adequately explained and are not, in fact, suspicious.

722In the alternative, having regard to the evidence as a whole the propounders of the will have proven, on a balance of probabilities, that Mr. Williamson had testamentary capacity when he executed his August and September wills.

723Counsel submits that based on the evidence as a whole, Mr. Williamson understood the nature of the wills and their effect; understood the extent of the property of which he was disposing; comprehended and appreciated the claims to which he ought to have given effect; that no disorder of the mind prevent the exercise of his facilities; and no insane delusion influenced his will in disposing of his property. The fact that Mr. Williamson had a brain tumour is not determinative.

724It is clear that during the period of time when his wills were being executed, Mr. Williamson was actively engaged in negotiations regarding his separation agreement with Josephine and in the sale of his businesses. During that time, he made complex and strategic decisions.

725Counsel submits that the court should accept the expert evidence of Dr. Shulman, that there were no real concerns in respect of Mr. Williamson’s mental condition other than minor cognitive impairment. Furthermore, two lawyers were in a position to assess Mr. Williamson’s testamentary capacity, and both concluded that he was capable of executing the wills in August and September, 2010. Both solicitors were very experienced in preparing and drafting wills.

726Counsel submits that the letters obtained from the various doctors are confirmatory of Mr. Williamson’s testamentary capacity.

727It is submitted that the audio tape prepared on October 7, 2010 is also confirmatory of Mr. Williamson’s state of mind. Mr. Williamson urged Star to be a strong woman. He was clearly aware that he was speaking to his daughter, and there were no signs of rage.

728Counsel submits that Mr. Williamson demonstrated sufficient knowledge of his assets and their values. In the circumstances, he was reasonably accurate when he valued the business at $1.5 million, given Josephine’s ownership of one half of the businesses, and valuations available at that time. Both lawyers were satisfied that he understood the nature of the assets and their value.

729Counsel submits that Mr. Williamson was clearly able to comprehend and appreciate the claims to which he ought to have given effect. A specific paragraph was inserted in each will that disclosed, without question, that he understood the nature of the claims that could be made by Josephine, Star and his grandchildren, and stated unequivocally that he had made adequate provision for them during his lifetime and for that reason left no testamentary gift for them.

730Counsel submits that the possibility of creating a testamentary trust in favour of Star and her children was raised with Mr. Williamson and he clearly rejected the idea.

731Counsel submits that Mr. Williamson had a cogent rationale for the gifts made in his wills and for the exclusion of Josephine, Star and her children.

732Lise Boudreau was Mr. Williamson’s lover in Quebec, and Mr. Williamson was of the view that Lise and her daughters were those who needed the money the most.

733Yvonne Butler was Mr. Williamson’s right-hand person in the operation of the business, and she needed over $200,000 to pay off her mortgage.

734Grace Pater was Mr. Williamson’s common-law spouse. Madelaine and Monica Golec are her daughters.

735There is a clear rationale for gifts to these people, and the amounts and nature of those gifts were for Mr. Williamson to determine.

736Ms. Lesage’s gift of $50,000 was intended as a token of Mr. Williamson’s appreciation and her friendship. The gift of $30,000 to Terry Dooley was intended as a token of his friendship, and to assist Mr. Dooley with his dock. There is a clear rationale for these gifts.

737Counsel submits that there is a clear rationale for the residuary gifts reflected in the September will.

738Rick Radvany was considered to be a true friend by Mr. Williamson. Cathy Kuch was the wife of a friend of Mr. Williamson’s, and she is Josephine’s cousin. Lorne Yurichuk was a long-time friend and fishing buddy of Mr. Williamson’s. David Joy was a fishing buddy, and was hired by Mr. Williamson to be the manager of a salmon lodge owned by Mr. Williamson. Ms. Pater testified that Mr. Joy called Mr. Williamson on the phone after Mr. Williamson became ill. Sylvie and Josee LeBlanc are the daughters of Lise Boudreau, Martin’s Quebec lover.

