Lavoie v. Trudel, 2016 ONSC 4141

CITATION: Lavoie and Trudel, 2016 ONSC 4141

COURT FILE NO.: C-456-10

DATE: 2016-06-27

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

RICHARD LAVOIE and MICHEL LAVOIE Plaintiffs

– and –

RICHARD TRUDEL and PAULETTE TRUDEL in their personal capacity and in their capacity as Estate Trustees of LUCIEN TRUDEL, DECEASED Defendants

Plaintiffs, Acting in Person

Mathieu R. Ansell, Counsel for the Defendants

HEARD: May 24 – 27 and June 13-16, 2016

JUSTICE E. GAREAU

REASONS FOR JUDGMENT

Introduction

[1] This matter concerns the validity of a will dated December 5, 2007, purportedly made by Lucien Trudel, who is now deceased.

[2] The plaintiffs are the step-children of the late Lucien Trudel. The defendants are the estate trustees named in the will of Lucien Trudel and are two of the four living biological children of the late Lucien Trudel.

[3] This matter proceeded to trial in Sudbury, Ontario for seven days, commencing on May 24, 2016 with the trial adjourned to June 2016 and completed on June 16, 2016. The court reserved its decision.

Factual Background

[4] The plaintiffs are the biological children of Madeleine Denis. The biological father of the plaintiffs died when they were very young.

[5] The defendants, Richard Trudel and Paulette Trudel, as well as Denise Champagne and Michel Trudel, are the living biological children of Lucien Trudel. Lucien Trudel’s first wife predeceased him. Lucien was married briefly a second time but that marriage did not succeed.

[6] Lucien Trudel and Madeleine Denis began to live together in a common-law relationship in 1978. They subsequently married on April 11, 1981.

[7] After their marriage, both Lucien Trudel and Madeleine Denis (now known as Trudel) each prepared a last will and testament, dated March 30, 1983. These wills were form wills and were not prepared by a solicitor. The will dated March 13, 1983, executed by Lucien Trudel, provided that he gave his entire estate to his wife, Madeleine Trudel, and if she predeceased him or did not survive for more than 30 days after his death, then his estate would be transferred “to my two step-children, Richard Lavoie and Michel Lavoie, in equal shares”.

[8] The will of Madeleine Trudel, dated March 30, 1983, provided that her entire estate would go to her husband, Lucien Trudel, and if he predeceased her or did not survive for more than 30 days after her death, then his estate would be transferred “to my two children, Richard Lavoie and Michel Lavoie, in equal shares”.

[9] The provisions in these wills went unchanged until December 5, 2007. Madeleine Trudel died on November 27, 2007. On December 3, 2007, Lucien Trudel attended at the office of André Lacroix, who was an experienced solicitor practicing in the firm of Lacroix, Forest LLP in Sudbury, Ontario. On December 3, 2007, Lucien Trudel provided instructions to Mr. Lacroix with respect to the preparation of a new last will and testament and continuing power of attorney over property and personal care.

[10] On December 5, 2007, Lucien Trudel attended at the office of Andre Lacroix and executed a last will and testament in which he revoked all prior wills and named as his beneficiaries in equal shares “my children Richard Trudel, Paulette Trudel, Denise Champagne and Michel Trudel”. In that will, Mr. Trudel’s son, Richard Trudel, and his daughter, Paulette Trudel, were named as executors and trustees.

[11] On December 5, 2007, Lucien Trudel also executed a continuing power of attorney for property and personal care in which he appointed Richard Trudel and Paulette Trudel, jointly and severally, to be his attorneys for his property and personal care in accordance with the Substitute Decisions Act, 1992, and Health Care Consent Act, 1996.

[12] Lucien Trudel died on October 31, 2009.

[13] The plaintiffs take the position that the will executed by Lucien Trudel on December 5, 2007 is invalid in that Mr. Trudel did not have the testamentary capacity to make the will and was subject to undue influence exercised on him by Richard Trudel and Paulette Trudel, who benefitted from the will of December 5, 2007. It is the position of the plaintiff that the valid last will and testament of Lucien Trudel at the time of his death was the will dated March 30, 1983, leaving the plaintiffs as the sole beneficiaries of his estate. Additionally, the plaintiffs claim that the wills made by Lucien Trudel and Madeleine Trudel on March 30, 1983, were mutual wills, incapable of being revoked by Lucien Trudel.

[14] If the will dated December 5, 2007 of Lucien Trudel is held to be the last will and testament of Lucien Trudel, then the plaintiffs claim that they are entitled to compensation for work done and services provided to Lucien Trudel based on unjust enrichment and quantum meruit.

[15] The defendants take the position that Lucien Trudel had testamentary capacity to make the will dated December 5, 2007 and that no undue influence was exercised upon Lucien Trudel by any of the beneficiaries named in the December 5, 2007 will. The defendants take the position that in law there is no basis to grant equitable relief to the plaintiffs on the basis of unjust enrichment or quantum meruit and that any claim for compensation to the plaintiffs be dismissed. The defendants are requesting that the court find that the last will and testament dated December 5, 2007 is the valid Last Will and Testament of Lucien Trudel.

The Issue of Mutual Wills

[16] If the wills made by Lucien Trudel and Madeleine Trudel on March 30, 1983 are in fact mutual wills then that will made Lucien Trudel incapable of revocation and Mr. Trudel could not have made the new will dated December 5, 2007.

[17] The last will and testament of Lucien Trudel, dated March 30, 1983, and the last will and testament of Madeleine Trudel, dated March 30, 1983, are undoubtedly mirror wills in that they reflect the exact same provisions, namely the transfer of their estate to each other if they predecease the other and transfer of their estate equally to Richard Lavoie and Michel Lavoie.

[18] The exact wording of the last will and testament, dated March 30, 1983, made by Lucien Trudel is as follows:

This is the Last Will and Testament of me, Lucien Trudel at present residing at 4430 St-Michel St. Hanmer, Ontario in the Townsend of Valley East in the District of Sudbury, Miner, hereby revoking all former wills and testamentary dispositions heretofore made by me.

I nominate and Appoint my wife Madeleine Trudel sole executrix and trustee of this my will, but if my said wife should predecease me, then I nominate and appoint Richard Lavoie, 4430 St-Michel St., Hanmer, Ontario and Leo Denis, 106 rue Oscar, Hanmer, Ontario and the survivor of them, to be the Executors and Trustees of this my will.

I Give, Devise and Bequeath all the Real and Personal estate of which I shall die possessed or entitled to into my said Executors and Trustees hereinbefore named, in Trust for the purposes following: -

Firstly, to pay my just debts, funeral and testamentary expenses, And thereafter in trust to pay over or convey the following bequests to the persons or corporations hereafter named, namely: -- My beloved wife, Madeleine Trudel providing that she survives me for more than thirty days inclusive of the date of my death. Provided that in the event that my said wife predeceases me or does not survive me for more than thirty days inclusive of the date of my death, the above bequest to her shall lapse, and I devise and bequeath and appoint all the real and personal estate which I am seized or possessed of or entitled to or over which I have any power of appointment to my two step-children Richard Lavoie and Michel Lavoie in equal shares, and I nominate and appoint in such an event Richard Lavoie and Leo Denis to be executor and trustee of this my will. With full power to my executors to sell, mortgage, exchange and convert into cash any of my real or personal property at any time as they in their sole discretion shall see fit. All Registered Home Ownerships Savings Plan and Registered Retirement Saving Plan I give, devise and bequeath unto my wife Madeleine Trudel absolutely.

All the rest and residue of my estate both Real and Personal I Give, Devise and Bequeath unto ____________________________absolutely.

With full power and authority to my Executors and Trustees to sell and dispose of all or any part of my Real or Personal estate, where necessary for the carrying out of the purposes of this my will, and to execute any and all Documents that may be necessary for so doing.

In Witness whereof I have subscribed these presents written (in so far as not printed) by Noelle Pitre Secretary at LA Caisse Populaire St-Jacques De Hanmer Ltee this thirtieth day of March Nineteen hundred and eighty-three.

Signed published and declared by the above-named TESTATOR as and for HIS last Will and Testament in the presence of us both present at the same time, who at HIS request and in HIS presence have hereunto subscribed our names as witnesses.

(Witnesses)

Name: Carole Desrosiers

Address: 87 Shepherd, Hanmer Ont.

Name: Donald Proulx

Address: 125 Hwy 69 N., Hanmer, Ont.

[19] There is no provision on the face of that will that indicates that it is made as a mutual will or that it is incapable of revocation in the future.

[20] The general definition as to what is meant by mutual wills was considered at paragraph 21 in the case of Doherty v. Berry (Estate of), 1999 ABQB 312. At paragraph 21 the court summarized the definition gleaned from the authorities as follow:

By the term mutual wills, what is meant are wills that dispose of property belonging to two testators (usually husband and wife), who have agreed to pool their mutual property and to provide by their wills for its disposal according to an agreed scheme. The scheme or arrangement provides for conferring reciprocal benefits (usually a life interest) on each other for the survivor and after the death of the survivor, it provides for disposal of the mutual property to other persons...as the parties have agreed. In addition, persons who make mutual wills usually agree not to alter or revoke them without the other’s consent and it is out of this agreement not to revoke that a constructive trust may arise. The agreement not to revoke may be incorporated in the will by recital or otherwise, or it may be proved outside of the will.

Accordingly there can be said to be at least two conditions for the operation of this doctrine whereby an irrevocable trust is imposed by law on the estate of the survivor in accordance with the terms of the mutual will arrangement. These two conditions are: (1) a mutual agreement not to revoke their individuals wills; and (2) the one who died first must have died without revoking or changing his will in breach of the agreement.

An agreement not to revoke is not to be inferred from the mere fact of making mutual wills, nor is it to be inferred from the fact that mutual benefits are conferred by the dispositions, but usually the agreement not to revoke can be inferred from the terms of the mutual wills. (Emphasis added) Not only the will themselves, but all the circumstances surrounding their making may provide satisfactory evidence that the wills were executed in pursuance of an enforceable agreement. [Emphasis in original.]

[21] Cullity J. considered the doctrine of mutual wills in the case of Edell v. Sitzer, 2001 Carswell 5020 S.C.J. where at paragraph 57 and 58 he states:

The doctrine of mutual wills has traditionally been applied in cases where individuals have made separate wills pursuant to an agreement with respect to their terms. Most commonly, they have agreed that each will obtain a benefit under the other’s will and that other specified individuals will receive the property of each of them on the death of the survivor. In some cases of this sort, the benefit obtained by the survivor under the other’s will has been a life interests; in other cases, it has taken the form of an outright gift. There the requirements for the application of the doctrine are satisfied, the survivor will not be permitted to defeat the agreement by revoking his or her will after the death of the other. This result is achieved by the imposition of a constructive trust on the survivor’s estate for the benefit of those who were intended to benefit under the agreement.

The most fundamental prerequisite for an application of the doctrine is that there be an agreement between the individuals who made the wills. It has been repeatedly insisted in the cases that: (a) the agreement must satisfy the requirements of a binding contract and not be “just some loose understanding or sense of moral obligation” (Goodchild, Re (1995), [1996] 1 All E.R. 670 (Eng. Ch. Div.), at page 681). It must be proven by clear and satisfactory evidence; and (c) [sic] it must include an agreement not to revoke the wills.

