Court File and Parties

COURT FILE NO.: 30082/14 DATE: 2016/07/18 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

JON JESSIE WILLIAM DRISCOLL Applicant – and – CAROLINE DRISCOLL, DEANNA FLECK and JEAN GILBERT Objectors/Respondents

COUNSEL: Christopher Moore, for the Applicant Richard Nishimura and Douglas Menzies, for the Objectors/Respondents

HEARD: March 8 – 11, 14 - 15, 2016

REASONS FOR JUDGMENT

Mr. Justice Douglas Rutherford

Introduction

[1] Shirley Driscoll (Mrs. Driscoll) died at home near Ottawa on September 20, 2014, two months short of her 73rd birthday. She left a Will dated January 22, 1996. The Will named her fourth child and only son, Jon Jesse William Driscoll (the applicant), as Estate Trustee and also the sole beneficiary. He applied for a Certificate of Appointment of Estate Trustee with a Will on October 7, 2014.

[2] There were also seven daughters of the union of Mrs. Driscoll and her husband Ken Driscoll. He predeceased her, leaving his estate to her. Two of their daughters predeceased their mother. Four others filed a Notice of Objection to the Application. One of the daughters, Kathy Farmer, subsequently withdrew her Objection and gave evidence on behalf of the applicant, leaving three daughters, Caroline Driscoll, Deanna Fleck and Jean Gilbert objecting to the application. Notice of the litigation was given to the children of the two deceased sisters in view of the potential for its outcome to affect their interests, and while none intervened as parties, three of the grandchildren gave evidence as did the spouse of one.

[3] A trial before me proceeded pursuant to directions contained in the Order of Hackland J. dated June 25, 2015 which was sought by the Objectors and agreed to by the Applicant. It provided for a summary trial of a hybrid fashion in which each side filed documents, and affidavits from witnesses, and provided for time limited examinations-in-chief and cross-examinations. At trial, the evidence of the Objectors was led first. The issues to be tried were specified as:

1. Whether Shirley Driscoll had testamentary capacity at the time she executed the Will on January 22, 1996.
2. Whether Shirley Driscoll knew and approved of the contents of the Will she executed on January 22, 1996.
3. Whether Shirley Driscoll was subject to undue influence by the Applicant on January 22, 1996 when the Will was executed; and
4. Costs of the litigation, including a costs disposition relating to a summary judgment motion by the Applicant prior to the trial.

The Evidence

[4] The considerable uncontested factual circumstances in which the issues for trial unfold are as follows.

i. Ken and Shirley Driscoll lived and raised their children in a modest story-and-a-half, two bedroom house on Fourth Line, North Gower, south of Ottawa. They were of modest means. Ken worked at a variety of things, when work was available. With the help of the family, he cut and peddled firewood to residential consumers, and at times, received welfare to make ends meet. Shirley was a “stay-at-home” mother” who managed the home, grew flowers and vegetables, cooked, canned, knitted, crocheted, and did the kind of things a person of her generation learned to do in such circumstances. She had only grade 8 education.

ii. One might understand that family life in the two bedroom Driscoll household with eight children involved some turbulence. There is evidence of involvement of the Children’s Aid Society, the local police, and of the early or periodic departure of one or other of the children at various stages. By 1993, the daughters were all gone from the home and were involved in married or other long-term relationships, careers, and were raising children of their own.

iii. Ken Driscoll’s brother, Ivan, had died in 1986 and left significant wealth to Ken, on which it appears that he and Shirley lived the rest of their lives. When Ken died in 1992, he left everything to Shirley. When she died in September 2014, her estate included bank account and investment assets, and four pieces of real estate, including the rural North Gower Fourth Line house. The application for a Certificate appointing Jon Driscoll as Estate Trustee placed the value of the assets of the estate at $715,035, although after the trial a motion was filed to amend and reduce that figure. I shall return to that motion at the conclusion of these reasons for judgment.

iv. In September 1995, Jon, then 25 years old, was the only child still living in the Fourth Line home with his mother. Jon had grade 10 education and worked pretty steadily as a heavy equipment operator. On September 12, 1995, Jon and his mother had driven to Perth in a pick-up truck John had recently acquired but not insured. While in Perth they had consumed beer in a hotel bar and on the way home, the truck went off the road and turned over. Jon received only a minor cut on one shoulder requiring a few stitches. Shirley Driscoll, however, suffered more severe injuries, including broken ribs, lacerations, a partially collapsed lung and a head injury. Both were taken to the Ottawa Hospital by air ambulance. Shirley Driscoll was comatose upon admission. Neurosurgeon Charles Agbi’s affidavit states at paragraphs 5 – 17;

One of the injuries appears to be a closed head injury. My review of the records suggests that the head injury was not of principal concern and it was the other injuries suffered in the car accident that had to be immediately treated.

In fact it appeared that the closed head injury was not serious and did not require any surgery or specific treatment.

Concerns arose, however, as a month after the accident the patient still appeared to be confused and disoriented and there did not appear to be any improvement in her condition.

On October 26, 1995 I requisitioned a Neuropsychological Assessment of the patient in order to determine capacity as there was some indication that a Power of Attorney might be required.

I have reviewed the report of the Neuropsychological Assessment performed on October 26, 1995 by Dr. Francine Sarazin. It appears that Dr. Sarazin was unable to complete the consultation and report as the patient was uncooperative. It appears that as a result Dr. Sarazin had no choice but to indicate a default position of lack of capacity as no meaningful assessment could take place.