739Counsel submits that there was a clear rationale for excluding Josephine from the wills. They had been separated for seven years, and they were involved in contentious negotiations regarding a separation agreement.

740With respect to Star and her children, counsel submits that there is a clear rationale for her exclusion. It was clearly spelled out by Mr. Williamson in his will. Clearly, Josephine was trying to safeguard Star’s interests during the separation agreement negotiations. Accordingly, according to Ms. Crewe-Nelson, it was Martin’s position that everything that Star would receive from him would be through whatever her mother received through the divorce. In his view, Josephine would provide for Star and the children had a father who had money. He was consistently clear that Josephine and Star should get absolutely nothing through his will.

741Counsel submits that Martin’s perceptions were supported by the evidence. However, right or wrong, Martin clearly understood what he was doing, and why, in excluding Star and her children from his wills. There is simply no reason to doubt Martin’s wishes in this regard.

742Counsel submits that Mr. Williamson was not influenced by any “delusions” in deciding on the dispositions under his will. Even if one or more of his beliefs were unfounded, it does not mean that they influenced, in any unlawful way, his dispositions.

743Counsel notes that no other witnesses testified to any incidences of personality changes, rage, and mood swings, other than Star and her husband.

744Furthermore, there was no “delusional” belief that Star could provide for herself through employment, or that her husband Michael was employed. Michael was on a business trip when Star was advised that Mr. Williamson had brain tumours.

745Furthermore, even if Star is successful in proving the symptoms of misidentification syndrome, paranoid delusions, personality changes, hypomanic-type behaviour, memory difficulties and concentration difficulties, she has failed to prove that but for those symptoms, she would have been named as a beneficiary in Mr. Williamson’s will.

746Mr. Hull submits that Star has not made out the allegation of undue influence.

747Counsel submits that to be undue influence in the eyes of the law there must be coercion. There is no undue influence unless the testator, if he could speak his wishes, would say “This is not my wish but I must do it.”

748Counsel submits that the evidence in this case is woefully inadequate to prove that this standard is met. At most, the evidence suggests that Ms. Lesage gave Mr. Williamson advice to the effect that he should leave his residue to four or five friends. There is no evidence that she suggested leaving anything to herself or her husband.

749On the other hand, there is evidence that Mr. Dooley suggested a testamentary trust in favour of Star and her children, and this was rejected by Mr. Williamson.

750Mr. Hull submits that the elements of proprietary estoppel have not been established.

751Counsel submits that there is no evidence that Star acted in any way which could lead to a conclusion that she had invested any time, effort or money as a result of an expectation that she would receive a benefit under Mr. Williamson’s will. She independently chose to re-evaluate her position as an employee of the business, and she chose to invest her time and effort in her family. After Mr. Williamson got a job for her at CanPaco she voluntarily terminated her employment, and Michael Sweetnam declined employment in the business.

752Star only worked in the business for limited periods of time, and then for a competitor, CanPaco, after Mr. Williamson got her a job there. It is clear from the evidence, that Mr. Williamson was disappointed in Star’s performance in the business, and was disappointed when she left CanPaco after he had secured a job for her there. Star could have had no expectation that any earlier discussion of Star taking over the business would necessarily come to fruition.

753Mr. Hull submits that Star’s claim under the Succession Law Reform Act should be dismissed.

754Counsel submits that there is no statutory duty on a competent testator to provide for an adult, independent child, whether based on an overriding concept of a parent’s alleged moral obligation to provide on death for his or her children or otherwise. Ontario law accords testators the freedom to exclude children who are not dependants from their estate distribution.

755Counsel submits that Star is not a dependant as defined in s.57 of the Act. She was not a child to whom Mr. Williamson was providing support, or was under a legal obligation to provide support, immediately before his death.

756Counsel submits that the only evidence of any support to Star was indirect at best. The evidence was that Josephine was giving some of the money she received from Mr. Williamson to Star. There is no evidence that there was any agreement between Mr. Williamson and Josephine for Josephine to give a portion of her spousal support to Star. Any money that Star received was from money that Josephine, independently, chose to give Star.