[22] As is stated in Edell v. Sitzer, an agreement between the testators satisfying the requirements of a binding contract proven by clear and satisfactory evidence must be established. A “loose understanding or sense of moral obligation” will not suffice.

[23] There is nothing in the contents of either the will of Madeleine Trudel, dated March 30, 1983, (Exhibit 94), or the will of Lucien Trudel, dated March 30, 1983, (Exhibit 95), that would lead to the conclusion that these are mutual wills. There is no life interest established and more importantly, there is no provision in either will that the will is incapable of revocation at a future date. On their face, the wills of Madeleine Trudel, dated March 390, 1983, and Lucien Trudel, dated March 30, 1983, can be described as “mirror” wills but not “mutual” wills.

[24] The plaintiffs could offer no other documentary proof that mutual wills existed between Madeleine Trudel or Lucien Trudel. They were unable to point to any collateral written agreement between Lucien Trudel indicating that they intended the wills of March 30, 1983 to be mutual wills, incapable of revocation.

[25] What the plaintiffs pointed to in suggesting that the March 30, 1983 wills were mutual wills were verbal discussions that took place between Lucien Trudel and Madeleine Trudel throughout the years. Leo Denis testified that he had known Madeleine Denis (later Madeleine Trudel) his entire life. Madeleine was his aunt, being his mother’s sister. When Lucien Trudel and Madeleine Denis were married, Leo Denis took the place of Madeleine’s father at the wedding and “gave the bride away”. Leo Denis described a close relationship with Madeleine and Lucien right up until their deaths. Mr. Denis testified that “every time they were drinking together, Lucien would tell Madeleine that he would not change his will”. Mr. Denis described that Lucien and Madeleine indicated on many occasions that they were not worried because they had a will, “the paper work was done”.

[26] Entered as Exhibit 19 was a letter prepared and signed by Leo Denis, dated April 6, 2011. The letter was prepared at the request of the plaintiff, Michel Lavoie, and was prepared in his presence as well as in the presence of the spouse of Michel Trudel, Corrina Bonhomme. Exhibit 19 reads as follows:

To whom it may concern,

My name is Leo Denis. My mother, Cecile Proulx, is the sister of Medeleine Trudel. My stepfather was Leopold Proulx. Our family was very close to Madeleine Trudel and Lucien Trudel. On April 11, 1981 I stood in as Medeleine’s father in the wedding. That how much they thought of me, we were all a happy family. My relationship with Lucien Trudel was very close, not only was he my uncle, he was a very close friend. They would come over to our house to play cards and we would go over for their birthdays and holidays.

Lucien and Madeleine asked me to be executor & trustee of their trust wills and asked me to make sure that their wishes be honoured. They often spoke about that and they were in accordance that the trust wills were the best thing they did for the children, Richard and Michel. Lucien Trudel loved those boys, always calling them his sons, never saying they were his wife’s sons only, but saying they were his son’s. Playing cribbage with Richard was one of his highlights, always bragging when they would win. I remember when Richard joined the Knights of Columbus, Lucien was so proud, saying he got his son in the fraternity. When Lucien would go to the hospital because of his asthma attacks, it was always Michel that would bring him his meals, that he would bake at home for him then bring the meals at the hospital before it was cold. They were extremely close to Lucien and their mom of course.

Like I said previously, that was their specific wishes that Richard and Michel have their worldly goods after their deaths. That’s why they made sure their wishes were in a trust will.

During the period around November 27, 2007 to December 5, 2007 Lucien was very tired, having hardly sleep in the last two weeks and having lost the love of his life and with his health being so poor with cancer and all, he looked very ill and very depressed. He was also heavily medicated, I don't think he knew what he was doing. How can a man disown his son’s after all the care he got from them, it makes no sense.

In conclusion, I Leo Denis can honestly say that if Lucien would have been in his usual state of mind, like he was before his wife’s death, he would have never even contemplated to change his will, that was absolutely not in his way of doing things. Lucien was a man of his words, when he told Madeleine, the will would never be changed, he meant just that, his word was his bond.

[27] Corrina Bonhomme gave evidence at the trial. Filed as Exhibit 37 was a letter prepared by Ms. Bonhomme, dated April 25, 2012. This letter was prepared for this court proceeding. The letter (Exhibit 37) reads as follows:

To whom it may concern,

I Corrina Bonhomme was very close to Mr. and Mrs. Trudel. Since 1985, we spent all the Holidays together. We went to Florida together and visited weekly. They were always there for us. As they got older, I tried to help them in any way possible.

Lucien and Madeleine were very close to Michel and Richard Lavoie. Their close relationship with Mr. Trudel continued even after Mrs. Trudel’s passing. These court proceedings have caused a lot of stress, financial hardship and affected our ability to grieve properly. I don't believe that Mr. and Mrs. Trudel would have wanted this to happen.

[28] Interestingly, although in her letter, Corrina Bonhomme states in the last line, “I don't believe that Mr. and Mrs. Trudel would have wanted this to happen”, in her viva voce evidence, Ms. Bonhomme did not testify about any discussions between Lucien or Madeleine Trudel concerning their wills of March 30, 1983, or provide any evidence with respect to the wills being mutual wills, incapable of revocation.

[29] The only child of Michel Lavoie and Corrina Bonhomme, Brittney Lavoie, gave evidence at the trial. At the request of her father, Brittney prepared a letter dated April 15, 2012 which was entered as Exhibit 62. That letter reads as follows:

To whom it may concern,

My name is Brittney Lavoie. Lucien and Madeleine Trudel are my grandparents. I had a very close relationship with both of them. My mother and father were also very close and did a lot for them.

From the day I was born they both played a very large part in my life. We spent every birthday, holiday and various special events tighter. We played cards, went for walks, shopping and attended yard sales. They bought me many clothes, school supplies and gifts over the years. I even took my first steps with them. The various pictures we have are proof that we loved each other very much. When either of my grandparents was ill, my family and I were always there to help them.

I would like to make it known that the Trudel’s were rarely around until my grandfather was diagnosed with cancer. This secondary will is out of character and my grandfather would not want to hurt my family in this way.

[30] Although the letter prepared by Brittney Lavoie states in the last line, “This secondary will is out of character and my grandfather would not want to hurt my family in this way”, Brittney Lavoie provided no viva voce evidence to the court that would lead the court to conclude that her grandparents had mutual wills incapable of revocation.

[31] Both the plaintiffs Michel Lavoie and Richard Lavoie testified. It was the evidence of Michel Lavoie that every time his mother would drink she would bring up the will and his mother would say to Lucien “never change the will” and Lucien would reply “I’ve done my paper work, this is how it is going to stay”. Michel Lavoie indicated in his evidence that he heard Lucien and Madeleine talk about the will when they were not drinking but that more frequently the discussion would arise when they were both consuming alcohol.

[32] It was the evidence of Richard Lavoie that Lucien Trudel and his mother Madeleine Trudel had a “verbal agreement” not to change their wills of March 30, 1983. Richard Lavoie testified that he heard them talk about it 10 to 15 times. During his testimony in-chief and in cross-examination Richard Lavoie indicated that Lucien Trudel could have changed his will to include his children but should not have excluded himself or his brother, Michel Lavoie. Richard Lavoie indicated in cross-examination that Lucien Trudel could have made a new will, but he should have written it differently. As he indicated in evidence, Richard Lavoie would have had no difficulty with Lucien Trudel making a new will after the March 30, 1983 will provided he had included everyone as beneficiaries, both his biological children and his step-children.

[33] Both Michel Lavoie and Richard Lavoie testified that Lucien Trudel would have been going against Madeleine Trudel’s wishes by making a new will. As Michel Lavoie indicated “Lucien would never want to hurt mom or dishonour her or go against her wishes”. Richard Lavoie similarly testified that Lucien Trudel would “not go against her wishes”, referring to his mother and therefore would not have made a new will as Madeleine did not like Lucien’s children and would not want her assets to go to the Trudel children.

[34] I got the distinct impression from the evidence that any agreement not to revoke the March 30, 1983 wills was not so much an agreement by Lucien Trudel as much as a directive by Madeleine Trudel. For the court to find there were mutual wills, there must be clear and cogent evidence and as put in the Edell v. Sitzer decision, not “just some loose understanding or sense of moral obligation”. There is no documentary evidence indicating that the March 30, 1983 wills were intended to be mutual wills incapable of revocation. The other evidence of an agreement is lacking. Leo Denis cannot be described as an independent witness. He testified at the request of the plaintiffs and as part of their case. He is related to the plaintiffs. He still maintains a friendship and relationship with the plaintiffs. He is interested in the outcome of the proceedings and set in the courtroom in support of the plaintiffs after he gave evidence.

[35] There is good reason for the court to insist on clear, cogent and compelling evidence to find that wills are mutual wills. A finding that a will is a mutual will, therefore incapable of revocation, interferes with the testamentary freedom of a testator. It is worthwhile to consider the comments of the Ontario Court of Appeal in the recent case of Spence v. BMO Trust Co. 2016 ONCA 196, 129 O.R. (3d) 561. Madam Justice Cronk, speaking for the court, stated at paragraphs 30 to 32 inclusive of that decision:

A testator’s freedom to distribute her property as she chooses is a deeply entrenched common law principle. As this court emphasized in Canada Trust Co. v. Ontario (Human Rights Commission) (1990), 1990 6849 (ON CA), 74 O.R. (2d) 481, [1990] O.J. No. 615 (C.A.) at p. 495 O.R. citing Blathwart v. Lord Cowley [1976] Ashlynn Cook 397, [1975] 3 All E.R. 625 (H.L.):

The freedom of an owner of property to dispose of his or her property as he or she chooses is an important social interest that has long been recognized in our society and is firmly rooted in our law.

The Supreme Court has also recognized the importance of testamentary autonomy, holding that it should not be interfered with lightly, but only in so far as the law requires: Tataryn v. Tataryn Estate, 1994 51 (SCC), [1994] 2 S.C.R. 807, [1994] S.C.J. No. 65 at p. 824 S.C.R.

The freedom to dispose of her property as a testator wishes has a simply but significant effect on the law of wills and estates: no one, including the spouse or children of a testator, is entitled to receive anything under a testator’s will, subject to legislation that imposes obligations on the testator.

[36] In considering the totality of the evidence before me, I cannot conclude that the will of Madeleine Trudel, dated March 30, 1983 (Exhibit 94), and the will of Lucien Trudel, dated March 30, 1983 (Exhibit 95) ,were mutual wills incapable of revocation.

[37] This being the case, the court must turn to the will made by Lucien Trudel on December 5, 2007 to determine if it is a valid will or whether it is invalid due to the mental incapacity of Lucien Trudel or the undue influence on him by Richard Trudel and Paulette Trudel, as alleged by the plaintiffs. If the December 5, 2007 will is invalid for the aforementioned reasons then the will made by Lucien Trudel on March 30, 1983 would be his last will and testament.

