PEMBROKE COURT FILE NO.: 14-166 DATE: August 9, 2016

ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE MATTER OF THE ESTATE OF GILLES ROGER POITRAS, deceased B E T W E E N:

PAMELLA POITRAS Applicant

Mary Shushack for the Applicant

• and -

THE ESTATE OF GILLES ROGER POITRAS, deceased, CHANTAL DAVEY in her personal capacity, DANY POITRAS in his personal capacity, CHANTAL DAVEY and DANY POITRAS, executors of the last will and testament of Gilles Roger Poitras deceased, JACQUELIN POITRAS, MARIETTE DELORME and LOUISE GOUGEON Respondents

John W. Montgomery, solicitor for the Respondents, Chantal Davey, Dany Poitras, Mariette Poitras-Delorme and Louise Gougeon

HEARD: September 23, 24 and December 21, 2015

REASONS FOR DECISION

James J.

Introduction

[1] This application is brought by a stepmother against four of her five stepchildren in relation to the estate of the husband of the applicant, Gilles Poitras (sometimes hereinafter referred to as “Gilles”). She claims that less than two months before he died, the respondents improperly influenced Gilles to change his 2010 will to her disadvantage. She also says they persuaded him to delete the applicant as a joint owner of two savings certificates with a total value of about $180,000 and to amend the beneficiary designation of his Retirement Income Fund (the “RIF”) from the applicant to his estate.

[2] In addition, the applicant claims that Gilles failed to make adequate provisions for her proper support and advances a claim pursuant to Part V of the Succession Law Reform Act (“SLRA”) for her care and maintenance. She seeks an order transferring the entire estate to her to satisfy her claim for dependant’s relief.

[3] The parties have agreed to defer the equalization of property pursuant to the Family Law Act pending the outcome of this proceeding.

The Participants

[4] The applicant, Pamella Poitras, is about 82 years old. She was married to Gilles for over twenty six years. It was a second marriage for both of them. They both had children from their prior marriages. She had a good relationship with her stepchildren.

[5] Gilles died of cancer on September 5th, 2013 at 77 years of age following a gradual decline in his health that took place over many months. He was relatively mobile until about a month before he died.

[6] Gilles was a retired trucker. He had a pension from the Teamster’s Union. Through savings and investments, Gilles built up enough assets for the two of them to live comfortably in retirement. Their home at 492 Howe Street in Pembroke was registered in his name. Gilles owned this house prior to their marriage. In 2013 it was valued at about $176,000 and was mortgage-free.

[7] The respondents include all but one of Gilles’ adult children. Mariette Delorme is about 57 years old and lives in Alfred, Ontario. Chantale Davey is about 56 years old and lives near Peterborough, Ontario. Louise Gougeon is about 52 years old and lives in Bowmanville, Ontario. Dany Poitras is about 44 years old and lives in Whitby, Ontario. Dany was about 14 or 15 years old when his father remarried and he lived at home with Gilles and Pamela until he was 17 or 18. They have a brother, Jacquelin Poitras, sometimes referred to as Jack, who is about 53 years old and lives in Edson, Alberta. Unlike his siblings, Jack is aligned with the applicant in this litigation and therefore was not named as a party to the proceeding.

[8] For clarity and ease of reference, I will sometimes refer to the participants by their first names.

The 2010 Will

[9] Gilles made a will in 2010 which was prepared by a local lawyer, J.P. Quintal. He named Pamela as his estate trustee. He gave her a life estate in the matrimonial home. The household expenses, taxes and utilities were to be paid out of either the income or capital of the estate. Pamela was empowered to sell the matrimonial home and use the proceeds to acquire another residence for her lifetime. After payment of the house expenses, she was entitled to receive the income of the estate during her lifetime as well. The household furniture and his personal effects were to go to Pamela. Upon Pamela’s death, the real estate would become part of the residue and would be distributed to his children.