At my request a further CT Scan was conducted on the 26th of October, 1995. This was performed due to my concern that the patient was not showing any signs of improvement. This was the CT Scan that the radiologist examined and identified the existence of a brain tumor which appeared to explain the patient’s condition at the time.

As a result, surgery was scheduled for November 7, 1995 for the purposes of removing the tumor in question. This surgery was performed successfully and the tumor was determined to be benign.

Subsequent to the surgery the patient appeared to rapidly improve, however, within a couple of days further problems were noted and it was subsequently determined that further surgery would be required in order to insert a shunt. This surgery took place on November 11, 1995 and was successful.

The hospital records seem to indicate that subsequent to the shunt being inserted once again the patient continued to improve significantly. This improvement also assists in the determination that it was the tumor and not the closed head injury that had been contributing to the patient’s confusion and cognitive deficits.

A further request was made by me for Neuropsychological Assessment of the patient’s capacity resulting in a report being done once again by Dr. Sarazin as a result of interviewing the patient on November 25th and 26th, 1995. It appears from reading this report that the patient was significantly more co-operative and an assessment was able to be completed by Dr. Sarazin. For all intents and purposes the previous report was of no use whatsoever and reliance can only be placed on the report that was done in November of 1995. Clearly Dr. Sarazin came to the conclusion that the patient’s capacity was such that she was capable of granting a Power of Attorney.

There is no doubt that I would have received a copy of this report at or about the time it was prepared and it would have satisfied me that the patient’s capacity and cognitive abilities had now improved.

As is usual with respect to such surgery it is necessary for me to see the patient subsequent thereto on a regular basis. It appears that I saw Mrs. Driscoll once again on January 6, 1996, at which point my observations were that she was steadily improving and there did not appear to be any further complications. There were still some difficulties with her balance. Had I noted any concerns on my part with respect to her capacity or cognitive abilities I would have requested a further neuropsychological report. I understand that no further request was made by me subsequent to November of 1995 for a further neuropsychological report as none appeared to be necessary.

Following up six months later in July of 1996 1 once again saw Mrs. Driscoll. My report, which is consistent with my recollection, indicates that Mrs. Driscoll had improved significantly and did not appear to be suffering any ill-effects from the surgery nor indeed from the previous closed head injury. Once again, had I noted or been concerned about any cognitive or capacity issues I would have requisitioned a further capacity assessment which was not done.

At paragraph 19 of his affidavit, Dr. Agbi stated:

…I did not observe any behaviour on her part in January of 1996 that would cause me any concern with respect to her capacity or cognitive abilities to instruct and execute a Will.

v. Shortly after that last assessment in November 1996, Shirley Driscoll insisted on being discharged from hospital and returned home. On December 22, 1995 she went to see her long-time solicitor, Mr. Barry Fortey, at his satellite office in the Town of Richmond, a little south-west of Ottawa, and executed a General Power of Attorney naming her son Jon as her Attorney. It is unclear how Shirley got to Mr. Fortey’s office that day. None of the children say they were with her. The document, however, appears to initially have been witnessed by someone who signed Jon Driscoll. That signature, which Jon concedes looks like his, was scratched out and another one placed above it by P. Geoffrion, another of Mr. Fortey’s clients. Shirley Driscoll also gave Mr. Fortey instructions to draw a will for her at the same meeting at which she signed the Power of Attorney.

vi. One month later, on January 22, 1996, Shirley Driscoll again attended at Mr. Fortey’s Richmond office and executed the Will which is in issue in this trial. All the children deny being there when the will was signed or having any knowledge of its execution. Mr. Fortey’s Richmond office had no staff at it and he had instructed Shirley to bring a witness with her, who was not a beneficiary. Wayne Watters, Shirley’s brother-in-law, witnessed the will-signing along with Mr. Fortey, and must have taken her to Mr. Fortey’s office. He too is now deceased.

vii. Peripheral to the issues of capacity and undue influence as at January 22, 1996, Shirley Driscoll subsequently commenced an action against her own insurer for damages and benefits related to the September 12, 1995 accident. The insurer in turn claimed over against Jon Driscoll for indemnification. Shirley ultimately gave instructions that the action be settled with a modest payment to her in full settlement including the dismissal of the insurer’s claim against Jon.

[5] It is against this background that the evidence of some 20 witnesses is arrayed generally on two sides, one supporting the capacity of Shirley Driscoll to make a valid will on January 22, 1996, and the other negating it. The evidence of the family members (and I include Herbert Clarke, who although not family, lived as a close friend of Shirley Driscoll in her home for close to 20 years) paints two quite contradictory pictures. I do not intend to go into every witness’ evidence in any detail, but have considered it all and will mention highlights of what I consider to be the more pertinent portions relating to the issues.

[6] On the one hand, the evidence of the Objectors and of those supporting them portrays Jon as an abusive, uncaring son who would have preferred his mother to die as a result of her injuries. He used the family home as a party-place, leaving his mother to exist in squalor and disability. He called her awful names and physically abused her on some occasions. It is suggested that Shirley feared him and must have been pressured by him to make the Will in his exclusive favour. It is part of this portrayal that Shirley was also pressured by Jon to settle her lawsuit against her insurers for a paltry amount and have the insurer’s cross-claim against him dismissed. The objectors say that there was never any assumption generally known in the family that the estate would all go to Jon. Quite the contrary, it was generally held that all the children would be treated equally, and that even if Jon did inherit the estate, it would be on the assumption that he would share the assets with all. It is central to this picture that while prior to the accident Shirley was a vigorous, strong, capable woman who could not be pushed around, following her discharge from hospital and return home in late 1995, she was a shadow of her former self, so physically and cognitively impaired, that she required help with almost everything. She had continuous tremors, serious mobility impairment and her memory deficit and unawareness of her situation made her incapable and vulnerable. She thought she was without means and was unable to do most of her former activities, including driving her car.