757In any event, the full and final separation agreement between Mr. Williamson and Josephine contemplated that Josephine would receive a lump sum payment in lieu of future spousal support. Clearly, it was contemplated that Josephine would continue to give a portion of that payment to Star.

758Stephen Grant and Mr. Dooley testified that Josephine’s claims for additional amounts for Star were highly contested. Mr. Grant testified that in his view Josephine was not entitled to claim anything on Star’s behalf in the context of the separation agreement negotiations.

759Counsel submits that in the alternative Mr. Williamson made adequate provision for Star’s proper support. She received the benefit of the RCA in the amount of $550,000, and she has an expectation of receiving support from Josephine out of the amounts given to Josephine through the separation agreement. Counsel notes that Star has been able to purchase a home in Toronto worth $1.8 million, have expensive surgeries in Germany, and visit the Dominican Republic.

760Counsel submits that Star has failed to advance evidence to quantify her claim, and has tendered no evidence regarding the factors listed in s.62 of the Succession Law Reform Act.

761Mr. Penfold, counsel for Terry Dooley, submits that allegations with respect to Mr. Dooley have simply not been made out.

762Counsel notes that Mr. Dooley was added as a defendant only the basis that it would be contended that he exercised undue influence over Mr. Williamson in the making of his will.

763Counsel submits that not only has that allegation not been made out, the evidence was that Mr. Dooley suggested that a testamentary trust be considered, to provide for Mr. Williamson’s daughter and his grandchildren. That suggestion was rejected by Mr. Williamson.

764The only benefit Mr. Dooley obtained under the will is $30,000 to assist him with his dock.

765Nothing in the circumstances would raise any concern about any undue influence exercised by Mr. Dooley.