The 2013 Will

[10] This will was made less than two months before Gilles died. It was prepared by a different local lawyer, Ken Conroy. In this will, two of Gilles’ children, Dany and Chantal, were named as the estate trustees. Pamella’s expense-free life estate in the matrimonial home was maintained. Pamella’s right to the income of the estate during her lifetime was deleted. The possibility of rolling the life estate over into a new home was removed. The 2013 will provided that when Pamella was no longer able to live in the matrimonial home, it was to be sold and Pamella was to receive a bequest of $50,000, following which the residue was to be distributed.

The Investments

[11] The applicant says that Gilles made changes to his three most significant investments shortly before his death due to pressure from his children. There was a jointly-owned investment certificate (“GIC”) worth about $80,000 at the National Bank. There was also a jointly-owned GIC at the Meridian Credit Union for $100,000 that was purchased in January, 2013. For reasons that were unknown to Pamella, Gilles changed these investments from joint ownership to his name alone the day after he changed his will. Pamella was present with Gilles at both banks when these changes were made and consented to the changes.

[12] He also had a RIF that was worth about $68,000. Pamela had been the designated beneficiary since 1997 but her name was replaced by the estate as the beneficiary on the same day that the ownership of the GICs was changed. Pamella was present when Gilles instructed bank personnel to make the change.

[13] There were other, smaller jointly-owned accounts and investments that were not changed.

The Events During the Summer of 2013

[14] In May, 2013, Jack travelled from his home in Alberta to visit Gilles and Pamella. While in Pembroke, he took them shopping for a new vehicle at Gilles’ request. Gilles asked Jack not to tell his siblings that they had been looking at new cars because they were opposed to him spending money on things they thought he didn’t need.

[15] Gilles became more ill through the spring and summer of 2013.

[16] Pamella says that Chantal called in mid-July and said that Gilles needed to get a note from his doctor so he could make a new will. Pamella and Gilles had not discussed the possibility of his making a new will. This was news to her.

[17] Chantal’s version is different. She says that she received a call from Pamella indicating that Gilles had recently reviewed his will and noticed that there was something wrong with it, that it contained some sort of error. She did not inquire into the details. Chantal suggested that they might want to go to someone other than Mr. Quintal. Pamella asked her to make an appointment with someone else and Chantal asked her brother Dany to set something up. He made an appointment at Mr. Conroy’s office for July 24.

[18] It is not disputed that Dr. Rainville, Gilles’ family doctor, prepared a note on July 18, 2013 stating that Gilles was competent to change his will. It is also not disputed that Gilles and Pamella attended the appointment at Mr. Conroy’s office on July 24. Chantal accompanied Pamella and Gilles to Mr. Conroy”s office. Chantale waited outside in the reception area while Pamella and Gilles met with Mr. Conroy.

[19] What is disputed is whether Pamella knew that Chantal was coming to Pembroke the day of the appointment with Mr. Conroy. Pamella says Chantal arrived unannounced on the 24th and said they needed to get ready to go to the lawyer’s office. Chantal had a binder of papers with post-it notes sticking out that Pamella says Chantal brought with her to the appointment. Pamella also said that Gilles was “extremely ill’ when the will was signed. He was not eating or drinking properly. His digestion was poor. He fell almost every day. He was on heavy pain medications.

[20] Chantal’s version of events is that Pamella called several days before the appointment and asked her to prepare a list of issues to consider before they met with the lawyer. Chantal and her husband drove to Pembroke on Saturday, July 20 and Chantal sat with both Gilles and Pamella while they discussed the list of “thoughts to consider” that Chantal had prepared. Pamella asked her to return on July 24 when they went to see Mr. Conroy and Chantal said she would.

[21] Mr. Conroy swore an affidavit setting out his recollection of the visit. He said they had a note from Dr. Rainville saying that Gilles was mentally competent. He was satisfied that Gilles was able to give instructions which were given clearly and without hesitation or confusion. He said that Pamella was concerned about being able to continue to reside in the house. They seemed satisfied with the discussion that took place and Gilles asked to have the will completed as soon as possible. Mr. Conroy prepared a draft for them to review later that day. When they returned, he gave them a copy to read over then met with them in his office while Chantal waited in the reception area. He said he asked Gilles if the “will provided what he wanted. He agreed that it did. Mrs. Poitras was very clear that she did not object to the will. The will was then signed in my presence and the presence of my assistant Mary O’Connor and in the presence of Mrs. Poitras.”