The issue of Lucien Trudel’s capacity to make the will of December 5, 2009

[38] Testamentary capacity has two components, namely, age and mental capacity. Subject to the exceptions in Section 8(1) of the Succession Law Reform Act, R.S.O. 1990, c. 26, which do not apply in the case at bar, a person must be at least 18 years of age to make a valid will in the Province of Ontario. Lucien Trudel was born on March 12, 1924. He was 83 years of age at the time he made his last will and testament on December 5, 2007.

[39] Mental capacity is a question of fact to be determined from all of the circumstances (O’Neill v. Royal Trust Co., 1946 13 (SCC), [1946] S.C.R. 622). The plaintiffs have raised “suspicious circumstances” with respect to both the timing of the will and the circumstances surrounding the execution of the December 5, 2007 will by Lucien Trudel. The evidence in this case indicates that Madeleine Trudel died on November 27, 2007. Just six days after Madeleine’s death Lucien Trudel met with André Lacroix and provided him with instructions for the preparation of a new will. That will was signed just two days later, on December 5, 2007. The defendant, Richard Trudel, who is an executor and a beneficiary under the December 5, 2007 will and his wife Micheline Trudel accompanied Lucien Trudel to his appointment with Mr. Lacroix and were present with him when he provided instructions to Mr. Lacroix. On December 5, 2007, Richard Trudel and his sister Paulette Trudel, who is also the executor and one of the beneficiaries named in the December 5, 2007 will accompanied Lucien Trudel to the office of André Lacroix at which time Lucien Trudel signed his last will and testament and his power of attorney over property and personal care.

[40] As noted in the Supreme Court of Canada in Vout v. Hay, 1995 105 (SCC), [1995] 2 S.C.R. 876, at para. 25, suspicious circumstances extend to any “well-grounded suspicion”. As indicated by the court:

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 the free will of the testator was overborne by acts of coercion or fraud.

[41] Based on the aforementioned comments of the Supreme Court of Canada in Vout v. Hay, the plaintiffs have made a case for the court to consider that “suspicious circumstances” exist with respect to the will of Lucien Trudel, dated December 5, 2007 and this has an effect on the onus of proof and the burden of proof. As is stated by the court at page 889 in Vout v. Hay:

...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.

Where suspicious circumstances 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 proven in accordance with the civil standard...

By “the civil standard” the court means proof of mental capacity on a balance of probabilities

[42] The mental capacity of the testator relates to whether the testator can be said to have a “sound disposing mind”. In Hall v. Bennett Estate, 2003 7157 (ON CA), [2003] O.J. No. 1827 (Ont. C.A.), the Ontario Court of Appeal extracted from the case law several requirements for a sound disposing mind. They are:

1. the testator must understand the nature and effect of a will;

2. the testator must recollect the nature and extent of his or her property;

3. the testator must understand the extent of what he or she is giving under the will;

4. the testator must remember the persons whom he or she might be expected to benefit under his or her will; and

5. where applicable, the testator must understand the nature of the claims that may be made by persons he or she is excluding from the will.

[43] Lucien Trudel was 83 years of age, had a myriad of health difficulties and was taking numerous prescription drugs at the time he made his last will and testament, dated December 5, 2007. Diminished capacity due to old age is not to be automatically equated with a lack of capacity.

Candido v. Ciardullo, [1991] B.C.J. No. 3298 (B.C.S.C.)

[44] The evidence is clear that at the time of making of the will on December 5, 2007 and at the time of his death on October 31, 2009, Lucien Trudel was under the care of at least three physicians for his medical difficulties and was taking numerous prescription medications. Filed as Exhibits 10 and 11 are two volumes of medical documentation which details Mr. Trudel’s attendance at emergency, hospitalization and various medical appointments for blood work and chemotherapy that he had. Tab 8 of Exhibit 10 is a summary or patient profile from the Hanmer Medical Pharmacy for Lucien Trudel for the period from September 1, 2007 to October 31, 2009. That summary details the medication prescribed to Lucien Trudel during that period of time. Those records indicate prescriptions issued by Dr. Gill, Mr. Trudel’s cancer specialist, Dr. Oliphant, Mr. Trudel’s respiratory specialist and Dr. Routhier, Mr. Trudel’s family physician.

[45] The court had the benefit of both written reports and viva voce evidence from Dr. Oliphant, Dr. Gil and Dr. Routhier.

[46] Dr. Laurie David Oliphant has been a physician for 34 years and is a specialist in respiratory, which he described as the study of lung diseases and sleep disorders. Dr. Oliphant initially began treating Lucien Trudel in 1990 for a period of approximately three years and then saw Mr. Trudel as a patient again in 1995 and followed him from that time until his death on October 31, 2009. Mr. Trudel had difficulties with asthma and Dr. Oliphant saw him three to four times a year with respect to this condition. Dr. Oliphant testified that he never performed a mental capacity examination on Mr. Trudel. He simply did not see the need to do this. Dr. Oliphant was very clear in his evidence that he would not have had a concern about Lucien Trudel’s mental competency to make a will or a power of attorney in the time that he knew him and was treating him. Dr. Oliphant indicated that during the whole period that he had Lucien Trudel as a patient there was nothing that arose that made him question that Lucien Trudel was of sound mind and capable of managing his own affairs. Throughout this period, Dr. Oliphant did not see any personality change in Lucien Trudel. Dr. Oliphant testified that he did not observe a marked difference in Lucien Trudel until his last hospitalization in October 2009. It was Dr. Oliphant who admitted him to the hospital, for the last time, in October 2009.

[47] By letter dated December 3, 2009, André Lacroix wrote to Dr. Oliphant requesting a report from Dr. Oliphant concerning Lucien Trudel’s mental capacity to make a will on December 5, 2007. A copy of that letter was entered as Exhibit 13. Dr. Oliphant replied by letter dated December 7, entered as Exhibit 12. The contents of Dr. Oliphant’s letter to Mr. André Lacroix reads as follows:

Dear Mr. Lacroix:

Re: Estate of Lucien Trudel

Thank you for your letter dated December 3, 2009. Please be advised that I initially saw Mr. Trudel in consultation on July 6, 1990, at the request of Dr. Hollingsworth. He was subsequently seen in regular follow-up until 1991. He was then reviewed again on March 22, 1993, at the request of Dr. Sami. After that, I maintained regular follow-up with the patient and helped with the management of his pulmonary condition. As I am sure you are aware, I was also his attending physician at the time of death. Up until just before his death, I would have considered him to have been of sound mind and capable of managing his own affairs. Review of my chart suggests that he was actually seen at my office on December 5, 2007. At that time I was again evaluating his pulmonary condition but there are no indications from my notes that I had any concerns about his cognitive function.

I trust that this letter provides you with the information you require.

Yours sincerely,

L.D. Oliphant, MD FRCPC FCCP

[48] Dr. Kulwant Gill is a specialist in hematology and has been so since 1992. Dr. Gill treated Lucien Trudel for multiple myeloma, an incurable form of cancer that grows in the bones. Treatment for this disease started in March 2007 for approximately one year at which point Mr. Trudel was in remission for approximately one year. In 2009 the cancer returned and Dr. Gill was once again involved in Mr. Trudel’s care. Dr. Gill indicated that Mr. Trudel did not talk about his family and that he did not ask Mr. Trudel about his family. As Dr. Gill put it, “I was managing his cancer and the pain associated with his cancer.” That is what Dr. Gill was concerned about. Dr. Gill indicated in his evidence that in his dealings with Lucien Trudel that Mr. Trudel knew what was going on and that at all times he was appropriate in his responses. Dr. Gill testified that Lucien Trudel “did not seem to be confused or have any difficulty with his cognition”. As indicated by Dr. Gill in his note dated December 2, 2009 at Tab 55 of Exhibit 11:

I have been treating Mr. Trudel for multiple myeloma and I found him to be competent to make his decisions.

In his viva voce evidence, Dr. Gill made it clear that what he meant by “competent to made his decisions” was that Lucien Trudel was competent to make decisions about his treatment, to give his consent to the treatment that he was to receive and to make decisions surrounding his treatment. Clearly Lucien Trudel was making his own medical decisions and Dr. Gill was comfortable in him doing so.

[49] The court also had the benefit of evidence from Dr. Shelley Ann Routhier, the family physician for Lucien Trudel. Dr. Routhier has been a licenced physician since 1995. She was Lucien Trudel’s family physician from March 1998 to the time of his death on October 31, 2009. Entered as Exhibit 21 is a letter from Dr. Routhier concerning Lucien Trudel. That letter reads as follows:

To Whom It May Concern,

This is a letter regarding Mr. Lucien Trudel (DOB March 12th 1924) who was my patient since March 30th, 1998. I had been Mr. Trudel’s family physician from March 1998 until his recent death.

Throughout my management of Mr. Trudel, I found him to be completely competent in his decision making. He was fully capable of managing his own personal and financial affairs. He maintained a driver’s licence while he was under my care.

Regarding the time period of December 5th 2007, I am not aware that Mr. Trudel suffered neither physical, nor mental deterioration. There is no medical evidence that he was heavily medicated. Upon review of my clinical notes, previous to Dec 5th 2007, Mr. Trudel consulted on September 5th 2007 for a regular prescription refill. No changes were made to his regular medications. My clinical note states that he was of sound judgement.

Should you require any further information, please do not hesitate to contact my office.

Sincerely,

Shelley Ann Routhier MD CCFP

The letter from Dr. Routhier clearly states that “throughout my management of Mr. Trudel, I found him to be completely competent in his decision making. He was fully capable of managing his own personal and financial affairs. He maintained a driver’s licence while he was under my care”.

[50] In her viva voce evidence, Dr. Routhier reviewed Mr. Trudel’s various medical conditions, his medication, his treatment and admissions to hospital while he was under her care. Dr. Routhier’s chart notes indicate that she saw Lucien Trudel on December 11, 2007, which was close in time to when he made the will on December 5, 2007. The clinical note from December 11, 2007 indicates that the nurse practitioner gave Lucien Trudel his flu shot and that Dr. Routhier saw Mr. Trudel for a prescription renewal. On the December 11, 2007 visit, Dr. Routhier indicated that Mr. Trudel did not seem to be distraught and that she did not notice any change in Mr. Trudel from previous visits. Dr. Routhier did note that Mr. Trudel was experiencing grief due to the death of his wife. Her note indicates that “he is doing well physically but his spouse died on November 24”. In fact, Madeleine Trudel died on November 27. Dr. Routhier could not confirm in her evidence whether she misheard the 24th or whether Lucien Trudel said the 24th. As she put it, “Maybe it was my misunderstanding”. Although Dr. Routhier noted that Lucien Trudel was grieving, she did not find that he was depressed and described him cognitively as “being intact” on her December 11, 2007 attendance with him.