[7] The picture painted by Jon and supported by daughters Brenda Rus and Kathy Farmer and by long-time tenant in the household, Herbert Clarke, is in sharp contrast. They portray Shirley as recovering quickly and well from her injuries and surgeries and with the exception of minor and temporary problems with balance, having resumed life with vigour and capability almost as before the accident. Indeed Jon recalled that the first thing his mother did upon returning to the house was to go about watering all her favourite flowering plants in the home. This picture includes Shirley being able to manage her affairs, drive her car, do her banking, and carry on quite normally with little in the way of physical or cognitive impairment. This picture also includes a general awareness in the family that in due course, Jon would inherit the estate, since he was the one who his mother would rely upon and who would probably look after her while she lived. It was understood that Shirley’s long-held view was that the daughters would and were to make their way in life through marriage to men who would support them and their offspring. Indeed, Jon states in his affidavit that Shirley Driscoll’s mother, Kathleen Scharfe, who had 17 children, left her entire estate to her youngest son just three years previously. Mr. Barry Fortey, the Driscoll’s solicitor over many years and the lawyer who prepared her Will, noted that passage of the family property to the males only was done in the generation before Shirley on both sides of her family.

[8] These two contrasting portraits of Shirley Driscoll at and around the time she executed the Will in issue cannot both be accurate. It is clear that reliance can be placed on the evidence of the family members (including Herbert Clarke) only at risk of being misled. I have had to look for corroboration of the evidence of individual family members and place most attention on the evidence of health care and other professionals with less apparent bias in determining the central issues.

[9] In particular, I weigh the evidence of Jon Driscoll with care and caution. His interest in the outcome of the case is strongest and some of his evidence was unconvincing. It begins with how the accident came about and his story of some unidentified stranger picked up in a Perth bar being put behind the wheel of his truck. That improbable scenario is not at the core of this litigation but it does colour his evidence. As he testified, I noted what exquisite detail he could recall of things he wanted to recall, but how so many times he resorted to saying “This was twenty years ago. I can’t be expected to remember…” Having denied knowing anything about the Power of Attorney signed on December 22, 1995, he seemed flustered and of course could not explain the appearance of what he concedes appears to be his crossed-out signature on it as a witness.

[10] Herbert Clarke’s evidence strongly supports Jon’s being a dutiful, caring and supportive son who never partied in the home and certainly never abused his mother as the Objectors testified he did. Clarke also portrays Shirley being virtually unimpaired apart from a little balance problem and quickly carrying on after returning home from the hospital. “She could do anything” he said, including drive, with no problem or handicap. However, in a taped portion of a telephone conversation he had with Carolyn Driscoll on November 24, 2014, Clarke seems to acknowledge very clearly that Jon had been very abusive to his mother, calling her vile names and being far from the dutiful, caring son. Mr. Clarke dismissed that telephone conversation on the basis of his being very drunk. It appears he was in the Ottawa General Hospital at the time. I cannot place much reliance on his evidence, alone, as to the domestic situation in the Fourth Line home.

[11] On the other side of the case, however, reliance on the core of the Objectors’ evidence is seriously undermined by the evidence of Kathy Farmer, second eldest of the surviving children. She said that when the Will came to light after their mother’s death, she and the Objector sisters exchanged a number of communications about it. She said that there was initial discussion about whether their mother’s signature on the will was genuine. The four sisters did a little internet research relating to the contesting of the validity of wills and considered contesting their mother’s Will. She produced copies of email communications among them and with Jon. One, from Jon to them on October 1, 2014 before the assets had been fully identified or the value of the estate had been determined, read:

I’ve been hearing a lot from everyone about Moms will so I am going to let you all know what is going on to the best of my ability. If there is enough money to allow for this, I am planning on gifting $40,000.00 to each of you and $25 000.00 for Sharon’s kids to split and $25 000.00 for Lorraine’s kids to split. I’m sure you will all find this more than generous as Mom wanted everything to go to me, and I have spent the last 30 years taking care of her and maintaining her properties. With this offer, you will also be welcome to go back home and help yourself to anything you want from the house.

[12] After sharing some materials about contesting wills, the four sisters exchanged a number of emails on October 9, 2014, including these.

From Deanna Fleck:

After reading all of that, I have heard similar rumblings from others that it’s very hard to overturn. It was hard when mom did it years ago, and laws have changed making it harder. Do you think with time, running around and financial cost it’s worth it? When we ask the question ‘did she always make it clear she was leaving everything to Jon.’ The answer is yes. Do we have proof of her lack of mental state? Well, somehow she got Dr. Rabb to say she was fine. I am concerned on this one. Do you guys want to consider asking for maybe 50k and see what happens? Just a thought

Kathy Farmer weighed in:

I will say this…this is the most humiliating thing she could have ever done to any of us…again we will have to lie and make shit up I don’t know of anyone in my circle of friends that would understand a mother leaving 100% of her estate to her son and not 1 red dime to any of her daughters….WOW!

Deanna Fleck suggested:

Personally have a strong gut feel on this. I know for a fact every will will say jon. She’s been clear she liked the boy the most. Regardless of where or what’s gone on it’s the past and she let it happen because she wanted him in her life. Possibly as a husband. Lol. At any rate. I think we realistically ask for 50-60 and then drop it.

