Court File and Parties

COURT FILE NO.: 8684/08 DATE: 2016/06/30

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Lorilee Ali Plaintiff

Paul R. Heath, for the Plaintiff

• and -

Mary Fruci and Robert David Willis Defendants

Robert P. Budgell and Lisa M. Thompson, for the Defendant Mary Fruci Kenneth W. Garland, for the Defendant Robert David Willis

HEARD at Welland, Ontario: June 13, 14, 15, 16, 17, 20 & 21, 2016

The Honourable Justice P. R. Sweeny

JUDGMENT

[1] The issue in this case is whether the Last Will and Testament of Florence Louisa Blackburn (“Florence”), dated April 10, 2003, (“the 2003 Will”), and the prior Last Will and Testament of Florence, dated April 17, 2000, (“the 2000 Will”), are invalid. The plaintiff Lorilee Ali (“Lorilee”) is the great-niece of Florence. Mary Fruci (“Mary”) was a neighbour and long-time friend of Florence. The defendant Robert David Willis (“David”) is the great-nephew of Florence.

BACKGROUND

The Parties

Florence

[2] Florence was born September 24, 1907 and died June 22, 2007. She was married twice and twice widowed. She had no children of her own. She never worked outside of the home. She never had a driver’s license. Florence lived at 4687 Eastwood Crescent, Niagara Falls (“the home”), for most of her life. It was the home in which she was born and the home in which she died. Florence had difficulty hearing and wore two hearing aids.

Lorilee

[3] Lorilee is 63 years of age. Lorilee’s mother was Florence’s niece. Lorilee grew up in Midland, Ontario and has lived there her whole life. Her mother and father lived across the street from Florence from 1995 to 1997. In 1997, her mother and father moved back to Midland. In November 1997, Lorilee’s mother died. Lorilee and her family would visit Florence five or six times per year prior to her mother moving down to Niagara Falls. She visited more frequently during the time they lived in Niagara Falls. After her mother died, she saw Florence about two to three times per year. Lorilee is married to Unus Ali (“Unus”). She has four children: Robin Ali, Sean Ali, Arlene Ali, and Lana Ali. Lorilee is a registered nurse, graduating from George Brown College in 1976.

Mary

[4] Mary is 60 years of age. She and her family moved in across from Florence in 1966. Florence was a confidante and mentor to Mary during her teens and throughout her life. Mary left her family home in 1975 when she married Frank Fruci. She moved five minutes away. She continued to have regular contact with Florence throughout her life. Florence was treated as a member of Mary’s family. Florence would spend all holidays with the family and attended the weddings of Mary and her two sisters. When Lorilee’s mother moved in across the street in 1994, Mary and Lorilee’s mother would assist in transporting Florence on various errands and worked together to look after her. After Lorilee’s mother died in 1997, Mary continued her relationship with Florence, speaking to her on a regular, almost daily basis by telephone and also visiting.

[5] Mary Fruci separated from her husband in 2012 and is now in a relationship with David, and they both live in the home.

David

[6] David is 63 years old. He is divorced. He had no children of his own. He is a member of the International Brotherhood of Boilermakers. He is semi-retired. He also has a home business. He is the great-nephew of Florence. He is a cousin of Lorilee. Up until February 2000, he had had no contact with Florence for many years. In 1999, Lorilee made contact with David. David has a past criminal record up to 1984. Since then, he has one conviction for impaired driving in 1993.

THE WILLS

[7] There are three Wills which have been produced in this case. Mary testified that she understood that Florence had left everything to Lorilee’s mother in a prior Will. After Lorilee’s mother’s death, Mary assumed that Florence left her estate to Lorilee.

The 1998 Will and Codicils

[8] Florence’s Will dated February 26, 1998 was prepared by Joseph Nicoletti. It was witnessed by Joseph Nicoletti and Christine Smatana, Mr. Nicoletti’s daughter. Lorilee was the executrix with Lynn O’Brien, Lorilee’s former sister-in-law, as alternate. It left the proceeds from the sale of the home to Lorilee’s children. It had specific bequests of personal property to Lorilee and her children. There were specific $2,000 bequests made to a nephew, step-grandson, stepdaughter, and niece of Florence. The residue went to Lorilee.