[51] Dr. Routhier did not note any significant side effects or symptoms in Lucien Trudel from the medication that he was taking. Dr. Routhier noted that Lucien Trudel “did not have any signs or symptoms of any psychiatric condition”. Dr. Routhier never received any calls from Mr. Trudel’s pharmacy that indicated that he was experiencing any difficulty from the medication that he was taking. Dr. Routhier indicated that in the 11 years of over 60 office visits with Lucien Trudel that she never noted Mr. Trudel to be confused or disoriented. Lucien Trudel never discussed his will or power of attorney or his property matters with Dr. Routhier. Dr. Routhier described Mr. Trudel as being a private person and “old school”, in that he didn’t discuss his home life or private matters.

[52] It was the clear, unequivocal opinion of Dr. Routhier that Lucien Trudel was fully able to understand what was going on and able to understand and appreciate the consequences of his decisions. When the question was put squarely to Dr. Routhier if on Mr. Trudel’s appointment on December 11, 2007 or at any time before that if Mr. Trudel indicated to her that he wanted to make a will or power of attorney whether she would have any question or concerns about him doing so or his mental capacity to do so, Dr. Routhier answered clearly, firmly and without hesitation, that she would have had no concerns.

[53] The medical evidence in this case concerning the mental capacity of Lucien Trudel is hard to ignore. All three of the treating physicians of Lucien Trudel share the same opinion that Lucien Trudel had the mental capacity to make a will and had no cognitive impairment that caused them concern. I must say that I found all three physicians balanced in their evidence and appropriate in their responses to the questions put to them. That is particularly so in the case of Dr. Shelley Ann Routhier. I found Dr. Routhier to be a most impressive witness. She was very knowledgeable, cautious in her evidence, examined documents put to her carefully and was not hesitant to defer to others when the questions related to an area of their expertise. I accept the evidence given by Dr. Routhier in its entirety.

[54] Having said that, the court is aware that it must also look to the observations of others that were connected to Lucien Trudel, those who were close to him, and consider that evidence when determining whether Lucien Trudel had the capacity to make a last will and testament on December 5, 2007. Leo Denis described Lucien Trudel as being “a little bit lost” after his wife Madeleine died. Mr. Denis also described Mr. Trudel as being changed; as he put it “he was a changed man for some reason”. As to the new will, Mr. Denis indicated that it was not right and that it “boggles the mind” that a man would flip that way. Mr. Denis described it as “unimaginable” that Richard Lavoie and Michel Lavoie would not be beneficiaries in a will made by Lucien Trudel. Corrina Bonhomme described Lucien Trudel as being “withdrawn” after Madeleine’s death and that he was “not himself at all”. Mr. Trudel’s granddaughter, Brittany Lavoie, did not provide the court with any specifics with respect to her grandfather’s demeanour after the death of Madeleine. She did indicate that she “doesn’t believe Lucien would want to hurt us in any way” and that she “didn’t believe that he would have wanted any of this”.

[55] In his evidence, Michel Lavoie painted a picture of a close and loving relationship between him, his mother, Richard and Lucien Trudel. It was Mr. Lavoie’s evidence that this close relationship existed right up until the death of Lucien Trudel. In his evidence, Michel Lavoie did not point to any specific changes in Lucien Trudel after the death of Madeleine Trudel but did suggest that there must have been some difficulty with Mr. Trudel’s cognitive abilities and mental capacity to make such a drastic change to his will without cause or explanation. Richard Lavoie testified that after the death of his mother, Lucien Trudel was “like a beaten dog”, he was sad and really hurt. Richard describes Lucien as “not himself” and as having “lost a big part of his life”. Richard Lavoie also testified that Lucien Trudel could have made a new will but he should have written it differently. He testified that if Lucien had put everyone in the will, that is all of the children, then “it would have been fine”. This statement leaves the court with the impression that Richard Lavoie was more concerned with what the will provided for than Lucien Trudel’s mental capacity to make a new will. As with the evidence of Michael Lavoie, the evidence of Michel Lavoie was short on details and specifics about how Lucien Trudel changed and how his mental condition worsened after the death of Madeleine Trudel on November 27, 2007.

[56] It is unfortunate that the court did not have the benefit of evidence from the solicitor who received instructions from Lucien Trudel on December 3, 2007 and who prepared his last will and testament which was executed on December 5, 2007, namely, André Lacroix. Claude Lacroix, who is André Lacroix’s son and practiced in the same firm, Lacroix, Forest, was called by the plaintiffs as a witness. Although Claude Lacroix had no dealings with Lucien Trudel, he was able to give evidence concerning his father and his method of practice.

[57] Claude Lacroix has practiced law in Ontario since 1988. His father, André Lacroix, was a mentor to him and trained him, making him very familiar with the practices of his father. André Lacroix is a very experienced solicitor. He was born on November 18, 1931, making him 84 years old presently and 76 years of age at the time he took instructions from Lucien Trudel and prepared his last will and testament. André Lacroix was incapable of testifying due to his present medical condition. He suffers from dementia/Alzheimer’s disease. Claude Lacroix testified that at the time Lucien Trudel’s will was made in December 2007, that André Lacroix was competent and was not displaying any signs of difficulty. At that time, André Lacroix was fully and actively engaged in the practice of law. It was the evidence of Claude Lacroix that the Law Society of Upper Canada was notified of the difficulties that André Lacroix was experiencing in October 2010 and that in March 2011 a formal diagnosis of dementia was made with respect to André Lacroix.

[58] Entered as Exhibit 8 was a letter dated December 6, 2012 from Dr. Jo-Anne Clarke of the North East Specialized Geriatric Services in Sudbury, Ontario. In that letter, Dr. Clarke indicates that she is a consultant Geriatrician and has been following Mr. André Lacroix since May 2011. As of May 2011, “his diagnosis was dementia/Alzheimer’s disease and he would have been classified in the mild stage”. André Lacroix was reassessed by Dr. Clarke in March 2012. After that assessment, Dr. Clarke notes, “At that time, I concluded he was entering in the moderate stages of his dementia”. As to his ability to testify, Dr. Clarke states in the second full paragraph of her letter dated December 6, 2012:

It is my opinion that asking Mr. Lacroix to testify would be futile as there would be no way of ensuring that his memory was in fact accurate. Although, short-term memory is the first type of memory affected in dementia, eventually it progresses to involve longer-term as well. There would be no way to confirm whether any of Mr. Lacroix’s testimony would be reliable, and it likely would not be, as his memory was significantly impaired in both 2011 and 2012, as indicated both by subjective report from his family, and confirmed on the objective testing.

[59] Entered as Exhibit 2 is the handwritten notes of André Lacroix and his handwritten draft of the last will and testament of Lucien Trudel. Claude Lacroix indicated in his evidence that taking handwritten notes and drafting the document by hand would have been the usual practice of André Lacroix. Both the handwritten notes of André Lacroix and the draft will prepared by André Lacroix are in the French language. These documents have been translated into the English language, with the written translation filed as Exhibit 63A. The notes of André Lacroix are brief. It identifies the executors as son, Richard Trudel and Paulette Trudel. It identifies the beneficiaries as Lucien Trudel’s four children in equal shares, and the children are named as Richard Trudel, Paulette Trudel, Denise Champagne and Michel Trudel. The note makes mention of “leave to children” if one of the beneficiaries predeceases the testator. The notes of André Lacroix make no reference to any concerns about Lucien Trudel’s cognitive functioning or inability to make a will. It was the evidence of Claude Lacroix that it was his father’s practice to have identified capacity concerns in his notes if any such concerns existed. Because there is no such reference in his notes, Claude Lacroix’s view is that André Lacroix had no concerns about the mental capacity of Lucien Trudel to make a will.

[60] The evidence indicates that there were no drastic changes to the routine or lifestyle led by Lucien Trudel from the time of Madeleine Trudel’s death on November 27, 2007 to his own death on October 31, 2009. Lucien Trudel continued to operate a motor vehicle right up until the time he died. As Dr. Routhier indicated in her evidence, Mr. Trudel passed driving tests at the age of 80 and 82 which permitted him to continue to operate a motor vehicle. Lucien Trudel was able to keep his appointments, make decisions about his medical care and take his prescribed medication. Lucien Trudel followed his usual routine without difficulty – he would have coffee with friends in the morning, attend at the Knights of Columbus to play cards in the afternoon and watch a hockey game at home in the evening if it was hockey season. There is no evidence as to any alteration in the routine or habits of Lucien Trudel that would lead to the conclusion that he had cognitive difficulties or difficulties functioning.

[61] The plaintiffs point to the fact that the three physicians, Dr. Oliphant, Dr. Gill and Dr. Routhier, did not discuss with Lucien Trudel details about his family relationships, his will and the nature and extent of his property as an indication that they opine about Lucien Trudel’s mental capacity and whether he had a sound disposing mind to make a valid will. I disagree with that position. The physicians provided medical care to Lucien Trudel. They were not his financial planners. It is not unusual that the three physicians would not have discussed personal details about Mr. Trudel’s will or property with him. Such a discussion is not necessary for the physicians to conclude that Mr. Trudel had the capacity to make a last will and testament. In fairness, Dr. Gill indicated in his evidence that when he was talking about capacity, he was talking in terms of Mr. Trudel’s ability to make decisions about his treatment and medical care and that he had no concerns in that regard. Making decisions about treatment and medical care is a significant and serious matter. If an individual has the cognitive ability to make decisions about their medical care, they would have the cognitive ability to provide instructions concerning the preparation of their last will and testament and meet the test of having a “sound disposing mind” as set out in Hall v. Bennett Estate, 2003 7157 (ON CA), [2003] O.J. No. 1827.

[62] On a review of the totality of the evidence, I find as a fact that Lucien Trudel had the mental capacity to provide instructions for his last will and testament on December 3, 2007 and to execute his last will and testament on December 5, 2007.

The issue of undue influence

[63] It is the position of the plaintiffs that the last will and testament of Lucien Trudel dated December 5, 2007 should be declared invalid as a result of undue influence exercised on Lucien Trudel by the defendants Richard Trudel and Paulette Trudel.

[64] Undue influence is an equitable doctrine which can be invoked on two bases, namely, actual undue influence and presumed undue influence. In Goodman Estate v. Geffin, 1991 69 (SCC), [1991] 2 S.C.R. 353, the Supreme Court of Canada affirmed the common law doctrine of undue influence and referenced the case of Allcard v. Skinner, 36 Ch. D. 145 [1886-90] All E.R. 90 (C.A.), in explaining actual undue influence as follows:

There has been some unfair and improper conduct – some coercion from outside, some overreaching, some form of cheating, and generally, though not always, some personal advantage obtained by a done placed in some close and confidential relation to the donor.

Presumed undue influence recognizes that persons standing in certain relationships with another should be presumed to have influence over the other until the contrary is proven. This recognizes the ability of one person to dominate the will of the other “whether through manipulation, coercion, or outright but subtle abuse of power”. Goodman Estate v. Geffin.

[65] The case law has created a two-pronged test a plaintiff must meet to establish a presumption of undue influence. The inquiry must begin with an examination of the relationship between the parties. There are types of relationships which traditionally give rise to a presumption of undue influence, one such relationship being that of parent and child. The first question to ask is whether the potential for domination inheres in the nature of the relationship itself. The second question has to do with the nature of the transaction. In these situations, “The concern of the court is that such acts of beneficence not to be tainted. It is enough, therefore, to establish the presence of a dominant relationship.” Goodman Estate v. Geffin, at paras. 42 and 44.