[22] At the hearing of this application, Pamella’s counsel was very critical of the services provided by Mr. Conroy. For example, when cross-examined on his affidavit, Mr. Conroy acknowledged that he did not ascertain their relative incomes or the assets and liabilities of Gilles. He did not ask about Gilles’ net worth. He did not ask about the existence of a prior will. He was unable to explain why there was no mention in the will about who was to get the contents of the house. Pamella’s counsel also commented on the fact that his notes did not record many salient points that would typically be discussed when taking instructions.

[23] As well, Pamella’s counsel suggested that the unexplained presence of an extra set of initials on pages one and two of the will made the will invalid because of improper signing of the document. The evidence was not clear as to who wrote the extra set of initials.

[24] The day after the 2013 will was signed, Gilles and Pamella went to the National Bank and the Meridian Credit Union. In the presence of Pamella he gave instructions to change his GICs from joint ownership to his name only. Pamella agreed to sign the necessary papers. She did not question Gilles as to why he wanted to make these changes and he did not provide an explanation. Pamella says she thinks he was pressured to do so by his children. In addition, he changed the beneficiary designation on his RIF from Pamella to his estate. Pamella said that she had been the beneficiary since 1997. Again, no explanation was offered by Gilles.

[25] Pamella recounted a weekend near the end of July when her four children visited them from out of town at Gilles’ invitation for a last good-bye. She was surprised that Chantal and her husband showed up as well, having been there twice within the last week.

[26] By early August, Gilles was very ill. His children visited frequently. Later they set up a 24 hour watch at his bedside. Dany was concerned that visitors were staying too long and put a sign in the front yard restricting visitors to family members.

[27] Pamella began to feel isolated and ostracized by Gilles’ children. They did not include her in the schedule for sitting with Gilles in his room after he became bed-ridden. It was difficult for her to be alone with Gilles. These feelings continued to grow and came to a head at Gilles’ funeral in early September when there appeared to be two camps at the funeral and a definite chill in relations. Jack said that his brothers and sisters made nasty comments about Pamella behind her back. Pamella said Dany told her it was her responsibility to pay the funeral costs when, as a former funeral director, he must have been aware that funeral costs were properly an expense of the estate. In commenting on how his brother and sisters had gathered around Gilles and sat for hours in his bedroom before he died, Jack told his sister Chantal that they were lucky it was not his house because he would have kicked them all out. In response, Chantal said that Jack tended to mischaracterize events and that some of his statements are exaggerated or untrue. Similarly, she characterized many of Pamella’s statements as untrue, disappointing and hurtful.

The Applicable Law

[28] On a will challenge the applicable principles were succinctly summarized by Cullity, J. in Scott v. Cousins, [2001] O.J. No. 19 (S.C.J.) as follows:

37 It is notorious that the location of the burden of proof is of unusual importance in cases of contested wills. Evidence of a deceased person’s knowledge and approval, testamentary capacity or capitulation to undue influence is often indeterminate where it is not entirely lacking. Even on the issue of due execution, there may be an absence of witnesses available to testify. For this reason, past decisions are replete with references to the burden of proof on particular issues and to presumptions that will arise if certain facts are proven.

38 For this jurisdiction the topic has been clarified by the reasons of the Supreme Court of Canada delivered by Sopinka J. in Vout v. Hay (1995), 7 E.T.R. (2d) 209 (S.C.C.)]…

39 The principles that I believe are established by the decision of the Supreme Court, and that are relevant here, can be stated as follows:

1. The person propounding the will has the legal burden of proof with respect to due execution, knowledge and approval and testamentary capacity.
2. A person opposing probate has the legal burden of proving undue influence.
3. The standard of proof on each of the above issues is the civil standard of proof on a balance of probabilities.
4. In attempting to discharge the burden of proof of knowledge and approval and testamentary capacity, the propounder of the will 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, (at page 227)
5. This presumption “simply casts an evidential burden on those attacking the will.” (ibid.)
6. The evidential burden can be satisfied by introducing evidence of suspicious circumstances – namely, “evidence which, if accepted, would tend to negative knowledge and approval or testamentary capacity. In this event, the legal burden reverts to the propounder.” (ibid.)
7. The existence of suspicious circumstances does not impose a higher standard 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.
8. A well-grounded suspicion of undue influence will not, per se, discharge the burden of proving undue influence on those challenging the will: It has been authoritatively established that suspicious circumstances, even though they may raise a suspicion concerning the presence of fraud or undue influence, do no more than rebut the presumption to which I have referred. This requires the propounder of the will to prove knowledge and approval and testamentary capacity. The burden of proof with respect and fraud and undue influence remains with those attacking the will. (ibid.)

Are Suspicious Circumstances Present in this Case?

[29] The applicant argues that there are suspicious circumstances present in this case that relate to both capacity and undue influence issues. In my view the applicant has succeeded in invoking the doctrine of suspicious circumstances regarding undue influence but not, as I will explain later, on the question of Gilles’ capacity to make a new will. As a result, the propounders of the 2013 will cannot rely on due execution of the 2013 will as proof of Gilles’ knowledge and approval of it.

[30] Suspicious circumstances can relate to the question of the testator’s “knowledge and approval” of the terms of the will or to the question of capacity to make a will (see Vout v. Hay at para. 27). Knowledge and approval as it is used in this context relates to whether the will in question truly reflects the maker’s intentions, free from improper coercion or pressure that prevents the testator from doing what he really wants to do.

[31] The factors that I view as constituting suspicious circumstances on the issue of undue influence are the timing and circumstances surrounding the 2013 will, the change in ownership of the investments and the new beneficiary designation for the RIF when nothing had changed in Gilles’ relationship with Pamella, and all of which occurred without explanation by Gilles or discussion with Pamella. These changes altered a long-established status quo. In addition, it was Gilles’ children who made the selection of the new lawyer in place of the lawyer who prepared the 2010 will. They also made the appointment. Added to this was Dany’s suggestion that Pamella, rather than the estate, should pay the funeral costs. These events warrant raising a caution flag.

[32] Undue influence can be subtle and is usually only provable by circumstantial evidence (Scott, para. 48 citing Atkinson on Wills (2nd ed. 1953) p. 638).

Due Execution of the Will

[33] There is no issue as to the authenticity of Gilles’ signature on the 2013 will and no question that it was signed by him in the presence of Pamella together with Mr. Conroy and his assistant as subscribing witnesses. The unexplained presence of an extra set of initials is insufficient to prompt a finding that the will was not properly signed and witnessed. I find that the 2013 will was properly executed in compliance with all statutory requirements.

Capacity

[34] Pamella’s counsel referred to the case of Gironda v. Gironda, 2013 ONSC 4133 on the question of what is meant by the term “testamentary capacity”:

[51] Testamentary capacity requires a person to be capable of understanding the essential elements of making a will such as property, objects, persons who would normally benefit and revocation of prior testamentary dispositions. The testator does not need to be fair, considerate or kind and, indeed, may even act capriciously provided that instructions are given freely from a sound mind, memory and understanding.

Banks v. Goodfellow (1870), L.R. 5 Q.B. 549 (C.A.), at 567-569, is recognized as the leading authority on the criteria for testamentary capacity and requires the following:

1. understanding the nature of the act of making a will and its consequences;
2. understanding the extent of one’s assets;
3. comprehending and appreciating the claims of those who might expect to benefit from the will, both those to be included and excluded;
4. understanding the impact of the distribution of the assets of the estate; and
5. that the testator is free of any disorder of mind or delusions that might influence the disposition of his or her assets.