Jean Gilbert agreed, and observed:

You know I think that would probably be best in my opinion to ask for 50-60K ea. It is very costly, and a long process from what I’ve read..he does not have costs with us contesting, it would be us paying..doesn’t come out of the estate, unless things are proven.. He has probate to pay on the properties too which will be allot. He cannot apply for this (deed transfer etc) until he pays the tax. Either from her account or line of credit etc..At the end of the day with costs, we would probably end up getting that amount or less. I assume he will have to sell properties to pay us off and pay for probate.. We can still meet with the lawyer if you think there’s a strong case. As gudar said though..the doctor did claim she was competent for everyday business. If she didn’t want Jon to have everything she would have changed her will over the last 19yrs. Any will you find I’m sure will be the same..

She added;

Maybe he won’t give anything now..:/ if we all agree do not text or email him..it’s a phone call. Then we revoke the court doc. And drop it.

Deanna Fleck replied:

Yup, that’s the other risk. So let’s see what the others say and I will deal with mr jon. The Other thing is I don’t really have time for this fight or the gut feeling that we would win.

[13] On October 19, 2014, Kathy Farmer then sent an email to all her sisters explaining why she had decided to no longer pursue the Objection to the Will. In her affidavit, she explains her decision in detail. Of her saying in her email above “we will have to lie and make shit up” she says:

[T]he response was not necessarily what I was convinced we should do at the time and to a large extent that response was based upon more of an emotional reaction to the entire situation and was made due to the fact that we did not really know what the estate was worth. We all knew that my mother fully intended to leave her estate to her only son Jon and we were really just taking advantage of Jon’s offer.

Her affidavit also includes the following statements:

The issues that were being discussed amongst my sisters were the issues of undue influence, incompetence and more importantly a suggestion that the Will itself was not properly signed by my mother. We had to search the web for reasons to contest the Will because we didn’t know what we should say to get a lawyer to take the case.

…I had an opportunity to stand back and take a breath and examine what was taking place. It became obvious to me that emotions were getting the better part of all of us and that I could not be part of this process as I knew as did all of my sisters that my mother’s intentions at all times was to leave her estate to my brother, Jon. Also once I got a look at the Will it was obvious to me that it had been properly signed by my mother. It was at that point in the middle of October of 2014 that I decided that I was not prepared to support or participate in this process any longer.

I can also advise that from the outset my sister Brenda had no interest in participating in my legal process and always believed that the Will was valid, that my mother was competent and that there had been no undue influence.

[14] In her testimony in court, Kathy Farmer reiterated that the daughters all knew their mother was going to leave everything to Jon. She questioned how they were going to contest the Will

[B]ecause we all knew how Mom felt about Jon, always wanted to leave everything to Jon…Shortly after that – after looking at all this, I sent out an email saying I removed myself from this…We all knew. The boy inherits. That was her position, her mind-set.

[15] It was clinical neuropsychologist Francine Sarazin who, at the instance of Dr. Agbi, attempted to conduct a neuropsychological assessment of Shirley Driscoll on October 26, 1995 and did conduct such an assessment a month later on November 27 and 28, 1995. On that first attempt, she reported that a formal assessment of Shirley Driscoll’s cognitive competency was not feasible on account of the patient’s lack of co-operation.

[16] Her report of the November assessment was appended to her affidavit (exhibit 8). Based on her report, Dr. Sarazin noted that

…Mrs. Driscoll presented as an alert and oriented woman and although resistant to the examination she was nonetheless significantly more co-operative than in the previous assessment…My report does not disclose that I made inquiries of Mrs. Driscoll with respect to her family members or her financial circumstances which would be typical of a Capacity Assessment related to Powers of Attorney and/or Wills. I do not recall whether I did or did not make those inquiries as my report does not disclose such. However, it is clear that I determined that Mrs. Driscoll was capable of assigning Power of Attorney. Accordingly, I must have concluded that she would have understood the nature and import of assigning to someone the power over all of her property and that she would have comprehended the implications of doing so.

[17] On cross-examination however, Dr. Sarazin indicated that she was probably thinking more in terms of Power of Attorney for personal care than for property. She noted on cross-examination that:

Mrs. Driscoll’s clinical presentation was also remarkable by her lack of insight, anosognosia (denial of deficits), perseverative tendencies, flat affect, and somewhat inappropriate behavior, marked by poor compliance motivation, argumentativeness.

Dr. Sarazin concluded that:

In light of the magnitude of the deficits encountered, Mrs. Driscoll will require supervision upon discharge. She continues to be incompetent with respect to financial management. She is however likely competent to assign power of attorney.

[18] Dr. Sarazin attributed the neurological deficits to the acute effects of her tumour surgery and associated complications of hydrocephalus and the further surgical remediation, rather than to the trauma of the head injury in mid-September.

[19] The most comprehensive review of Mrs. Driscoll’s neuropsychological condition leading up to the date of her making the Will in issue was authored by Dr. Lynn O. Lighfoot, a clinical psychologist and Designated Capacity Assessor under the Ontario Substitute Decisions Act, 1992. She was retained by the Objectors to review the entire medical record and provide her professional opinion whether Mrs. Driscoll had testamentary capacity when she executed her Will on January 22, 1996. Her review included the reports of Dr. Agbi and of Dr. Sarazin to which I have already referred, and also to neurological assessment reports by Dr. Clare Stoddart some 9 months post-surgery and by Dr. Christina Fiedorowicz, some 22 months post-surgery. Both of these latter specialists noted significant cognitive deficits in Mrs. Driscoll’s physical and intellectual functioning, her verbal and visual memory, rate of psychomotor response, concentration, indeed across a wide variety of cognitive functioning. Both noted the anosognosia remarked upon by Dr. Sarazin, that is, Mrs. Driscoll’s own inability to appreciate or be aware of her neurological deficits.