[9] There were two codicils made to that Will. The first codicil dated May 27, 1999, modified the specific bequests by deleting the $2,000 bequest to her stepdaughter and adding a $2,000 bequest to Mary. The second codicil, dated September 28, 1999, changed the alternate executrix from Lynn O’Brien to Robin Ali. Both codicils were witnessed by Joseph Nicoletti and Christine Smatana.

The 2000 Will

[10] The Will dated April 17, 2000 appointed Mary as executrix, with David as the alternate. It made specific $2,000 bequests to David, her step-grandson, and her neighbour Geraldine McCrackin. After some specific bequests of personal property to members of Mary’s family, the residue of the estate went to Mary and Frank Fruci. It was witnessed by Joseph Nicoletti and Christine Smatana.

The 2003 Will

[11] The Will dated April 10, 2003 appointed David Willis as executor and Mary Twinn as the alternate. There were three $2,000 bequests: to her step-grandson, Geraldine McCrackin, and Mary Twinn. Certain personal property was transferred to specific individuals, including Mary’s two daughters. The house was transferred to David. The residue went to Mary. This Will was witnessed by Joseph Nicoletti and Mae Nicoletti.

CHRONOLOGY

[12] Between 1997 and 1999 Lorilee visited Florence one to two times per year. Lorilee arranged for Florence to receive one bath per week through the Community Care Access Centre (“CCAC”). During this time, Mary saw Florence regularly and spoke to her daily on the telephone.

The July 1999 Bank Incident

[13] In July 1999, Florence attended at the bank, as she did on a weekly basis. She was driven by Mary as Mary had done on many occasions throughout the years. At that attendance, the bank employees encouraged Florence to take some of the approximately $60,000 in her account and invest in a GIC. Florence invested $25,000 in a GIC. At that time, Mary thought she was made power of attorney for Florence. I note that no power of attorney was produced in the evidence dated July 1999. Mary testified that she may have misunderstood what happened at the bank that day. She may have just been listed as a contact person on the account.

First Meeting – Mary and Lorilee

[14] After that attendance, Mary met with Lorilee. This was the first meeting she had with her. She wanted to work together with Lorilee to care for Florence as she had done with Lorilee’s mother. She explained to her that an investment had been made in a GIC. She likely said that she was made power of attorney at the bank. She thought the meeting went well. Lorilee did not.

Lorilee Suspicious of Mary

[15] After the meeting, Lorilee was concerned that Mary was made power of attorney for Florence. She was suspicious of Mary’s motives. Lorilee attended at the bank with Florence the next day. She says she saw a power of attorney executed by Florence. In August 1999, she had Florence execute a new power of attorney naming Lorilee as the power of attorney.

[16] By July 1999, Lorilee was aware of the contents of the 1998 Will: that she and her family received most of the estate. Lorilee went with Florence to have the codicil executed in September 1999 at the office Joseph Nicoletti, who was Florence’s longtime lawyer.

[17] Lorilee’s concern about the conduct of Mary started in July 1999 and continued throughout the years and even up to the trial. I observe that her concern appeared misplaced. If Mary intended to take advantage of Florence, why would she have told Lorilee about the power of attorney? Lorilee’s concern that Mary tried to take advantage of Florence had a significant impact on her subsequent behaviour.

Lorilee Manages Florence’s Finances

[18] Over the fall of 1999 into early 2000, Lorilee took steps to manage Florence’s finances. Lorilee says she spoke with Florence about investing her money. Lorilee, Unus and Robin Ali (“Robin”) gave evidence that Florence wanted to earn more income and wished Unus to invest her money. In January and February 2000, Lorilee wrote five cheques totalling $32,000 payable to Unus Ali. With the exception of $2,000, which was returned to Florence, this money was used by Unus to engage in day trading. The day trading account was in the name of Unus and Lorilee – not Florence.

Florence’s Capacity

[19] In the fall of 1999, Lorilee expressed concern to CCAC workers and Florence’s family doctor that there may some issue with her capacity. Her concern seems to have arisen out of the investment in the GIC and “the power of attorney” that was given by Florence to Mary in July 1999. As a result of Lorilee’s concerns with respect to financial issues, Lorilee contacted Joanne Clark and others at CCAC. An assessment was arranged with Debi Francis, an occupational therapist. The assessment was conducted in December 1999. Debi Francis found Florence scored 27/30 on the SMMSE test. She did not find Florence was incapable of managing her finances, but she did note short-term memory issues.