766Authorities referred to by the parties include Re Davies (1979), 1979 CanLII 1979 (ON SC), 27 O.R. (2d) 98 (Surr. Ct.); De Winter v. De Winter Estate (2001), 41 E.TR. (2d) 190 (Ont. S.C.J.); Reid v. Reid (2008), 2008 CanLII 8274 (ON SCDC), 234 O.A.C. 192 (Div. Ct.); Re Trenton (1987), 26 E.T.R. 209 (Ont. Surr. Ct.); Mannion v. Canada Trust Co (1984), 1984 CanLII 2007 (ON CA), 45 O.R. (2d) 339 (C.A.); Lapierre v. Lapierre Estate (2002), 44 E.T.R. (2d) 228 (Ont. S.C.J.); Cummings v. Cummings (2004), 69 O.R. (3d) 397 (C.A.); Cowderoy v. Sorkos Estate (2014), 2014 ONCA 618, 325 O.A.C. 130 (C.A.); Juffs v. Investors Group Financial Services Inc., [2005] O.J. No. 3872 (S.C.J.); Perilli v. Foley Estate (2006), 2006 CanLII 3285 (ON SC), 23 E.T.R. (3d) 245 (Ont. S.C.J.); Stevens v. Fisher Estate (2013), 87 E.T.R. (3d) 109 (Ont. S.C.J.); Dagg v. Cameron Estate, 2015 ONSC 6134; O’Donnell v. Richards Estate, [2002] O.J. No. 55 (S.C.J.); Morassut v. Jaczynski Estate (2013), 89 E.T.R. (3d) 64 (Ont. S.C.J.); aff’d 2015 ONSC 502, 330 O.A.C. 126 (Div. Ct.); Clarke v. Johnson (2014), 2014 ONCA 237, 318 O.A.C. 186 (C.A.); Sabey v. von Hopffgarten Estate (2014), 2014 BCCA 360, 378 D.L.R.(4th) 64 (B.C.C.A.); Hepburn v. Jannock Ltd. (2008), 2008 CanLII 429 (ON SC), 40 B.L.R. (4th) 165 (Ont. S.C.J.); Nociar v. Cound, [2014] B.C.J. No. 1855 (B.C.S.C.); Ryan v. Moore, 2005 SCC 38, [2005] 2 S.C.R. 53; Re Davis, 1963 CanLII 118 (ON CA), [1963] 2 O.R. 666 (C.A.); Idle-O Apartments Inc. v. Charlwyn Investments Ltd. (2014), 49 R.P.R. (5th) 169 (B.C.C.A.); Johnson v. Huchkewich (2010), 2010 ONSC 6002, 62 E.T.R. (3d) 144 (Ont. S.C.J.); Banton v. Banton (1998), 1998 CanLII 14926 (ON SC), 164 D.L.R. (4th) 176 (Ont. Gen. Div); Re MacLeod Estate (1989), 1989 CanLII 9848 (NS SC), 94 N.S.R. (2d) 148 (N.S. Prob. Ct.); Vout v. Hay, 1995 CanLII 105 (SCC), [1995] 2 S.C.R. 876; Scott v. Cousins (2001), 37 E.T.R. (2d) 113 (Ont. S.C.J.); Royal Trust Corp of Canada v. Saunders, 2006 CanLII 19424 (ON SC), [2006] O.J. No. 2291 (S.C.J.); Tate v. Gueguegirre (2012), 2012 ONSC 6890, 85 E.T.R. (3d) 255 (Ont. S.C.J.); Hall v. Bennett Estate (2003), 2003 CanLII 7157 (ON CA), 64 O.R. (3d) 191 (C.A.); Re Kicksee Estate (2003), 2 E.T.R. (3d) 167 (Ont. S.C.J.); Garland v. Consumers Gas Co., 2004 SCC 25, [2004] 1 S.C.R. 629; Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269; Leger v. Poirier, 1944 CanLII 1 (SCC), [1944] S.C.R. 152; Harrison v. Gollan (2004), 14 E.T.R. (3d) 60 (Ont. S.C.J.); Dueck v. Chaplin, 2015 ONSC 4604, [2015] O.J. No. 3795 (S.C.J.); Banks v. Goodfellow (1870), L.R. 5 Q.B. 549 (Q.B. Div.); Stewart v. McLean, [2003] A.J. No. 173 (Q.B.); Re Schwartz, 1970 CanLII 32 (ON CA), [1970] 2 O.R. 61 (C.A.); aff’d 1971 CanLII 17 (SCC), [1972] S.C.R. 150; Orfus Estate v. Samuel and Bessie Orfus Family Foundation (2013), 2013 ONCA 225, 304 O.A.C. 349 (C.A.); Palahnuk v. Palahnuk Estate, [2006] O.J. No. 5304 (S.C.J.); Skinner v. Farquharson (2002), 32 S.C.R. 58; Schwark Estate v. Cutting (2010), 2010 ONCA 61, 261 O.A.C. 262 (C.A.); Tiny (Township) v. Battaglia (2013), 2013 ONCA 274, 305 O.A.C. 372 (C.A.); Spence v. BMO Trust Co. (2016), 14 E.T.R. (4th) 31 (Ont. C.A.); Verch v. Weckwert (2013), 89 E.T.R. (3d) 109 (Ont. S.C.J.); aff’d, 2014 ONCA 338; Simson (Litigation Guardian of) v. De Bartolo, [2009] O.J. No. 3066 (S.C.J.); Grieco v. Grieco Estate (2013), 88 E.T.R. (3d) 112 (Ont. S.C.J.); Bormans v. Bormans Estate, [2016] O.J. No. 226 (S.C.J.); Dmyterko Estate v. Kulikowsky (1992), 47 E.T.R. 66 (Ont. Gen. Div.); and R. v. McNeill (2000), 2000 CanLII 4897 (ON CA), 48 O.R. (3d) 212 (C.A.).

Analysis

767I will first discuss certain evidentiary issues. Next, I will discuss the burden of proof. Finally, I will address the issues raised for my consideration.

a) Evidentiary Issues

i. Hearsay

768A great deal of evidence of a hearsay nature was introduced by both parties. Particularly, many statements made by Martin Williamson while he was alive were tendered. While there was a mild objection early in the trial by Mr. Hull to some of this evidence, ultimately both parties seemed to operate under a shared assumption that all evidence of a hearsay nature, particularly as it related to statements made by Martin Williamson, was admissible.