[20] In light of her review of the medical file, Dr. Lightfoot turned to the question of testamentary capacity and reviewed the evidence against the following six criteria.

1. Understanding of the nature of a Will and its effect. She said that the neuropsychological test results confirm severe, pervasive and persistent neuro-psychological deficits including compromised higher level executive functioning. These abilities include the capacity to engage in abstract thinking, reasoning and problem solving. The test results also indicate that she suffered ongoing severe memory deficits which in turn would have an impact on her ability to understand information related to the nature and extent of her property.

2. Knowledge of the nature and extent of her property. Again, she said that the severe memory deficits would have an impact on Mrs. Driscoll’s ability to understand information related to the nature and extent of her property.

3. Awareness of which persons have a claim to her property. Noting the ongoing strength of her relationships with her daughters, Dr. Lightfoot concludes that there can be no rationale for having made no provision in her will for anyone other than Jon. From this conclusion, Dr. Lightfoot further concludes that Mrs. Driscoll does not appear to have appreciation that her daughters would have any claim on her property.

4. Ability to form a judgment on the strength of these claims. Having formed the views expressed under the third criteria, Dr. Lightfoot concludes here that Mrs. Driscoll’s impaired executive functioning and lack of awareness of her cognitive deficits rendered it unlikely that she gave any consideration to the potential claims of her daughters on her estate at the time she gave instructions for and executed her Will.

5. Ability to express her wishes clearly and without ambiguity. Limited verbal capacity, cognitive deficits, symptoms of depression made it highly unlikely, in Dr. Lightfoot’s opinion, that Mrs. Driscoll was able to articulate her thoughts clearly and without ambiguity at the time she prepared her Will.

6. Voluntariness and absence of undue influence. Although having no information related to whether she was being unduly influenced by anyone, Dr. Lightfoot noted that Mrs. Driscoll’s compromised mental status and depressed mood would certainly render her very vulnerable to such influence.

[21] Based on her considerations under these six criteria, Dr. Lightfoot concluded that on a balance of probabilities, Mrs. Driscoll “…would at the subject time have failed the legal test for testamentary capacity, and was not capable of making or modifying her Will on January 22, 1996.

[22] Mrs. Driscoll’s lawyer was J. Barry Fortey. Called to the bar in 1973, he was a general practitioner but carried on mainly a solicitor’s practice in and around Ottawa. He prepared over 2000 Wills and was unable to put a number on the powers of attorney he had drawn. He retired and surrendered his license to practice in 2010.

[23] Mr. Fortey acted as solicitor for Ken and Shirley Driscoll over a long period. He described her as his main instructing client in protracted proceedings over the estate of Cornelius Driscoll, Ken Driscoll’s father. Although he did not know a great deal about the Driscoll children, he knew there was a son and at least five daughters. He was aware that they were not at all wealthy and that money was their big issue. He knew that Ken Driscoll inherited an amount of money, less than $700,000, he thought, from his brother Ivan. He knew that when Ken Driscoll died in 1992, he left everything to Shirley. He acted for Shirley on the purchase of three additional properties. These additional three properties, are,

1. A cottage with frontage on Bass Lake. Purchased in 1984 for $28,000, the cottage was destroyed by fire and the lot is now considered too low and swampy for building on. In September 2015 its appraised market value was $2,000.

2. A 96 acre parcel of vacant, unserviced, gently rolling land on Dwyer Hill Road between Ottawa and Smith Falls. Purchased in 1987 for $48,000, it was appraised in September 2015 at $995 per acre for a total of $92,000.

3. A .81 acre property in Burritts Rapids south of Ottawa on which sits a dilapidated, two-story, turn-of-the-century, clap-board house without bathroom. The lot appears un-tended and derelict. Bought for $38,000 in 1987, the property was appraised at $19,000 in September 2015.

[24] The rural family home on Fourth Line near North Gower where all the children were raised is a wooden, 1½ story, two bedroom house. Its appraised value in September 2015 was $66,000.

[25] Mr. Fortey described Mrs. Driscoll as “a unique individual – forceful and determined.” In his affidavit he said that “…although Shirley Driscoll was not highly educated, she was a street smart person and very independent. Simply put in my opinion no one could tell Shirley Driscoll what to do.” While he characterized her as having below average intellectual capacity, he was of the view that she was essentially of the same capacity before as after the hospitalization and brain surgery.

[26] He had very little independent recollection, beyond what the documents on file reflected, of either the session on December 22, 1995 during which she signed a Power of Attorney for Personal Care and Property and instructed the Will in issue to be prepared, or of the January 22, 1996 executing of the Will itself. He said he had no doubt she was aware of the property she had and they specifically discussed and he sketched a possible severance of part of the Dwyer Hill property she was considering. He described his general practice in reviewing Powers of Attorney and Wills with clients and was of the view that Shirley Driscoll knew what she was signing on both occasions. He recalled that she downplayed the seriousness of her accident and her injuries or disabilities and none were apparent to him. He did not recall noting anything unusual about the appearance of her or her clothing, including any signs of her cranial surgery such as the shaved area of her head. He was unaware of any particular medications she might have been taking.