[20] Lorilee arranged, through Dr. Ledray, Florence’s family doctor of 15 years, a consultation with Dr. William Molloy, a geriatrician. Florence was examined by Wendy McPherson, a nurse, on January 19, 2000 before her appointment with Dr. Molloy. Lorilee was present for that interview. Wendy McPherson noted that Florence scored 25/30 on the SMMSE test. There were issues with her specifically recalling words. She thought that Florence was impulsive and childlike which were typical of someone with early dementia. She is not a doctor and did not make a diagnosis or a finding of incapacity.

David Becomes Involved

[21] A short time prior to February 11, 2000, Lorilee contacted David, who was living in Hamilton. David had no contact with Florence for many years. Lorilee asked David to come with her and Robin to Niagara Falls on February 11, 2000.

[22] Florence was scheduled to see Dr. Molloy at that time. David agreed to accompany Lorilee. On the trip down, Lorilee discussed concerns about the bank incident and Mary. She also said Florence was getting frail and was having trouble looking after herself. She was confused and forgetful. Lorilee was concerned she could not handle her banking any more.

[23] David met Florence at her house. They discussed his familial relationship to Florence. She seemed to be well aware of the family tree. The interaction was only brief, as Lorilee took Florence to her medical appointment. David stayed with Robin at the house. After they returned from the appointment, David, Lorilee and Robin left.

[24] On March 17, 2000 Lorilee visited Florence again. She took Florence to Dr. Ledray. On March 17, 2000, she wrote letters to Mary and Joseph Nicoletti. In her letter to Mr. Nicoletti, she referred to the conduct of Mary as necessitating medical evaluations of Florence. In her letter to Mary, she wrote that Mary’s involvement and intervention was causing Florence stress, anxiety and confusion.

David’s Overnight Stay with Florence

[25] On March 17 or 18, 2000 Lorilee contacted David again and asked that he stay overnight with Florence. The neighbour, Geraldine McCrackin, who had regularly been staying overnight, had to attend a wedding and Florence would be alone. David agreed and drove from Hamilton to Niagara Falls to stay with Florence overnight. When David arrived, Florence had prepared a full roast beef dinner. It was served on china in the dining room. After dinner he watched television programs with Florence. Florence seemed very sharp. She seemed able to get around her house quite well. In the morning, he woke up to bacon and eggs, coffee, and toast. In David’s view, Florence was very capable and competent. Her house was very neat and clean. Florence expressed to David concerns with respect to Lorilee. She could not find her bankbooks or tax bills and Lorilee had taken them. She was upset that her pharmacy had been changed and she was upset that Lorilee had been taking her to doctors to have her assessed. Lorilee called while David was there on March 19. David did not feel comfortable speaking with her at that time and told her he would call her later.

David Expresses Concerns to Lorilee

[26] On March 21, David called Lorilee. In that conversation, he questioned her about the bank books and bills. Lorilee described it as “a grilling”. David was not satisfied with the answers he received. David was concerned because the picture painted of Florence by Lorilee was not consistent with the picture that he observed. That is, he observed her to be able to look after herself and to be capable. Lorilee became upset and ended the call.

Florence Finds Money Missing

[27] Following that call, David spoke with Florence. He recommended Florence go to the bank to find out the status of her money. Florence did go to the bank, and on March 23 contacted David and advised him that all the money in her bank account was gone. She was only left with $441.65. She was distraught. He immediately drove to Niagara Falls and spoke with her. Mary arrived. They contacted the Niagara Regional Police Service. The police were told of the situation and advised that it was a civil matter.

Unus and Friend visit Florence

[28] On March 26, 2000, Unus and his friend, Dr. Dikran Abrahamian, drove down to Niagara Falls. Unus said he was to clean out the eavestroughs. When they arrived, Frank Fruci was at the house with Florence. As soon as they arrived, Frank started making accusations about money being taken. There was quite a commotion. Unus and Dr. Abrahamian were there for approximately 30 minutes. Frank was making accusations. Unus testified that he tried to explain what happened but Florence did not seem to be comprehending. Florence was getting angry. He was getting angry.

[29] Dr. Abrahamian took the opportunity to speak with Florence. He asked her a series of questions. He was concerned about her ability to comprehend. Dr. Abrahamian suggested Florence should call the Public Guardian and Trustee or her lawyer if she was concerned about her money. Mary arrived. She called the police. Dr. Abrahamian and Unus left.