[66] As noted earlier in these reasons, the plaintiffs have made a case to consider that “suspicious circumstances” exist with respect to the will of Lucien Trudel, dated December 5, 2007 on the basis of the test set out in Vout v. Hay, 1995 105 (SCC), [1995] 2 S.C.R. 876. The will was made by Lucien Trudel a very short period of time after the death of his wife, Madeleine Trudel. Lucien Trudel was in failing health. The defendant Richard Trudel and his wife Micheline Trudel drove Lucien Trudel to the office of André Lacroix on December 3, 2007. They remained in the room with André Lacroix while Lucien Trudel provided instructions to Mr. Lacroix concerning his will. Richard Trudel and Paulette Trudel attended with Lucien Trudel at the office on December 5, 2007 when Lucien Trudel executed his last will and testament. Richard Trudel and Paulette Trudel are the named executors of Lucien Trudel in his will. Richard Trudel and Paulette Trudel are named beneficiaries in the will of Lucien Trudel. Richard Trudel and Paulette Trudel are the children of Lucien Trudel who is elderly and in failing health. In my view, these facts raise “suspicious circumstances” and a presumption of undue influence.

[67] The presumption of undue influence is a rebuttable presumption. Once the plaintiff has established that the circumstances trigger the presumption, the onus shifts to the defendant to rebut it. As set out in Goodman Estate v. Geffin at paragraph 45:

As Lord Guershed MR stated in Zamet v. Hymn [citation omitted], the plaintiff must be shown to have entered into the transaction as a result of his own “full, free and informed thought”. Substantively, this may entail a showing that no actual influence was deployed in the particular transaction, that the plaintiff had independent advice, and so on. Additionally, I agree with those authors who suggest that the magnitude of the disadvantage or benefit is cogent evidence going to the issue of whether influence was exercised.

[68] After a presumption of undue influence is established, the onus shifts and the propounder of the will has the legal burden to prove the testator’s knowledge and approval thereby establishing the validity of the will.

[69] I find it highly unusual that Richard Trudel would have been present when Lucien Trudel gave instructions to André Lacroix on December 3, 2007 with respect to the preparation of his last will and testament. Claude Lacroix in his evidence indicated that it was the usual practice of his father, André Lacroix, to be alone with the testator when he or she was providing instructions with respect to the preparation of their last will and testament.

[70] Why Richard Trudel was present with his father when he met with André Lacroix on December 3, 2007 is explained by the wife of Richard Trudel, Micheline Trudel, who was called as a witness by the plaintiffs. It was the evidence of Micheline Trudel that Lucien Trudel called her home and indicated to her that he wanted to make a new will and he inquired of Mrs. Trudel whether she knew a French speaking lawyer that he could go to. Micheline Trudel had at one time been employed at the Lacroix Forest law firm and knew that André Lacroix was bilingual. Richard Trudel made the appointment for his father for the same day, December 3, 2007 a 2:00 p.m. Micheline Trudel testified that Lucien Trudel drove over to their home and that all three of them drove to Mr. Lacroix’s office in Richard Trudel’s vehicle. Mrs. Trudel testified that Lucien Trudel insisted that his son and daughter-in-law go into Mr. Lacroix’s office with him, indicating that “he had no secrets”. According to Micheline Trudel, Mr. Lacroix agreed with this and Mr. Lacroix brought the three of them into his office. Mr. Lacroix spoke in French to Lucien Trudel. According to Micheline Trudel, Mr. Lacroix asked Lucien Trudel some general questions about the date, time of day, where he was and why he was there. In response to the latter question, Lucien Trudel replied “I am here because I want to make another will”. When asked by Mr. Lacroix what he wanted in his will, he indicated that he wanted his biological children to be the equal beneficiaries and he named his children, Richard Trudel, Paulette Trudel, Denise Champagne and Michel Trudel. Lucien Trudel indicated to Mr. Lacroix that his child Gerry had died previously. Micheline Trudel testified that Mr. Lacroix presented Lucien Trudel with two options to consider if one of his children predeceased him, one option to leave that share to his remaining children and one option to leave that person’s share to his children and Lucien Trudel chose the second option.

[71] It was the evidence of Micheline Trudel that Lucien Trudel told Mr. Lacroix that he was previously married and that Mr. Lacroix was aware that Lucien’s wife had died just a few days before their meeting. Micheline Trudel testified that Lucien Trudel did not tell André Lacroix about Michel Lavoie or Richard Lavoie and that Mr. Lacroix did not inquire about whether or not Lucien Trudel had any step-children. Micheline Trudel testified that at the end of his meeting with Lucien Trudel, Mr. Lacroix was shown the 1983 will. Micheline Trudel did not know whether that was the will of Lucien Trudel or Madeleine Trudel but, in any event, Mr. Lacroix indicated that will was “not good anymore because he now had a new will” and tore up the 1983 will that he was provided with an placed it in the garbage dispenser in his office”.

[72] Micheline Trudel testified that during the December 3, 2007 meeting, Mr. Lacroix inquired about Lucien Trudel’s health and that Lucien told him that he had cancer and asthma but that he was feeling ok. Mr. Lacroix did not ask Lucien Trudel anything about the details of his finances or assets when he met with him. It was the evidence of Micheline Trudel that Lucien Trudel instructed Mr. Lacroix that he wanted everything split equally between his four biological children, whom he named and that Lucien Trudel was firm in those instructions to André Lacroix.

[73] Micheline Trudel testified that Mr. Lacroix hand drafted the will in their presence and read back to Lucien Trudel what he had grafted and that Lucien Trudel replied “yes, that is what I want”. Lucien Trudel was not asked by André Lacroix why he was excluding the plaintiffs, Michel Lavoie and Richard Lavoie from his will. Micheline Trudel indicated in her evidence that at the December 3, 2007 meeting Mr. Lacroix asked about a power of attorney and that Lucien Trudel provided him with instructions. Micheline Trudel testified that Mr. Lacroix explained to Lucien Trudel the purpose of a power of attorney. At no time during this meeting on December 3, 2007 did André Lacroix ask Richard Trudel or Micheline Trudel to leave the room when he was obtaining instructions from Lucien Trudel.

[74] Micheline Trudel was clear in her evidence that neither she nor Richard Trudel knew of Lucien Trudel’s wishes or what he intended with respect to his will prior to him giving instructions to André Lacroix. Micheline Trudel indicated that what was in the will was not discussed and that Lucien Trudel was not directed in any way with his will. As Micheline Trudel put it, “He had his own mind”, referring to Lucien Trudel.

[75] The defendants, Richard Trudel and Paulette Trudel, did not testify at the trial. Portions of their examinations for discovery were read into the record by the plaintiffs as part of the plaintiff’s case. Much of what was read in from the examination for discovery of Richard Trudel was not that helpful to the court in that it dealt with inter vivos gifts made by Lucien Trudel to Richard Trudel and the disposition of assets after Lucien’s death. There were some relevant and helpful portions of the examination for discovery of Richard Trudel held on February 28, 2013 read into the record as follows:

Q. So can you tell me – tell me exactly what happened in that conversation, the day that Lucien came to you and said this is what I have? Just tell me about the day?

A. Of what happened?

Q. When Lucien found his 1983 Will?

A. He just told me that he wanted to make another Will.

Q. So did he show it to you?

A. Well, yeah. He showed me the Will the day he got it at Leo Dennis’.

Q. Okay. So he went to go get the Will, he comes to your house, is that correct?

A. No. We went to his house.

Q. You went to his house.

A. We were at his house that day.

Q. Okay. So he shows you the Will?

A. Mm-hmm.

Q. Says I want to make another Will?

A. Yeah.

Q. And then you asked him why?

A. And I asked him why and that’s when he said because we weren’t in the Will. And right away he wanted to put us in the Will.

Q. Okay. Did you ask him how he wanted to change the Will?

A. Yeah, we did.

Q. Okay. And what did he tell you?

A. And he says he want to put just the four of us in the Will. And we even asked him why you want to do that, he says, I’ve got my reasons. That’s all he ever said. He never – and he was a stubborn man too, so – we even tried – okay. We even tried to change – after he made the Will, we even tried to change the Will. We asked him many times to change the Will to put it between the six of us and he never wanted to.

Q. So you wanted to include the Lavoies?

A. Oh, yeah.

Q. Okay. And he just – the reason he says they’re not included was he had his reasons?

A. He had his reasons, so—

Q. Did you ever approach the subject with him again?

A. No.

Q. Did any of your siblings –

A. Because – oh, I don't know.

Q. Okay.

A. That, I don't know.

Q. Sorry, why did you say that you didn’t approach the subject with him again?

A. Because we never talked about it. I mean, after he made the Will, we never talked about it after.

Q. Okay. So he says to you I have this Will –

A. He asked – oh, sorry. Sorry, no, go ahead.

Q. No, go ahead. Finish your sentence.

A. His – I forget what I was going to say.

Q. Okay. He tells you I want to make a new Will and then what happens?

A. Well, that’s when he asked me that if I knew any lawyers, a French lawyer. And that’s when we decided to go with Mr. Lacroix.

Q. Okay. And why – and was Mr. Lacroix someone that you knew?

A. No.

Q. So how did you come –

A. This was a French lawyer. Looked in the phone book and we seen Lacroix.

Q. Okay. So you just – you looked it up with him, did you look it up that day?

A. Well, it wasn’t him that was doing the work, it was us. Because my dad he would ask us if we knew anybody, then we looked for lawyers and that’s when we seen Lacriox, so...

Q. Did you – was that the same day?

A. I can’t recall.

Q. And who called Mr. Lacroix to make the appointment?

A. I don't remember. I don't remember if we called him or if we went there. I’m not sure.

Q. Okay. So you might have –

A. We might have drove there and we might have – I don't recall exactly the – what happened.

Q. So you don't know if you made an appointment in advance?

A. No.

Q. Okay.

A. All I know is I remember going to Mr. Lacroix with him, so...

Q. Okay. So when Lucien went to go get the 1983 Will, did anyone go with him?

A. No. He went to Leo Dennis’ and got it at Leo Dennis’.

Q. So after your father told you I’m not including the Lavoies, I have my reasons for it, you never brought up the subject with him again?

A. No. Well, after that – like, he lived for two years after that. We asked him many times, like, how come you didn’t want Rick and Mike in the Will and that’s when he said – he said he has reasons.

Q. So he never talked about the reasons why the 1983 Will was done?

A. No.

Q. Did he ever bring up the conditions under which the 1983 Will was done?

A. I don't even think he remembered about it until he seen it, so...

Q. And why do you say that?

A. Well, I don't know. It’s just because – because when he asked for the Will, that’s when he knew what was doing on. So unless he – the years before, in ’81 or ’83, when he made the Will, so I don't know if he remembered about it or not, so...

Q. So you said that you recalled driving Lucien to Mr. Lacroix’ office, can you tell me what happened after you drove Lucien to Mr. Lacroix’ office?