[27] Mr. Fortey noted that it was Shirley Driscoll who arranged both the Power of Attorney meeting and the subsequent Will-signing appointment by telephone with him. He was unable to explain how it was that Jon’s signature, crossed out, appeared on the witness line in the Power of Attorney. He said he would never allow the “attorney” to be the witness, or even to be present upon execution of a Power of Attorney, and noted that the actual witness signature was that of another client, one P. Geoffrion, who must have been at his office that morning. Mr. Fortey speculated that perhaps Jon had brought his mother to the office and was with her while she was reviewing reviewing the draft document in the waiting room.

[28] Mr. Fortey recalled no discussion with Mrs. Driscoll as to why she was not leaving anything to her daughters or grandchildren, but noted that she had experience with both her father’s and her father-in-law’s Wills, both of which had “…followed the somewhat rural practice of primogeniture.”

[29] The Will of Shirley Driscoll remained in the office files of Mr. Fortey until his retirement and was passed to Mr. Mark Arbique who assumed Mr. Fortey’s practice upon his retirement.

Analysis

Testamentary Capacity

[30] The Canadian law in relation to one’s capacity to make a Will finds its roots in the English case of Banks v Goodfellow (1869-70), L.R. 5 Q.B. 549, a case frequently cited in Canadian authorities over the years. My approach to the issues and an analysis of the applicable evidence in this case is taken from what I consider a most helpful and sound exposition by my colleague Justice Jennifer Blishen in Royal Trust Corp. of Canada v Saunders, where she wrote at paras 75-83,

75 The propounders of the will have the legal burden of proof with respect to testamentary capacity. In attempting to meet the burden of proof as to the deceased's testamentary capacity, the propounders of the will, in this case Royal Trust, are aided by a rebuttable presumption. As stated by the Supreme Court of Canada in Vout v. Hay, [1995] S.C.J. No. 58 (S.C.C.):

[26] ... 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.

76 The presumption casts an evidentiary burden on those attacking the will, Catherine Campbell and Thomas Saunders, which can be satisfied by introducing evidence of "suspicious circumstances", that is some evidence which, if accepted, would tend to negative knowledge and approval or testamentary capacity. The legal burden would then revert to the propounder. See Vout v. Hay, supra at p. 8, para. 27. Catherine Campbell and Thomas Saunders must adduce sufficient evidence to "raise an issue" as to testamentary capacity. There must be some evidence that "excites the suspicion of a court". See Scott v. Cousins, [2001] O.J. No. 19 (S.C.J.) (QL) at p. 8, para. 41.

77 The existence of suspicious circumstances does not impose a higher burden of proof on the propounder of the will than the civil standard of proof on a balance of probabilities. However, the extent of the proof required is proportionate to the gravity of the suspicion. See Vout v. Hay, supra and Scott v. Cousins, supra.

78 When considering whether or not there are suspicious circumstances the court may consider:

(1) the extent of physical and mental impairment of the testator around the time the will was signed;

(2) whether the will in question constituted a significant change from the former will;

(3) whether the will in question generally seems to make testamentary sense;

(4) the factual circumstances surrounding the execution of the will;

(5) whether a beneficiary was instrumental in the preparation of the will.

See Schnur, Estate Litigation, looseleaf (Toronto: Carswell, 2005) ch. 2.1.

[31] In my view, the medical and other evidence of physical and mental impairment arising from her recent brain surgery is clearly sufficient to remove from the applicant herein the presumption of capacity on the part of Mrs. Driscoll, and leave upon him the ordinary civil burden of proof that at the time she executed her Will, she had testamentary capacity. There is no issue as to her having signed the Will.

[32] In Hall v. Bennett Estate (2003), 64 O.R. (3d) 191 (C.A.) Charron J.A., (then on the Court of Appeal) summarized the law on testamentary capacity this way at paragraph 14.

14 Numerous cases have dealt with the question of testamentary capacity. It has often been repeated that a testator must have "a sound disposing mind" to make a valid will. The following requirements can be extricated from the case law. In order to have a sound disposing mind, a testator:

• must understand the nature and effect of a will;

• must recollect the nature and extent of his or her property;

• must understand the extent of what he or she is giving under the will;

• must remember the persons that he or she might be expected to benefit under his or her will; and

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

[33] There are, as I said in paragraphs 5-8, two contradictory bodies of evidence, one supporting and the other undermining the assertion that Mrs. Driscoll had testamentary capacity in instructing and executing the Will. After long and earnest consideration, I have come to the conclusion that the evidence weighs more heavily in favour of testamentary capacity than against it. In other words, it is more probable than not that Shirley Driscoll was mentally competent to make the Will she did, and, that she knew and approved of the contents of the Will. It is a conclusion I have reached, although not without some difficulty, not only in view of the evidence of cognitive deficits on the part of Mrs. Driscoll, but also because I see the effect of the Will as simply unfair to all her daughters. However, my personal sense of fair and reasonable parental obligations in matters of estate succession doesn’t count. As Whitaker J. said in Tate v. Gueguegirre, 2012 ONSC 6890, 85 E.T.R. (3d) 255;

167 The outcome may appear to the defendants to be unfair, but that is the right of a testator. The exercise here is not to set aside the intended outcome because it might not seem to be fair to prospective beneficiaries. A testator has the right to treat hopeful beneficiaries unjustly.

168 If there is testamentary capacity, the legitimate and appropriate outcome may seem unreasonable or even cruel to survivors - but that is not the test.