[30] Unus and Dr. Abrahamian told Lorilee that Florence had told them that her account was completely cleaned out. She made the allegation that Lorilee had stolen her money.

[31] Dr. Abrahamian received certain information from Unus and Lorilee. He was told about the incident at the bank in July. He was told that Florence was upset with Mary’s interference. As a result of that information, he wrote a letter to Joseph Nicoletti dated March 27, 2000. In that letter he suggested that Florence was emotionally traumatized and was delusional. Dr. Abrahamian stated:

This note is written with the expectation of alerting you about her state of mind and a full report will follow in the coming couple of weeks.

The Form 1 Incident

[32] Dr. Abrahamian continued to be concerned about Florence’s situation. On March 29, 2000, he determined it was appropriate to fill out a Form 1. Form 1 is a document which is used to have a person involuntarily taken to a psychiatric facility to be assessed on the basis that they are a threat to themselves or others. Dr. Abrahamian completed the Form 1 based on his observations on March 26, and the information provided to him by Lorilee. The Form 1 was signed on March 30.

[33] On March 30, Lorilee, Unus and Robin drove to Niagara Falls with the Form 1. They went to the police station and gave the Form 1 to the police. They then proceeded to the house. They waited outside for the ambulance and police to arrive. When the police arrived, Cst. Harrison, who had previously been involved in the matter when the “theft” was reported, spoke with Lorilee. The ambulance attendants went into the house. They spoke with Florence. After about 45 minutes, Florence came out and walked across the grass and got into the ambulance. She was taken to the Greater Niagara General Hospital.

[34] Florence had called David earlier on March 30. She told him that Lorilee, Unus and Robin were in their van outside her house and an ambulance had arrived. She was in a panic. She did not know what was going on. David said he was on his way. When David arrived, he was told by the neighbour that Florence had already been taken to the hospital. He went to the hospital.

[35] Florence was seen by the emergency room physician and referred to Dr. Santher, a psychiatrist, for an assessment. Dr. Santher assessed Florence and found her to be capable. Dr. Santher contacted Dr. Abrahamian and advised him that he intended to release her. Dr. Abrahamian expressed his concern about Florence. Dr. Santher believed she was capable.

[36] When David arrived at the hospital, Florence was in the waiting room area of the psychiatric unit. He asked Unus who this so-called “doctor” was (referring to Dr. Abrahamian), and Unus advised him he did not need to tell him. Later, David spoke with Unus outside of the emergency department in the parking lot. He told Unus to return the money within 48 hours or else. He pointed at him. Unus’ evidence is that David grabbed him and punched him in the chest. Criminal charges were laid. Both parties gave evidence in a criminal trial and, ultimately, David pled guilty to assault as a result of the pointing. He received a suspended sentence with 12 months probation.

Florence Makes New Power of Attorney and Wills

[37] March 30, 2000 was the last day Lorilee, Unus or Robin spoke to Florence. The following day, Florence took steps to change her family doctor. Dr. Frendo was a doctor at the medical clinic where Mary worked as the administrator. Florence attended at Joseph Nicoletti’s office and on April 3rd executed a power of attorney in favour of Mary.

[38] On April 6, 2000 Florence had a one-hour appointment with Dr. Frendo. Dr. Frendo made observations and determined that she was capable at that time. Dr. Frendo had two more appointments with Florence. On July 5, 2000, she provided her opinion to Mr. Nicoletti that Florence was mentally competent to care for herself and her finances.

[39] On April 17, 2000 Florence changed her Will. She removed Lorilee as executor and residual beneficiary, removed any bequests to Lorilee’s children, and named Mary as executrix and residual beneficiary under the Will.

Litigation Ensues

[40] Commencing in May of 2000, there was correspondence between Fred Hacker, who was retained by Lorilee, and Joseph Nicoletti with respect to Florence’s capacity. Lorilee asserted that Florence had been found financially incapable. (I note that no such finding was ever made.) It appears the Public Guardian and Trustee was also contacted. Mr. Nicoletti, on behalf of Florence, asserted her capacity. He also requested a return of the $30,000. Lorilee refused to return the $30,000 without a capacity assessment of Florence. Ultimately, a claim was issued. The funds were returned in May of 2001. The lawsuit with respect to the return of the funds was ultimately settled by minutes of settlement dated September 16, 2002. The minutes of settlement were executed by Florence personally and the parties agreed that there was no party under a disability.