A. Yeah. We went in and we talked – we talked to the secretary and she – and we told her what we wanted to do and then Mr. Lacroix came and talked to us. And we went and talked to him in his office.

Q. Okay. When you say we, who was there?

A. There was me, my dad and my wife.

Q. Okay. So you tell the secretary – who spoke to the secretary, was it you or was it –

A. Yeah, it was me.

Q. Okay. And what did you tell the secretary?

A. I just say my dad is coming here and he wants to make a Will.

Q. Did you tell her what you dad wanted in the Will?

A. No.

Q. Okay. So Mr. Lacroix comes out and then what happens?

A. And then Mr. Lacroix brought him in and he asked him – he told him that you – that he was going to make a Will. So he asked –

Q. Okay. How do you know what Lucien told Mr. Lacroix?

A. Well, we were there.

Q. You were in the room with Mr. Lacroix –

A. Yeah.

Q. – and Lucien?

A. Yeah.

Q. Okay. And did you –

A. Because Mr. Lacroix says do you want to come in and talk to me by myself? My dad says, no. He said I got no secretes.

Q. So you were in the room when Lucien gave instructions to Mr. Lacroix?

A. Yes, we were.

Q. Okay. Were you there the whole time?

A. Yes, I was.

Q. And did Mr. Lacroix draft the Will in one shot? Like, was it kind of –

A. It wasn’t made the same day. Like, he asked my dad all kind of questions and he went and picked it up, like, two, three days after.

Q. Okay. So what kind of questions did he ask Lucien?

A. At first he ask him what time it was. He asked him what his name was. He asked him where he lived. He asked him – what was the other question. He asked him three or four questions before he started proceeding with the Will, what he wanted done in the Will.

Q. Was he making notes the whole time that Lucien was speaking?

A. I think he was.

Q. Okay. So he asked Lucien a couple of questions, time, date, where he lived, anything else that you can remember that he asked?

A. (No verbal response.)

Q. Okay. So – sorry, that was a no?

A. That was a no, sorry.

Q. Okay. So I’m just trying to get an understanding –

A. Yeah.

Q. – on exactly step by step what happened. So you walk in, you go in with you, your wife, your father sit down with Mr. Lacroix?

A. Yeah.

Q. Your father – Mr. Lacroix –

A. Mr. Lacroix would ask my father the questions.

Q. Okay. So –

A. The only – oh, go ahead.

Q. Go ahead.

A. The only questions that he – my dad would ask me is when it came to the nephews and nieces and that because he didn’t remember their names.

Q. He didn’t remember their names?

A. No. Because – well, he didn’t see them all the time, so...

Q. Okay.

A. The only one he knew lots was more like Rick’s and Mike because they were there more often when they were young, so...

Q. And was Mr. Lacroix there when Lucien asked for your help to name the nieces and nephews?

A. Well, yeah. He’s the one that asked my dad the questions.

Q. Okay. So did he ask – what else did Mr. Lacroix ask Lucien?

A. Well, he just asked him who wanted to be – who did he want to put in the Will.

Q. Okay. Did Mr. Lacroix ask him if there was anyone else that was going to be included in the Will?

A. Yeah. And my dad said no.

Q. Okay. Did Mr. Lacroix ask Lucien if he had any other children?

A. Yes, he did.

Q. And what did Lucien say?

A. And, like I said, he had Rick and Mike. He had – like, that he raised Rick and Mike.

Q. Okay. And –

A. But he didn’t want them in the Will.

Q. Okay. And did Mr. Lacroix ask why he did not want him in the Will?

A. I can’t recall. I can’t answer that.

Q. Did Mr. Lacroix ask your father any – any questions about his finances?

A. Not when I was there.

Q. Did he ask him any questions about the assets that he owned?

A. No. All he said – all he asked him is what – after who was going to be in the Will and who was going to – how they would split it up and who’s going to be the Power of Attorney. I think Mr. Lacroix asked him those questions and that’s when he said I’d like to put Pauline and Rick as Power of Attorney.

Q. Okay. So you did the Power of Attorney at the same time?

A. Yeah. He did everything at the same time, yeah.

Q. And did Mr. Lacroix explain to Lucien what the Power of Attorney – what authority the Power of Attorney –

A. Yes, he did.

Q. Okay. And what did he say exactly to Lucien?

A. About the Power of Attorney?

Q. Mm-hmm.

A. He told me that the Power of Attorney is only if he loses his memory or something that he can’t – doesn’t know anything or whatever. And we’re the ones that has to do – use the Power of Attorney.

Q. Okay. And did he explain to your father or did he ask your father what kind of power the Power of Attorney can have, for example, what kind of things the Power of Attorney can do?

A. I don't recall.

Q. So was the Power of Attorney prepared that day that you went in with –

A. No.

Q. – Lucien?

A. We didn’t get nothing that day. It was just two, three days after when he – I guess he just asked him the questions, he took notes and then we picked it up two, three days after.

Q. Okay. Did he ask you any other questions about Lucien’s family?

A. About Lucien’s family?

Q. Mm-hmm. If he had any siblings? Did he ask him if he had- if his wife was still living? Did he ask him any of those questions?

A. Oh, yeah, yeah. He asked him, yeah. He told him that he had lost his wife, like, five or six days before and –

Q. Okay. And did Mr. Lacroix ask him how he was dealing with his wife’s loss?

A. Yeah. He said he was okay.

Q. He was okay. Any other questions that Mr. Lacroix asked?

A. I can’t recall.

Q. So how long was the meeting?

A. How long was the meeting?

Q. Mm-hmm.

A. I’d say about half an hour.

Q. For half an hour. So he didn't ask him if he had a house? If Lucien owned a house?

A. Well, yeah. He must have asked him – well, yeah. Sure he did.

Q. Did he –

A. He must have asked him if he had – well, yeah. He did, yeah. He did.

Q. Okay.

A. He had a house and then he asked him what – what do you want in the Will. That’s when my dad – he sked him – mostly he asked him what he wanted to put in the Will, who he wanted to put in the Will. And that’s when my dad come out and he told him what he wanted in the Will.

Q. Okay. But did he ask him – what I’m trying to find out is if Mr. Lacroix asked him do you own a house, that kind of question, that specific question?

A. Well, okay. If he did, I can’t recall him saying that.

Q. Okay. Did he ask him how many bank accounts he had?

A. No, I don't think so.

Q. Okay. Did he take down – did Mr. Lacroix take down any contact information for anyone?

A. I don't recall. No, I don't think so.

Q. Did he take down – did he take down –

A. Unless he –

Q. – his kids?

A. Maybe he took my phone number to find out for contact, yeah.

Q. Okay.

A. That’s possible. Because I’m the one who was there with him, so...

Q. So the meeting was a half an hour?

A. Well, I say about half an hour.

Q. Approximately a half hour, okay. You were in the meeting with your wife and your father and Mr. Lacroix took general instructions on how your father wanted to divide the Will. So what happened after that?

A. What happened after that?

Q. Mm-hmm. After Mr. Lacroix took all the notes?

A. Well, then we left.

Q . How do you know he called your father?

A. Because he told me. And we went back to pick up the Will.

Q. Okay. Did you go with – did you drive your father to Mr. Lacroix’ office?

A. My dad – my dad – my dad always used to drive to my place. And from there we take his car and he says, okay, you drive. And whatever appointments he had I would go with him.

Q. Okay. So you drove him back to Mr. Lacroix’ office?

A. Yes.

Q. Okay. And then what happened?

A. Well, then he went up and he talked to Mr. Lacroix. And Mr. Lacroix just showed him the Will and he – he read the Will to my dad, whatever he had in the Will. And he asked my dad if he wanted it and my dad said yeah.

Q. Okay. And were you in the room with him when he did this?

A. Yes, I was.

Q. Okay. So you go in, did you see the secretary when you came in?

A. When I came in?

Q Mm-hmm.

A. Yeah. Because we told him that we came in to pick up the Will.

Q Okay. So you and –

A. And then one of the secretaries went in after to sign something with – as a witness, I guess, it’s called.

Q. Okay. So goes in –

A. Mr. Lacroix called the secretary to come in as a witness to sign when my dad was signing the papers.

Q. Okay. So, sorry, I’m going to slow you down. So you and your father go into Mr. Lacroix’ office and did Mr. Lacroix’ read the Will to your father or did your father read the Will himself?

A. Mr. Lacroix read it.

Q. Okay. Did he ask your father if he had any questions?

A. Yes, he did.

Q. And what did your father say?

A. He said no.

Q. Okay. Did he ask your father if the Will reflected his intentions or something to that effect?

A. He asked him if that’s what he wanted in the Will and he said yeah.

Q. Okay. And did he, at that point, ask him any questions about his finances?

A. No.

Q. Did he ask him any questions about property that he owned?

A. No.

Q. Did he ask him any questions about his family, his – for example, Richard Lavoie and –

A. No.

Q. So what other questions did he ask that day that you remember?

A. I don't remember. Really he didn’t ask too many questions actually because we were only going there to pick up the Will. So he just told him – he read what was in the Will and that was it.

Q. Did he ever try to call Mr. Lacroix back?

A. Well, if he did, he never told me.

Q. During the two appointments, both appointments, being the first one where your father gave instructions on the Will and the second appointment where your father actually signed the Will, were you in the office the whole time?

A. Yes.

Q. So you were never asked to leave?

A. No. Well, yeah. Mr. Lacroix asked my dad do you want to come into the office. My dad says, well, can he come too because I got nothing to hide, that’s all – I think Mr. Lacroix possibly wanted him there alone and my dad said he had no secret s, that he wanted us in the room, so...

Q. Okay. But –

A. He says, okay, come in.

Q. So even after your father says to him I want to leave everything to my son and my other three kids, Mr. Lacroix didn’t ask you to leave or –

A. No.

Q. – didn’t double check with – anything with Mr. – with Lucien, he just took his instructions?

A. Yeah.

Q. Okay.

A. All I know is before he signed he just said, are you sure that’s what you want, Lucien? And my dad said, yeah.

Q. And you’re sure because you were in the room?

A. Yeah. Because I was in the room, yeah.

Q. Okay. Did Lucien ever discuss the meeting with you afterwards?

A. The meeting?

Q. Yeah. The meeting with Mr. Lacroix, did he ever talk about it again with you?

A. No, not really.

Q. Okay.

A. After that – after he had the Will we – he opened up a thing at the Caisse Populaire and that’s where he put it. He put the Will in a safety deposit box.

Q. Okay. And did he ever – do you know if he ever spoke to any of your other siblings about the Will?

A. He must have.

Q. Okay. Why do you say he must have?

A. Well, I wasn’t there when he did. If he did, I –

Q. Okay. But why do you think that he did?

A. Well, he must have talked to Paulette because Paulette knew about it.

Q. Okay. Do you know if anyone else knew about it before he passed away?

A. I don't know.

Q. Okay. Did he –

A. Well, it’s probably just like them. They didn’t know about it neither just like we didn’t know about the first Will, so...