[34] My reasons for concluding that the evidence favours a finding of testamentary capacity and that Mrs. Driscoll knew and approved of the contents of the Will she executed include my view of Shirley Driscoll’s behavior at the relevant time as being not unusual for her, determined and forceful character (“somewhat ornery” might apt) that she was. She was used to doing what she decided to do. Not being allowed to drink beer or smoke while in hospital, shortly after her significant recovery once the benign tumour and associated hydrocephalus had been overcome, she checked out of the hospital against medical advice. She resumed her life in the family home, albeit not recovered from all physical and mental deficits but was able to carry on, with some help, as before. There has been no suggestion that Mrs. Driscoll lived in a state of being incapable of managing her affairs for the 19 years she lived in her own home following her brain surgery in the fall of 1995.

[35] It was her idea to make a Will. There is no evidence otherwise. In light of the perilous state she had come through in hospital and her significant experience with estate matters, her decision to make a Will is hardly surprising.

[36] The nature of her Will, while perhaps distressing in its exclusion of provision for any of her daughters, was the product of her mind-set. As Mr. Fortey noted, “…she had experience with both her father’s and her father-in-law’s Wills, both of which “followed the somewhat rural practice of primogeniture.” In the email correspondence set out in paragraphs 12-14 herein, Deanna Fleck said to her sisters “[W]hen we ask the question ‘did she always make it clear she was leaving everything to Jon.’ The answer is yes.” Jean Gilbert said to her sisters “…the doctor did claim she was competent for everyday business. If she didn’t want Jon to have everything she would have changed her will over the last 19 yrs. Any will you find I’m sure will be the same…” And Kathy Farmer said to her sisters “…We all knew that my mother fully intended to leave her estate to her only son Jon…” and stated the same thing in her affidavit evidence.

[37] Notwithstanding the evidence of cognitive deficits at the time she instructed and signed the Will, the degree of impairment is uncertain. Dr. Agbi clearly felt that Mrs. Driscoll was making a rapid recovery and saw no need for further neuropsychological assessment after Dr. Sarazin’s November 1995 assessment that Mrs. Driscoll could grant Power of Attorney. Dr. Agbi noted continued steady improvement upon seeing Mrs. Driscoll on January 6, 1996 and said “Had I noted any concerns on my part with respect to her capacity or cognitive abilities 1 would have requested a further neuropsychological report.” The subsequent assessments were done in the course of settling Mrs. Driscoll’s action against her own insurer. There was evidence suggesting that Mrs. Driscoll was aware that making appearances of disability would enhance her potential recovery in her lawsuit, even advised to play it up when being questioned or examined.

[38] While I call Dr. Lightfoot’s December 30, 2015 capacity assessment opinion the most comprehensive review of the medical file concerning Mrs. Driscoll’s neuropsychological status, I am not persuaded that Dr. Lightfoot’s conclusion is authoritative. While she assembles the findings and test results of the several assessments, and while there are clearly cognitive and physical deficits, her conclusions under criteria 1 and 2 that such deficits would “have an impact” on Mrs. Driscoll’s knowledge and understanding of her making a Will, and of her property are hardly dispositive. The question is “how much impact?”

[39] When it comes to Dr. Lightfoot’s consideration of criteria 3 and 4 regarding the potential claims of her daughters on her estate, she credits Mrs. Driscoll with no appreciation of such claims and as giving them no consideration. Indeed she labels the lack of provision for the daughters as irrational. Her assessments under these two criteria are based entirely on her assumption that there was no rationale for Mrs. Driscoll’s Will. Some of us may think this lack of provision for the daughters unreasonable and unfair, but it was not necessarily more an irrational act on the part of Mrs. Driscoll than it was on the testators of medieval and feudal Europe for whom primogeniture in one form or another was also a mind-set. The evidence amply supports a finding that Mrs. Driscoll’s background and ancestry was responsible for her adult mind-set that the girls make their way in life by successful marital unions, and property passes from one generation to the male heirs of the next. That was her rationale.

[40] As to criteria 5, Mrs. Driscoll’s ability to express her wishes clearly and without ambiguity, an experienced lawyer who had extensive dealings with Mrs. Driscoll found no difficulty in understanding the wishes and instructions of his client. Indeed, this illustrates the difficulty in ascribing weight to a retrospective capacity assessment by an expert, even a highly qualified one, who does not have first-hand experience with and knowledge of the individual being assessed. Mr. Fortey had extensive dealings with Mrs. Driscoll over the years, including being instructed by her in the protracted Cornelius Driscoll estate problems, and expressed no difficulty in receiving instructions from her as to her Will. Indeed, he also discussed with her the possible severance and sale of part of her Dwyer Hill Road property. He said she appeared to him to be as always in his previous dealings with her when she signed the Power of Attorney, gave instructions on the Will, and came in to sign the Will. The real person can be quite different from the one constructed from file review.

[41] That is not to say that I would characterize Mr. Fortey’s dealings with Mrs. Driscoll in late December 1995 and late January 1996 as the classic demonstration of inquiry into a client’s capacity. He didn’t recall noting anything particularly different about her from previous dealings. He made the sparsest notes. She made no big deal about her accident and hospitalization, and he noted no need for a more probing examination of her capacity. The fact that he drew her a Will with no alternative arrangements if her sole estate trustee and beneficiary died reflected a pretty basic instruction, but Mr. Fortey did testify that he would have explained to her the shortcomings of the document.