The April 2003 Will

[41] In April 2003, Florence executed another Will. This Will left the house to David and the residue to Mary. Florence continued to live in her home and David moved in with her in February 2001. Her care increased. Her mental state deteriorated in 2004. Mary started looking after Florence’s affairs pursuant to the power of attorney granted to her. On June 22, 2007 Florence died - two months and two days short of her 100th birthday. At the time of her death, she was living in the home in which she was born.

The Action

[42] Proceedings were commenced in 2007 with respect to the Wills. On January 30, 2008, Tucker J. made an order consolidating two proceedings and ordering that the plaintiff serve a statement of claim which is the within action. The claim was issued February 29, 2008. The statement of defence of Mary and David was delivered in July 2008. The reply to David’s statement of defence was delivered in August 2008.

ISSUE IN THIS CASE

[43] The issue in this case is whether the 2003 Will and the 2000 Will are invalid by reason of:

(1) lack of testamentary capacity; (2) lack of knowledge and approval of the contents; (3) undue influence.

[44] The parties have agreed that there was compliance with the requirements of due execution pursuant to the Succession Law Reform Act, R.S.O. 1990 c S.26.

LAW

[45] The parties agree on the applicable law. In Vout v. Hay, [1995] 2 S.C.R. 876, Sopinka J. outlined the legal burdens as follows at para. 26:

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.

[46] Sopinka J. went on to say at para. 27:

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 proved in accordance with the civil standard. There is nothing mysterious about the role of suspicious circumstances in this respect. The presumption simply casts an evidentiary burden on those attacking the will. This burden can be satisfied by adducing or pointing to some evidence which, if accepted, would tend to negative knowledge and approval or testamentary capacity. In this event, the legal burden reverts to the propounder.

[47] The burden of proof with respect to fraud and undue influence, however, does not change, and always remains on the party attacking the will.

[48] With respect to suspicious circumstances, Sopinka J. noted at para. 25:

The suspicious circumstances may be raised by (1) circumstances surrounding the preparation of the will, (2) circumstances tending to call into question the capacity of the testator, or (3) circumstances tending to show that the free will of the testator was overborne by acts of coercion or fraud.

[49] “Undue influence”, was described by Cullity J., in Scott v. Cousins, 2001 CarswellOnt 50, paras. 112-13, as follows:

112 It is settled law that undue influence sufficient to invalidate a will extends a considerable distance beyond an exercise of significant influence – or persuasion – on a testator. It is also clear that the possibility of its existence is not excluded by a finding of knowledge and approval.

To be undue influence in the eye of the law there must be – to sum it up in a word – coercion. It must not be a case in which a person has been induced by [strong relationships] to come to a conclusion that he or she will make a will in a particular person’s favour, because if the testator has only been persuaded or induced by considerations which you may condemn, really and truly to intend to give his property to another, though you may disapprove of the act, yet it is strictly legitimate in the sense of its being legal. It is only when the will of the person who becomes a testator is coerced into doing that which he or she does not desire to do, that it is undue influence.

(Wingrove v. Wingrove (1885), 11 P.D. 81 (Eng. Prob. Ct.), at page 82.)

113 The presumptions in favour of undue influence that arise out of certain family relationships and that are applied to various kinds of transactions inter vivos play no part in the law of wills. The persons against whom the presumptions arise in such transactions are typically those that a testator might naturally wish to share in the estate. Such persons are entitled to press what they perceive to be their moral claims. The following comment in Williams and Mortimer, Executors, Administrators and Probate, (17th edition, 1993), at page 184 on the passage quoted above from Wingrove v. Wingrove is, I believe, an accurate statement:

Thus undue influence is not bad influence but coercion. Persuasion and advice do not amount to undue influence so long as the free volition of the testator to accept or reject them is not invaded. Appeals to the affections or ties of kindred, to the sentiment of gratitude for past services, or pity for future destitution or the like may fairly be pressed on the testator. The testator may be led but not driven and his will must be the offspring of his own volition, not the record of someone else’s. There is no undue influence unless the testator if he could speak his wishes would say “this is not my wish but I must do it.”

THE 2003 WILL

[50] The parties agree that if the 2003 Will is valid, then there is no need to examine the 2000 Will. Therefore, I will begin by my analysis with respect to the validity of the 2003 Will.