Q. Did he tell you at any point before the meeting with Mr. Lacroix that he wanted you and Paulette to be his executors?

A. He talked to me about – he wanted – he asked me if I wanted to be his executor or his Power of Attorney or whatever.

Q. And when did he talk to you about that?

A. The day that we were going there.

Q. Oh, the day that you were going to –

A. Yeah, yeah.

Q. And was that the same day that he told you I have the 1983 Will, I want to change it?

A. No.

Q. Was it different days?

A. When –

Q. Okay. Sorry, go ahead. So the question I had asked was if you went to go see Mr. Lacroix on the same day that your father said I want to make a new Will?

A. If we went and seen Mr. Lacroix the same day?

Q. That your father told you he wanted to make a new Will?

A. No. The day that my dad told me he wanted to make a new Will, I think, it was like on a weekend or something. And we probably went there a couple of days after when we got a hold of him, as soon as we get an appointment.

Q. Okay. So it was a few days – a few days after he told you I want to make a new Will and that was a few days after Madeline passed away, so –

A. Yeah.

Q. Okay. So you said you had an appointment –

A. After he read the Will. After he read the other Will that’s when he talked to us about it.

Q. Okay.

A. Talked to me about it.

Q. That’s the day he asked you if you wanted to be executor?

A. Yeah.

Q. And you said yes?

A. And Paulette wasn’t there that day.

Q. Okay. Did he tell you he was going to ask Paulette to –

A. Yes, he did.

Q. You don't know. Did Mr. Lacroix ever contact you after he prepared your father’s Will?

A. No.

Q. Did he – do you know if he contacted any of your siblings?

A. Not that I know of. I think Mr. Lacroix only had my phone number and my dad’s phone number.

Q. Did you find it strange that he included Mike in the Will when Mike had never been there for him?

A. Because, I guess, he wanted him in the Will. I didn’t answer – I didn’t question his Will because that’s what he wanted in the Will.

Q. But I’m asking your opinion, if you thought that –

A. Yeah.

Q. – was strange?

A. I’m just saying I don't know. I don't know why he put him in the Will. I guess he wanted him in the Will because he was still his son.

Q. Okay. And that’s your opinion?

A. Yeah.

Q. Okay. But did you think it was – did you think it was strange that he did that?

A. No.

Q. Even though he didn’t include the Lavoies who had been there to help him in the years –

A. Well, I guess, the way that he looked at it was probably that it’s my kids and I want to put my kids in the Will. That’s the way he looked at it. I want my kids in the Will.

Q. But you also indicated that he treated Richard and Michael as his children as well?

A. Yeah.

Q. So do you think that there was maybe another reason why he didn’t want to ...

A. Like I said –

Q. You don't know?

A. – I didn’t – I don't know. I can’t answer that.

Q. Okay. So just to wrap up those questions there as well, do you recall if Mr. Lacroix discussed with your father what the purpose of a Will was?

A. Yes, I do.

Q. Okay.

A. He asked him why he wanted a Will because he wanted to put us in the Will.

Q. Okay. But did he ask – did Mr. Lacroix ask your father or tell your father this is the effect of a Will? This is what you’re doing by creating a Will, anything of that nature?

A. Not that I recall.

Q. Okay. So he just assumed that your father knew what a Will was?

A. Yeah, I guess so.

Q. And did he ask specific questions from your father about whether he owned any joint property?

A. I can’t recall that.

Q. Okay. So –

A. All I could recall is that when he did ask him questions he’d repeatedly ask him are you sure that’s what you want, are you sure that’s what you want.

Q. So that’s with respect to the instructions –

A. Oh, yes. Every time he asked him a question, he asked him are you sure that’s what you want and he would say yes or he would say no or...

Q. Okay. And how many times did he ask him if he was sure that’s what he wanted; do you recall?

A. I’m sure he asked him three, four times.

Q. Sorry?

A. At least, three, four times.

Q. Three or four times.

A. Even at the end when he – before he signed, are you sure that’s what you want in the Will and he said yeah.

Q. Okay. But did he ask him if he owned any joint property, say your house is it owned jointly with someone?

A. I don't recall.

Q. Okay. Did he also talk to him about the fact a lawsuit down the road?

A. No.

Q. Okay. I don't recall that.

A. And did he indicate that by leaving out Richard Lavoie and Michael Lavoie that maybe they would sue the estate?

A. No. He never said that.

Q. Okay. So he never had any of those discussions with him?

A. No.

Q. Did you ask him if he was planning on making any gifts to Richard or Michael?

A. No, I didn't.

Q. Okay. Did you think –

A. He had his own mind.

Q. Okay. Did you think that it was odd that he wasn’t giving them anything?

A. Well, we did – I did ask him many times. How come you didn’t include Mike and Ricky in the Will, so – and he said what I did with the Will, that’s what I want to do, so...

Q. Okay. So you didn’t ask him any –

A. Why he didn't want to put him in the Will, no, I didn't ask that question.

Q. And what about the gifts, you didn’t ask him why –

A. No.

[76] With respect to the examinations of discovery of Paulette Trudel held on March 1, 2013, it appears from her evidence that she accompanied Lucien Trudel and Richard Trudel to the office of André Lacroix on December 5, 2007 when Lucien Trudel executed his last will and testament and power of attorney. As with the discovery of Richard Trudel there was part of her transcript that was read in that was not that helpful to the issues before the court. There were portions of her examination of discovery that was of interest and informative as follows:

A. ...And we did – I did – we did mention that to M Lacroix, just Rick and I, like we don't understand how come my dad didn’t put the boys on – in the Will. That was – it was just talked about, it wasn’t – nothing was written down, nothing was – we just talked.

Q. What did Mr. Lacroix say when you told him that you didn’t understand why your dad hadn’t included Richard –

A. He didn’t say nothing. We just – I just mentioned it. It was me that mentioned it and not Risk.

Q. Had you –

A. It was just a talk – it was just talked and that was it.

Q. Had you met him before, Mr. Lacroix?

A. No. That was my first time.

Q. That was your first time, okay. And did you talk to your siblings about what they thought about your father’s Will not including –

A. Yes.

Q. And what did your siblings say?

A. We all said the same thing.

Q. So you and Richard thought that Mike and Richard Lavoie should have been included?

A. Should have been included.

Q. And your sister?

A. My sister said the same thing. My brother said the same thing.

Q. And Michael said the same thing?

A. Mm-hmm. That was my dad’s choice. That was...

Q. Okay. So you all thought they should have been included, but they weren’t included. Okay. So I’ve digressed a little bit from where I was going, but we’ll come back to that in a little bit. So we had said that you thought Lucien had respected Madeline and had respected her wishes, so you don't have any idea as to why he went against her wishes and made the new Will?

A. No.

Q. He never discussed that with you?

A. No, no.

Q Okay. Do you have any idea why he would have excluded them from the Will?

A. No, I don't.

Q. Did you ever ask him?

A. Yeah. And he didn’t answer. He didn’t – he says, that’s what I want to do. He kept on saying all the time that’s what I want to do. C’est ça qu’est-ce que je veux faire, like, you know in French.

Q. And did you try to convince him otherwise?

A. Well, yes, we did. We told him that it would be fair that if they were on there. And that didn’t change his mind. It was the same thing with my brother, when we wanted my brother to be included in one part of the money, he didn’t want to, what do you want us to do.

Q. What part of the money are you speaking about?

A. Well, you’ll probably ask me that later. The money there that – the fourteen thousand dollars that we split –

Q. Did he tell you what his plans were for his new Will?

A. No.

Q. He just asked you if you wanted to –

A. No.

Q. – be the executor?

A. It’s Richard and him that did it. I didn’t even know they were going to the – to the lawyer’s to get this done.

Q. When did you find out about it?

A. When they got it done.

Q. Did –

A. That day I think even.

Q. Did Lucien tell you?

A. No. My brother Richard called me and told me – no. My brother Richard told me. My dad didn’t tell me.

Q. Was that the day that – the first day or the day he signed it; do you know?

A. Oh, I’m not sure.

Q. Did Lucien ever give you an exact reason why he wanted to prepare a new Will?

A. He just said – he didn’t tell me he was going to make one when he went. But he did say when he did read the Will, that was going to change.

Q. And he didn’t tell you why it –

A. No.

Q. – was going to change? Okay. Did he ask for your help to prepare the new Will?

A. No.

Q. Did you find it odd that Lucien wanted to make a new Will so shortly after Madeline had passed away?

A. No. I would have done the same.

Q. Did he ever tell you that he felt bad about excluding Michael and Richard from the Will?

A. No.

Q. Did he ever tell you anything about how he felt about excluding them from the Will?

A. No.

Q. Do you know how Lucien came to find Mr. Lacroix?

A. I don't know.

[77] In my view, the evidence of Micheline Trudel and the parts of the transcript from the examination for discovery of Richard Trudel read into the record, referred to earlier, rebut the presumption of undue influence. There was no evidence led by the plaintiffs to contradict the following facts:

a) Lucien Trudel took the initiative to make a new will;

b) Lucien Trudel asked Micheline Trudel to make an appointment for him to see a French speaking solicitor;

c) None of the beneficiaries knew about Lucien Trudel’s intentions prior to him providing instructions to Mr. Lacroix;

d) The provisions of the will were not discussed between Lucien Trudel, Richard Trudel or Micheline Trudel prior to Lucien Trudel providing instructions to Mr. Lacroix;

e) Lucien Trudel was asked several times by Mr. Lacroix of his instructions to leave his estate equally to his four named biological children was what he wished and Lucien Trudel replied in the affirmative;

f) Lucien Trudel confirmed his approval of the contents of the December 5, 2007 will before he signed it;

g) André Lacroix allowed Richard Trudel and Micheline Trudel to be present when Lucien Trudel provided his instructions to him and at no time during the meeting asked them to leave;

h) The notes of André Lacroix do not reflect any concerns about Richard Trudel being in the office with his father or any concerns about the exercise of influence on Lucien Trudel by Richard Trudel.

[78] In considering the totality of the evidence, I do not find that there was any undue influence exercised on Lucien Trudel and I do find that the last will and testament dated December 5, 2007 was freely and voluntarily made by Lucien Trudel.

The claim of quantum meruit for unjust enrichment

[79] In their fresh as amended statement of claim dated January 13, 2010, the plaintiffs claim damages on a quantum meruit basis. The basis of the claim is set out in paragraphs 21 and 22 of the statement of claim as follows:

The plaintiffs plead that they expended a great deal of time providing care and services to Lucien and for the benefit of Lucien and are entitled to be rendered payment on a quantum meruit basis.

Lucien’s estate has been unjustly enriched as a result of the services which were provided by the plaintiffs and the plaintiffs should be compensated for their services to avoid unjust enrichment.