769I think the shared assumption by both parties was correct. Fundamentally, the evidence is admissible as it relates to the state of mind of the declarant. As stated in Sopinka, Lederman & Bryant, The Law of Evidence in Canada (3rd Ed., 2009), at page 330: “If the mental state of the declarant is directly in issue at trial, then statements of his or her mental state are generally admissible in proof of the fact.”

770At page 337, the authors state: “Declarations of intention or state of mind by testators stand on a special footing. Courts have traditionally taken a more liberal stance in will cases and have admitted a testator’s post-testamentary statement of memory or belief to establish antecedent facts.”

771Of significance here, the authors state at page 339:

In addition to admitting pre- and post-testamentary declarations of state of mind as evidence of the contents of a will and to establish whether the testator possessed an animus revocandi, courts have also admitted them to impeach the validity of a will on the ground of fraud, duress, undue influence or lack of testamentary capacity.

772As authority for this proposition, the authors quote, in a footnote, the following statement from Quick v. Quick (1864), 3 Sw.& Tr. 442, at 447:

It is familiar practice enough to receive the unsworn declarations of the testator in evidence, for the purpose of arriving at his general intentions where his competency is in dispute, or where there is any imputation of fraud in the making of his will. For in such cases the state of his mind and affections is in itself a material fact, of which such statements are the fair exponents.

773In the same footnote, the authors note that while Quick v. Quick was overruled by the House of Lords in Sugden v. Lord St. Leonards (1876), 1 P.D. 154 on the issue of admissibility of a testator’s post-testamentary statements to prove the contents of a will, no quarrel was taken with this point.

774In the final analysis, since no one actually objected to hearsay evidence being admitted and considered by me, I will proceed on the basis that the evidence is properly admissible.

ii. Section 13 of the Evidence Act

775Section 13 of the Evidence Act provides as follows:

13. In an action by or against the heirs, next of kin, executors, administrators or assigns of a deceased person, an opposite or interested party shall not obtain a verdict, judgment or decision on his or her own evidence in respect of any matter occurring before the death of the deceased person, unless such evidence is corroborated by some other material evidence.

776It is beyond dispute that this provision is applicable in this case. Accordingly, Star’s claims cannot be supported by her evidence alone. They can only succeed if her evidence is corroborated by some other material evidence. I have taken this into account in deciding whether her claims have merit.

b) Burden of Proof

777The law with respect to the burden of proof in cases of this sort was definitively addressed by Sopinka J. in Vout v. Hay, supra.

778When a will is propounded, and challenged, the issues for determination by the court are due execution of the will by the testator; knowledge and approval of the contents of the will by the testator; testamentary capacity; and undue influence. Where a will was duly executed with the requisite formalities, after having been read over to or by a testator who appeared to understand it, there is a rebuttable presumption that the testator knew and approved of the contents and had the necessary testamentary capacity. The rebuttable presumption can be overcome by the presence of suspicious circumstances, in which case the onus on the propounders is reaffirmed.

779This was discussed in depth by Sopinka J. in Vout v. Hay, at paras. 25-27 as follows:

25. With respect to the second problem, although Barry v. Bultin and numerous other cases dealt with circumstance in which the procurer of the will obtained a benefit, it has been determined that the dictum in Barry v. Butlin extends to any “well-grounded suspicion” (per Davey L.J. in Tyrrell v. Painton (1893), [1894] P. 151 (C.A.), at pp. 159-160). This was reaffirmed in the court by Ritchie J. in Re Martin, supra. The suspicious circumstances may be raised by (1) circumstances surrounding the preparation of the will, (2) circumstances tending to call into question the capacity of the testator, or (3) circumstances tending to show that the free will of the testator was overborne by acts of coercion or fraud. Since the suspicious circumstances may related to various issues, in order to properly assess what effect the obligation to dispel the suspicion has on the burden of proof, it is appropriate to ask the question “suspicion of what?” See Wright, supra, and Rodney Hull, Q.C., Macdonell, Sheard and Hull on Probate Practice (3rd ed. 1981), at p.33