Are There Suspicious Circumstances?

(I) Are there Suspicious Circumstances Surrounding the Preparation of the Will?

[51] The 2003 Will was prepared by Mr. Nicoletti. He had prepared two prior Wills and two codicils. The Will was signed by the deceased. The contents of the Will mirror Florence’s handwritten notes dated February 3, 2003. There are no suspicious circumstances surrounding the preparation of the Will.

(II) Are there Suspicious Circumstances with Respect to Capacity?

[52] Capacity, in the context of the making of a Will, requires that the testator have a “disposing mind and memory”. This was defined by Rand J. in Leger et al v. Poirier, [1944] S.C.R. 152 at 161 as follows:

A "disposing mind and memory" is one able to comprehend, of its, own initiative and volition, the essential elements of will-making, prop­erty, objects, just claims to consideration, revocation of existing dispositions, and the like; …

[53] Capacity is the area which most concerns Lorilee. She points to the notes of Debi Francis, Wendy McPherson, the report of Dr. Molloy, and the suspicion of Dr. Abrahamian. Dr. Abrahamian did not do a capacity assessment. Lorilee’s main focus is on the “delusion” of Florence that Lorilee had stolen her money. These were all issues around the time of the making of the 2000 Will. I will address those concerns because they occupied much of the trial time.

[54] In Wilson v. Churchmak, [1998] O.J. No. 3733, Sanderson J., at paras. 197-99, addresses the issue of delusion:

197 It is essential to a finding of testamentary capacity that no delusion has influenced the testatrix’s will in disposing of her property or has brought about a disposal that would not have been made absent the delusion. For a delusion to affect testamentary capacity it must so take over a testatrix’s mind that it governs the making of her will. See Taylor Estate v. McCully, supra. She must believe in a fact or facts that no rational person would believe.

198 If it is established that the testatrix was subject to delusions, especially in reference to the character, intention, and motives of someone whom she ought reasonably to have considered as a beneficiary, the onus is on the person propounding the will to satisfy the court that at the time the testator made the will, she was rationally able to consider the person who was the subject of her delusion: see Ouderkirk v. Ouderkirk, supra and Banks v. Goodfellow, supra.

199 To invalidate a will on the basis of delusion the delusions must have influenced the testatrix’s decisions regarding the disposal of her property: see Skinner v. Farquarson, supra.

[55] The question in this case is whether Florence’s assertion that Lorilee and her family had stolen her money was irrational. Lorilee, Unus, and Robin all testified that Florence had asked that the money be invested and that she was informed of the investment. The evidence was vague and nonspecific with respect to these conversations. Lorilee’s evidence was that Florence wanted to make more money so she could look after herself if she needed to go into a nursing home. Unus said that Florence told him to ask Lorilee to give him the money and told him that, “you do what you think is fair and best for me and for us, because I didn’t have an education but I want your children to have an education.” This comment by Unus gives some insight into an expectation of Lorilee and Unus that the funds would ultimately be for their benefit.

[56] Florence had been managing her own affairs with the assistance of Mary and others for years. She had a regular habit of attending at the bank. After Lorilee had taken over, her former routine had been changed. Lorilee had the bank accounts made joint. Lorilee had taken over all of Florence’s finances. She no longer had access to her bank records. Lorilee was doing the banking and updating the records in Midland. Lorilee had arranged for her to be assessed by Dr. Molloy. Lorilee had changed her pharmacy. Mary’s contact with Florence had significantly decreased after Lorilee’s involvement. The contact with Mary had been a constant in her life for years while Lorilee had only been recently involved. She was also only involved on an intermittent basis given that she lived in Midland. Florence had questions with respect to a number of issues and raised those questions with David on March 18, 2000. When David questioned Lorilee about Florence’s concerns, he did not get satisfactory answers. He communicated that fact to Florence.

[57] Florence then attended at the bank and saw there was only $441.65 in her bank account. The absence of money in her bank account, without a clear memory of authorizing any investment, leads to the rational conclusion that the money was taken. She had no recollection of where that money had gone. Lorilee had full control of her finances, so it was reasonable that she would believe that Lorilee took the money. Given Florence’s diagnosed mild memory loss, it is most likely she had forgotten any discussions about investments. Her lack of memory does not lead to the conclusion that she was did not have the capacity to make a Will.