[80] The particulars of the services that the plaintiffs allege that they provided to Lucien Trudel is set out in paragraph 11 of the fresh as amended statement of claim as follows:

As they grew into adulthood and for all of the years after Madeleine’s death, Michel and Richard continued to share a close relationship with Lucien, Michel and Richard performed the following services for Lucien:

a. Delivering groceries to Lucien;

b. Performing repair and maintenance work on Lucien’s residence, including shovelling snow, cleaning the carpet, removing the dining room floor and adding linoleum flooring in the kitchen and dining area;

c. Planting trees on Lucien’s property;

d. Applying driveway sealer once a year;

e. Painting the interior walls of Lucien’s residence;

f. Driving Lucien to and from social engagements;

g. Driving Lucien home from social events where he had been drinking;

h. Cutting grass;

i. Assisting Lucien with making a WSIB claim?

j. Setting up cable TV;

k. Accompanying Lucien to medical appointments;

l. Offering support and acting as interpreter for Lucien at medical appointments when the doctor or nurse did not speak French;

m. Translating medical test results to Lucien where the results were in English only/;

n. Babysitting Lucien’s dog;

o. Bringing Lucien hot meals;

p. Running errands for Lucien;

q. Bringing Lucien homemade meals whenever he was staying in the hospital;

r. Doing laundry; and

s. Providing love and companionship to Lucien.

[81] At the heart of the doctrine of unjust enrichment lies the notion of restoring a benefit which justice does not permit one to retain. Peel (Regional Municipality) v. Canada, 1992 21 (SCC), [1992] 3 S.C.R. 762 (S.C.C.).

[82] To succeed in a claim for unjust enrichment, the plaintiff must show:

(1) That the defendant was enriched;

(2) That the plaintiff was correspondingly deprived; and

(3) That no juristic reason exists to deny the recovery for the defendant’s enrichment.

Garland v. Consumers Gas Co., 2004 SCC 25, [2004] 1 S.C.R. 629

[83] The first and second steps in the unjust enrichment analysis concerns first, whether the defendant has been enriched by the plaintiff and second, whether the plaintiff has suffered a corresponding deprivation.

[84] Unjust enrichment and the remedies including constructive trust and monetary award were analyzed in the case of Kerr v. Baranow, 2011 SCC 10, 1 S.C.R. 269 (S.C.C.). The Supreme Court of Canada per Cromwell J. (McLachlin C.J.C., Binnie, LeBel, Abella, Charron, Rothsteien JJ. Concurring) in paragraphs 38 to 41, 44 and 45 wrote:

[38] For the first requirement — enrichment — the plaintiff must show that he or she gave something to the defendant which the defendant received and retained. The benefit need not be retained permanently, but there must be a benefit which has enriched the defendant and which can be restored to the plaintiff in specie or by money. Moreover, the benefit must be tangible. It may be positive or negative, the latter in the sense that the benefit conferred on the defendant spares him or her an expense he or she would have had to undertake (Peel, at pp. 788 and 790; Garland, at paras. 31 and 37).

[39] Turning to the second element — a corresponding deprivation — the plaintiff’s loss is material only if the defendant has gained a benefit or been enriched (Peel, at pp. 789-90). That is why the second requirement obligates the plaintiff to establish not simply that the defendant has been enriched, but also that the enrichment corresponds to a deprivation which the plaintiff has suffered (Pettkus, at p. 852; Rathwell, at p. 455).

[40] The third element of an unjust enrichment claim is that the benefit and corresponding detriment must have occurred without a juristic reason. To put it simply, this means that there is no reason in law or justice for the defendant’s retention of the benefit conferred by the plaintiff, making its retention “unjust” in the circumstances of the case: see Pettkus, at p. 848; Rathwell, at p. 456; Sorochan, at p. 44; Peter, at p. 987; Peel, at pp. 784 and 788; Garland, at para. 30.

[41] Juristic reasons to deny recovery may be the intention to make a gift (referred to as a “donative intent”), a contract, or a disposition of law (Peter, at pp.990-91; Garland, at para. 44; Rathwell, at p. 455). The latter category generally includes circumstances where the enrichment of the defendant at the plaintiff’s expense is required by law, such as where a valid statute denies recovery (P.D. Maddaugh, and J. D. McCamus, The Law of Restitution (1990), at p. 46; Reference re Excise Tax Act (Canada), 1992 69 (SCC), [1992] 2 S.C.R. 445 (S.C.C.); Mack v. Canada (Attorney General) (2002), 60 O.R. (3d) 737 (Ont. C.A.)). However, just as the Court has resisted a purely categorical approach to unjust enrichment claims, it has also refused to limit juristic reasons to a closed list. This third stage of the unjust enrichment analysis provides for due consideration of the autonomy of the parties, including factors such as “the legitimate expectation of the parties, the right of parties to order their affairs by contract (Peel, at p. 803).

[44] Thus, at the juristic reason stage of the analysis, if the case falls outside the existing categories, the court may take into account the legitimate expectations of the parties (Pettkus, at p. 849) and moral and policy-based arguments about whether particular enrichments are unjust (Peter, at p. 990). For example, in Peter, it was at this stage that the Court considered and rejected the argument that the provision of domestic and childcare services should not give rise to equitable claims against the other spouse in a marital or quasi-marital relationship (pp. 993-95). Overall, the test for juristic reason is flexible, and the relevant factors to consider will depend on the situation before the court (Peter, at p. 990).

[45] Policy arguments concerning individual autonomy may arise under the second branch of the juristic reason analysis. In the context of claims for unjust enrichment, this has led to questions regarding how (and when) factors relating to the manner in which the parties organized their relationship should be taken into account. It has been argued, for example, that the legislative decision to exclude unmarried couples from property division legislation indicates the court should not use the equitable doctrine of unjust enrichment to address their property and asset disputes. However, the court in Peter rejected this argument, noting that it misapprehended the role of equity. As McLachlin J. put it at p. 994, “It is precisely where an injustice arises without a legal remedy that equity finds a role.” (See also Walsh v. Bona, 2002 SCC 83, [2002] 4 S.C.R. 325 (S.C.C.), at para. 61.)

[85] Out of all of the witnesses called by the plaintiffs, the spouse of Michel Lavoie, Corinna Bonhomme, provided the most detail and particulars of the work done by the plaintiffs and herself to benefit Lucien Trudel and Madeleine Trudel. Ms. Bonhomme particularized the preparation of meals, painting, fixing woodwork in the hallway, applying driveway sealer, assistance with the television remote, washing windows, snow shovelling, gardening, installation of new cupboards in the kitchen, wallpapering, installing linoleum flooring, changing light fixtures and installation of an air conditioner in the kitchen, and running errands for Lucien Trudel when he was ill. When she was asked why she did these things, and what her expectations were, Corrina Bonhomme was clear in her evidence that she did these acts out of love and affection for Madeleine Trudel and Lucien Trudel. As Ms. Bonhomme stated, “I treated them like the parents I didn’t have. I did it out of love and gratitude and I would still be doing it right now if they were still alive.”

[86] In their evidence, Michel Lavoie and Richard Lavoie did not provide the detail that Ms. Bonhomme did concerning the work they performed by Madeleine Trudel and Lucien Trudel but they provided the same response as Ms. Bonhomme as to why they did the work. Both Michel Lavoie and Richard Lavoie were clear and unequivocal in their evidence that they did these acts out of love and affection for their parents with no expectation of compensation. As Michel Lavoie put it in cross-examination, “I never expected payment from them. I did it to help them out. I would do anything for them”. Richard Lavoie indicated in cross-examination that he assisted his parents “out of gratitude. To help out.” When asked directly by counsel for the defendants whether he expected payment, Richard Lavoie answered, “God, no. I didn’t get anything out of it nor did I want anything out of it.”

[87] Considering this evidence by the plaintiffs themselves and the evidence of Corrina Bonhomme it is clear that the third test as set out in Garland V. Consumers Gas Co., 2004 SCC 25, [2004] 1 S.C.R. 629 has not been met by the plaintiffs and that they cannot succeed in a claim for unjust enrichment. The acts of work performed by the plaintiffs to Lucien Trudel and Madeleine Trudel were acts of love; gifts to Lucien and Madeleine without the expectation of compensation. Therefore, there is a juristic reason to deny the recovery for the defendants’ enrichment and the claim advanced by the plaintiffs cannot succeed.

Conclusion

[88] As I indicated to the parties at the conclusion of the evidence, I have found this case both tragic and troubling. It is tragic because family relations have suffered and are likely irreparably harmed because of hard feelings as a result of the provisions in the December 5, 2007 will of Lucien Trudel and the subsequent litigation. There is likely no order that this court can make which will repair those damaged relationships. The case is troubling because justice is about fairness and no matter whatever order is ultimately made by this court it will be unfair. If the court upholds the will of March 30, 1983, then this is unfair to Lucien Trudel’s biological children, Richard Trudel, Paulette Trudel, Denise Champagne and Michel Trudel. If the court upholds the will of December 5, 2007 then this is unfair to the step-children of Lucien Trudel, namely, Michel Lavoie and Richard Lavoie. Perhaps fairness requires that both Lucien Trudel’s biological and step-children receive equal shares of his estate, but that is not provided in either of Mr. Trudel’s wills and it is not up to the court to re-write his will for him.

[89] It is clear on the evidence that Michel Lavoie and Richard Lavoie had a close and loving relationship with Lucien Trudel and that he reciprocated. This I find as a fact based on the evidence that I have heard at the trial. The court and the parties will never know why Lucien Trudel provided as he did in his December 5, 2007 will and why he excluded Michel Lavoie and Richard Lavoie from it. There is nothing in the relationship or the actions of Lucien Trudel that would explain this. There may be many explanations but all explanations are merely speculation. Maybe Lucien Trudel wanted to make something up to his biological children. It was clear that Lucien’s biological children did not much care for Madeleine Trudel and that she did not much care for them. Lucien Trudel’s contact with his biological children was limited because of this and increased substantially after the death of Madeleine Trudel. Maybe Lucien Trudel was trying to make up for these lost years or say he was sorry for this the only way he knew how, namely, to leave his biological children his estate. I do not know whether it was so or not, but it is one possibility. What is clear is that Lucien Trudel did not exclude Michel Lavoie or Richard Lavoie from his will because he didn’t love them or because Michel or Richard had mistreated him in any way.

[90] This court does not have the power to rectify the injustice created by the terms of the last will and testament executed by Lucien Trudel on December 5, 2007. I am satisfied on the totality of the evidence that Lucien Trudel had the mental capacity to make this will and that he was not subject to any undue influence with respect to the disposition of his estate and what he provided for in his last will and testament dated December 5, 2007. I am also satisfied that all the legal formalities for the December 5, 2007 will have been met including the execution of the will as evidenced by the affidavit of execution of Anne Michelle Levert, sworn on December 5, 2007. (Exhibits 4 and 63A).

[91] This court finds and declares that the last will and testament of Lucien Trudel, dated December 5, 2007, is the last will and testament of Lucien Trudel. For the reasons set out in this judgment, the action is dismissed.

[92] If costs are in issue, the parties are to submit to the court written submissions, no longer than five typed pages excluding offers to settle and bills of costs by July 20, 2016 at 4:00 p.m.

Justice E. Gareau

Released: June 27, 2016

CITATION: Lavoie and Trudel, 2016 ONSC 4141

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

RICHARD LAVOIE and MICHEL LAVOIE

• and -

RICHARD TRUDEL and PAULETTE TRUDEL

Reasons for Judgment

Justice E. Gareau

Released: June 27, 2016