26 Suspicious circumstance in any of the three categories to which I refer above will affect the burden of proof with respect to knowledge and approval. The burden with respect to testamentary capacity will be affected as well if the circumstances reflect on the mental capacity of the testator to make a will. Although the propounder of the will has the legal burden with respect to due execution, knowledge and approval, and testamentary capacity, the propounder is aided by a rebuttable presumption. Upon proof that the will was duly executed with the requisite formalities, after having been read over to or by a testator who appeared to understand it, it will generally be presumed that the testator knew and approved of the contents and had the necessary testamentary capacity.

27 Where suspicious circumstance are present, then the presumption is spent and the propounder of the will reassumes the legal burden of proving knowledge and approval. In addition, if the suspicious circumstances relate to mental capacity, the propounder of the will reassumes the legal burden of establishing testamentary capacity. Both of these issues must be proved in accordance with the civil standard. There is nothing mysterious about the role of suspicious circumstances in this respect. The presumption simply casts an evidentiary burden on those attacking the will. This burden can be satisfied by adducing or pointing to some evidence which, if accepted, would tend to negative knowledge and approval or testamentary capacity. In this event, the legal burden reverts to the propounder.

[Emphasis added]

780Suspicious circumstance may also be raised with respect to fraud or undue influence. Whether or not such circumstances exist, those attacking the will bear the onus of proof on such issues. As stated by Sopinka J. in Vout at para. 28: “Nevertheless the principle has become firmly entrenched that fraud and undue influence are to be treated as an affirmative defence to be raised by those attacking the will. They, therefore, bear the legal burden of proof.”

781There is no issue in this case as to the due execution of the two wills under consideration. Thus, the first issue is whether there are suspicious circumstances raised with respect to knowledge and approval and testamentary capacity. In my view, there are.

782The suspicious circumstances include the following:

a) Mr. Williamson suffered a seizure on or around July 20, 2010;

b) After the seizure, Mr. Williamson was diagnosed as having brain cancer consisting of a number of lesions in different parts of his brain, including the frontal parietal lobe;

c) Mr. Williamson also had some small holes, or “lacunes” in his brain;

d) When Mr. Williamson attended to execute his will on August 16, 2010, it was disclosed that he had some short term memory loss, including difficulty in remembering names and birthdates, and spellings of names;

e) During that meeting, Mr. Williamson may have been unsure as to the value of his estate;

f) Immediately after making his first will, he decided he had to change his will, and he had to call his accountant to find out how much his estate was worth;

g) Mr. Williamson’s reasons for reducing the benefit to his common-law partner varied from thinking it was simply too much, to thinking she may only have been there for the money and that she did not really care for him;

h) Before the meeting to discuss his second will in September, 2010, Mr. Williamson did not know to whom he should leave the residue of his estate, and accepted a recommendation he just leave it to four or five friends;

i) During the meeting with the lawyer concerning the second will, Mr. Williamson still demonstrated instances of memory loss;

j) At the conclusion of the meeting, after executing the will, Mr. Williamson still seemed uncertain as to whether he wanted that will to reflect his dispositions; he wanted reassurance that he could still change it if he wanted to;

k) Mr. Williamson very quickly thereafter wanted to make yet another will, in which he reduced the gift to his common-law partner even more, and expressed the view that she was only in it for the money and did not care for him, and he did not love her; there were significant differences between that proposed will and the last one he executed;

l) Very shortly thereafter, Mr Williamson wanted to make yet another will, once again reducing the amount to be left to his common-law partner, and significantly changing the other dispositions;

m) The legatees under Mr. Williamson’s September will were people with whom he appeared to have little familial connection, while at the same time he entirely disinherited his daughter and his grandchildren.