Undue Influence

[42] The last issue I have to consider is whether there was any undue influence on the part of Jon in his mother’s making of the Will that favoured only him and excluded all his sisters. The Objectors take the position that as the only child left in the home, Jon was abusive to his mother, used the house as a place to party, and that she felt dependent on him and was dominated by him. The three Objectors all gave evidence supporting that position. Deanna Fleck testified that her mother, Mrs. Driscoll, had told her that Jon had threatened to kill her and actually punched and stabbed her, over money. This evidence was strongly denied, of course, by Jon and by Herbert Clarke, Mrs. Driscoll’s long-term friend who moved into the house with her in early 1996. He said Jon never abused his mother and if he was rude to her, “would have got the back of her hand.” He said Jon did anything she needed for her.

[43] The Objectors also point to the fact that Mrs. Driscoll settled her claim against her own insurers for her injuries in John’s truck roll-over, for a very modest amount when it became apparent that the insurer was going to go after Jon to indemnify them for any pay-out to his mother. The Objectors say this shows how dominant his position was over his mother. I would have to say that such settlement is equally consistent with a mother who for her own reasons was protective of her son.

[44] The Objectors also submit that the evidence suggesting that Jon was with his mother when she went to see Mr. Fortey on December 22, 1995 to execute the General Power of Attorney and, it seems, also gave him instructions as to the Will, is evidence of his undue influence over her. Mr. Fortey could not recall seeing Jon with his mother on December 22, 1995, and eschewed any suggestion that if he was with her, he was certainly not in his office while they discussed and executed the Power of Attorney or discussed what provision should be in the Will.

[45] Jon Driscoll testified that he was not involved in arranging for the Power of Attorney, did not drive his mother to see Mr. Fortey and execute it, and was not there when it was executed. He said he was not present when she gave instructions on the Will. He did concede, however, that it looked like his signature as a witness on the Power of Attorney, that had been scratched out and replaced by Mr. P. Geoffrion. Jon did not have a copy of the Will, but arranged through another lawyer for it to be obtained from Mr. Arbique’s office where the file had gone when Mr. Fortey retired.

[46] The law as to “undue influence” in the making of a Will was concisely set out by Day J. in Pascu v. Benke (2005), 13 E.T.R. (3d) 296 (Ont. S.C.) at para 26. He wrote,

26 Undue influence is another ground which may be applied to invalidate a will. To constitute undue influence in the eyes of law, there must be coercion. The burden of proof of undue influence is on the attackers of the will to prove that the mind of the testator was overborne by the influence exerted by another person or persons such that there was no voluntary approval of the contents of the will. The burden is the civil burden on the balance of probabilities. Undue influence sufficient to invalidate a will extends a considerable distance beyond an exercise of significant influence or persuasion on a testator; as indicated above, coercion is required. Essentially, the testator must have been put in such a condition of mind that if he could speak he would say, “This is not my wish, but I must do it.” A testamentary disposition will not be set aside on the ground of undue influence unless it is established on a balance of probabilities that the influence imposed by some other person or persons on the deceased was so great and overpowering that the document reflects the will of the former and not that of the deceased testator. Further, it is not sufficient to simply establish that the benefiting party had the power to coerce the testator, it must be shown that the overbearing power was actually exercised and because of its exercise the will was made. References: Mackenzie, James in Feeney’s Canadian Law of Wills, 4th ed. (Butterworths Canada Ltd., 2000), at paras. 3.1.3; 3.5; 3.6; 3.7 and 3.13; Mitchell v. Mitchell, 57 O.R. (3a) 259; Banton v. Banton (1998), 164 D.L.R. (4th) 176 (Gen. Div.); and Vout v. Hay (1995), 7 E.T.R. (2d) 209 (S.C.C.).

[47] Undue influence is not simply influence that leads a testator to want to make provision for someone in a Will, but some such powerful influence as to coerce the testator to do so even against her will. Whether or not I should find suspicious circumstances sufficient to alter the onus of proof as to the probability of undue influence, it makes no difference. On all the evidence, a finding that Jon Driscoll exercised undue influence on his mother such that she made her Will in his favour is not even close. I cannot possibly find on the balance of probabilities, that there was any undue influence, by Jon or anyone else in this case.

Disposition

[48] Having found that Shirley Driscoll made the Will in question and had testamentary capacity to do so upon giving instructions and executing it, and having found that she was under no undue influence in making her Will, the first two issues to be tried, as set out under paragraph 3 herein are resolved in the affirmative and the third issue is resolved in the negative. The fourth issue, one of litigation costs, remains to be decided. I will deliver a costs ruling after considering written submissions to be exchanged and submitted to me within 30 days.

[49] At trial the Applicant raised the matter of amending the valuation of the estate assets in his original Application for a Certificate of Appointment in October 2014 by reducing the total valuation of the estate assets in light of the appraisals of the real property as set out in paragraphs 23 and 24 herein. Those appraisals were obtained in 2015 about a year after the Application for Certificate of Appointment of Estate Trustee was filed. I suggested a written motion to that effect, and shortly following the trial, such a motion was filed.

[50] The Objectors asked that I not determine that motion until it had been decided who the Estate Trustee would be. Having dismissed the objections to the Application, and having determined that the Will is valid, the Certificate of Appointment of Jon Driscoll as Estate Trustee with a Will can issue once a formal judgment has been taken out. Unless there is more to be said about the amendment to the asset valuation in the Application, it should be permitted as sought and the judgment should particularize it.

Judgment accordingly.

Rutherford J.

Released: Monday July 18, 2016.