[58] When she contacted the police, she was told it was a civil matter, and so it was. Lorilee had a power of attorney. She had access to the joint bank account and Lorilee had a prima facie right to access the funds as a joint account holder. The issue needed to be sorted out between Lorilee and Florence.

[59] After the accusations were made by David on the phone, Lorilee and Unus made matters worse. On March 26, 2000, Unus and Dr. Abrahamian arrived at the house and the allegations were repeated by Frank. Dr. Abrahamian told Florence that she should speak to the Public Guardian and Trustee or her lawyer. It is not clear what explanation Unus gave to Frank. However, Frank said he would get a Toronto lawyer and sue him for the return of the money. Unus says he tried to explain to Florence about the money but she was not comprehending. He was getting angry. She was getting angry. There does not appear to have been a rational explanation provided at that time. There was never an explanation provided directly from Lorilee to Florence reminding her of the investment. The March 30 Form 1 incident did not include any meaningful communication between Florence and Lorilee.

[60] Even after the events of March 30, 2000, the money was not immediately returned. Florence ultimately commenced an action and received the funds in the context of that action. The action was settled September 16, 2002. Even if Florence had been operating under a delusion, that delusion was no longer operative in 2002. Lorilee had stated her position in her Statement of Defence. The matter had moved forward. In the circumstances, I find no suspicious circumstances with respect to capacity surrounding the 2003 Will.

(III) Undue Influence

[61] There are no suspicious circumstances with respect to undue influence. Florence had money taken from her bank account. She did not recall the circumstances. She communicated that information to other people, including David and Mary. The other people pursued the issue on Florence’s behalf. She prepared handwritten notes which outlined her proposed distribution under the 2003 Will. She provided David with an explanation for the change in the Will, that is, that her father wanted the house to stay in the family. There is no evidence to support suspicious circumstances with respect to undue influence and, in fact, no evidence of undue influence at all.

Knowledge and Approval of Contents

[62] I have found no suspicious circumstances, therefore, the propounder of the Will need only show that the testator knew and approved of the contents of the Will. Unfortunately, Mr. Nicoletti died in 2009. We do not have his evidence surrounding the making of the 2003 Will. The evidence of Mae Nicoletti and of Christine Smatana was that Mr. Nicoletti’s practice was to meet with the person and take Will instructions. He would then give his staff the instructions to prepare the Will. The testator would attend and sign. He would give the Will to the testator to read over just prior to meeting with them and then he would meet with them. He would review the Will and answer any questions. This 2003 Will was signed and witnessed by both Mr. Nicoletti and Mae Nicoletti. There is no issue that it is Florence’s signature. In the circumstances, I am satisfied that the propounder has established that the testatrix knew and understood the contents of the Will.

Capacity

[63] With respect to the issue of capacity, there is evidence that Mr. Nicoletti had a question about Florence’s capacity back in 2000 based on the letters from Lorilee and her lawyer. After Dr. Frendo had seen Florence on three occasions, she wrote the letter of July 5, 2000 indicating that she believed that Florence was capable. In addition to the evidence of Dr. Frendo, there is the evidence of Mary and David that Florence was capable. On September 19, 2002, Florence executed the minutes of settlement to settle the action. Seven months later she executed the 2003 Will. The evidence of Dr. Frendo, supported by her clinical notes, established that she had no real concerns about the capacity of Florence until sometime in the latter part of 2004. Therefore, I am satisfied that Florence had the requisite capacity to make the 2003 Will.

[64] I observe that Mary had been associated with Florence for many years. Florence had spent holidays with Mary’s family. Mary spoke with her on an almost daily basis. It is understandable that Florence would want to include her in her Will. The inclusion of David in the 2003 Will was also understandable, given that David moved in in February 2001 and so had been living with Florence for more than two years prior to the date the Will was executed. David provided assistance to her. He looked after her, he drove her around, and he was a blood relative.

[65] In the circumstances, I find the 2003 Will to be valid and it will be declared to be the Last Will and Testament of Florence Louisa Blackburn.

COSTS

[66] Costs submissions with respect to this matter shall be made in writing addressed to me at my chambers in Welland. The costs submissions of the defendants, limited to 10 pages, together with Bills of Costs and any offers to settle, shall be delivered within 10 days of the release of this decision. The plaintiff shall have 10 days to respond, with a Bill of Costs. The defendants will have a further right of reply within 5 days.

Sweeny J.

Released: June 30, 2016