783These features, collectively, are sufficient to put the onus on the propounders of the will, in this case Dianne Lesage and Terry Dooley, to prove on a balance of probabilities that Mr. Williamson had knowledge of and approved of the contents of the will, and that he had testamentary capacity.

c) Issues in Dispute

784The issues in dispute are:

a. Testamentary capacity;

b. Undue influence;

c. Proprietary estoppel;

d. The claim under the Succession Law Reform Act.

785I will discuss each of these issues in turn.

i. Testamentary Capacity

786The term “testamentary capacity” involves the question of whether the testator had a sound disposing mind when he or she made a will. As noted, in this case the onus is on the propounders of the will, Ms. Lesage and Mr. Dooley, to prove that Mr. Williamson had testamentary capacity. The courts have developed a number of tests for determining whether a testator has a sound disposing mind. As long ago as 1870, the judges of the Queen’s Bench Division in Banks v. Goodfellow, supra, stated at p.565:

It is unnecessary to consider whether the principle of the foreign law or that of our own is the wiser. It is obvious, in either case, that to the due exercise of a power thus involving moral responsibility, the possession of the intellectual and moral faculties common to our nature should be insisted on as an indispensable condition. It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made. [Emphasis added]

787These tests have been applied, in substance, since then. They were summarized recently by the Ontario Court of Appeal in Hall v. Bennett Estate, supra, at paras. 14 and 15, as follows:

Numerous cases have dealt with the question of testamentary capacity. It has often been repeated that a testator must have “a sound disposing mind” to make a valid will. The following requirements can be extricated from the caselaw. In order to have a sound disposing mind, a testator:

• Must understand the nature and effect of a will;

• Must recollect the nature and extent of his or her property;

• Must understand the extent of what he or she is giving under the will;

• Must remember the persons that he or she might be expected to benefit under his or her will; and

• Where applicable, must understand the nature of the claims that may be made by persons he or she is excluding from the will.

It is also clear from the jurisprudence that the test to be met to prove testamentary capacity is a high one and the onus falls on the propounder of the will. The jurisprudence abounds with statements that it is not sufficient simply to show that a testator had the capacity to communicate his or her testamentary wishes. Those wishes must be shown to be the product of a sound and disposing mind as described above.

788As discussed by the Court of Appeal in Hall, it is not enough that the testator is able to discuss matters in a rational manner. Appearances can be deceiving. As stated by Rand J. in Poirier v. Leger, 1944 CanLII 1 (SCC), [1944] S.C.R. 152:

But there is no doubt whatever that we may have testamentary incapacity accompanied by a deceptive ability to answer questions of ordinary and usual matters: that is, the mind may be incapable of carrying apprehension beyond a limited range of familiar and suggested topics. A “disposing mind and memory” is one able to comprehend, of its own initiative and volition, the essential elements of will-making, property, objects, just claims to consideration, revocation of existing dispositions, and the likes; this has been recognized in many cases.

789The converse is also true: the fact that a testator may have an illness that affects his or her brain, such as a brain tumour, is not enough. As stated by Belzil J. in Stewart v. McLean, supra, at para. 180:

It is not possible to ever answer absolutely whether or not a testator had testamentary capacity at the time of signing of the will. The question of testamentary capacity is difficult and complex, and clearly the fact that Hilarius West had a brain tumour is not determinative of this issue.

790The issue of “insane delusions” raised in Banks v. Goodfellow requires some discussion. Generally speaking, a delusion is an irrational belief in a state of facts which no rational person would believe. However, the mere fact that a testator has one or more delusions will not invalidate his or her will. In order to do so, a delusion must influence the testator in the making of the will.

791In Banks v. Goodfellow itself, the testator suffered from certain delusions relating to evil spirits. However, since the delusions were not related to the contents of the will, they were not sufficient to require a conclusion that the testator lacked testamentary capacity.

792The concept of insane delusions has been discussed in a number of other cases.

793In Skinner v. Farquharson, supra, the Supreme Court of Canada upheld the decision of a jury, to the effect that insane delusions on the part of a testator did not, in fact, influence the making of his will.

794On the other hand, in Ouderk