[35] Pamella argues that Gilles did not have testamentary capacity because:

He did not have knowledge and approve of the contents of the Will; he was terminally ill, fatigued and unable to concentrate on the issues; he had bladder and liver cancer, 10 heart stents and had been diagnosed as early as April 2013 with failure to thrive. He was on numerous medications. By May 29 he was spending a good deal of the day resting in bed or in a chair and had been too tired to complete a doctor’s questionnaire that day. He did not understand the nature and effect of the testamentary act, that is the execution of the Will because he did not have the full picture. He did not review his previous Will, his investments plans or change of designation of the beneficiary of the RIF with his lawyer. He did not understand the nature and extent of the proprietary interests being conferred by the Will on his Wife and his children. Mr. Conroy did not review the prior Will with him, the difference between the two, the nature or extent of his assets and liabilities and those of his wife, the needs his wife may have in the future or her ability to meet those needs, his investments plans or change of designation of the beneficiary of the RIF (see Applicant’s Factum, para. 204)

[36] There is an absence of evidence that Gilles suffered from mental confusion, delusions or was disoriented as to time and place leading up to and on the day he made the new will. Although a formal assessment was not conducted, his family doctor was satisfied that he had capacity to change his will and provided a note to that effect. Similarly, Mr. Conroy met with Gilles on two occasions on July 24 and indicated that he did not have a concern about Gilles’ capacity to make a will.

[37] As to whether Gilles had a proper understanding and appreciation of his assets or his obligations, Pamella’s counsel conflates Mr. Conroy’s lack of inquiry and lack of knowledge of Gilles’ financial affairs to a lack of knowledge on Gilles’ part. Also, there is a lack of evidence establishing that Gilles was out of touch with or was unaware of his property, his assets and liabilities, Pamella’s financial position or his obligations. While there is a genuine issue whether he failed to adequately provide for Pamella’s proper support, she was not left destitute. Her income was about $24,000 annually, she had investments worth about $110,000, a life estate in the family home with expenses paid by the estate and a bequest of $50,000 when she no longer wanted to reside there and the house was sold.

Knowledge and Approval

[38] Ordinarily, proof of testamentary capacity and due execution of the will are sufficient to establish that the maker of the will had knowledge of, and approved, the contents of the will. However, when suspicious circumstances are present, the presumption in favour of the propounders that the will reflects the true intentions of the testator no longer applies. Ultimately the issues are to be decided on the usual civil standard of proof i.e. the balance of probabilities (see Schnurr, Estate Litigation, 2nd ed., p. 2-3).

Undue Influence

[39] The connection between “knowledge and approval” and undue influence is apparent in the definition of undue influence provided by Viscount Haldane in Craig v. Lamoureux, [1920] A.C. 349 at p. 357:

Undue influence, in order to render a will void, must be an influence which can justly be described by a person looking at the matter judicially to have caused the execution of a piece of paper pretending to express a testator’s mind, but which really does not express his mind, but something else which he did not really mean.

[40] A more recent statement of the meaning of undue influence is found in the decision of Cullity J. in Banton v. Banton at para. 89:

A testamentary disposition will not be set aside on the ground of undue influence unless it is established on the balance of probabilities that the influence imposed by some other person on the deceased was so great and overpowering that the document reflects the will of the former and not that of the deceased. In such a case, it does not represent the testamentary wishes of the testator and is no more effective than if he or she simply delegated his will-making power to the other person.

[41] There is sufficient evidence to support a reasonable inference that some of Gilles’ children attempted to influence Gilles regarding how he should divide his estate between his wife and his children. The more difficult question is whether any such pressure amounted to coercion that overpowered Gilles’ true intentions.

[42] My view on this issue is that the evidence falls short of establishing that the pressure exerted by Gilles’ children was so great that the 2013 will ought to be set aside. The factors I have considered in coming to this conclusion may be summarized as follows. Gilles was not isolated by, and dependent upon, his children prior to the changes in question. He continued to live independently with Pamella in his own home. For all but the last few weeks, Pamella was his primary caregiver with the help of community support such as homecare services. She accompanied him to both Mr. Conroy’s office to change his will and the next day to the banks to change his investments. While the appointment with the lawyer was made by his children, they did not sit in on the discussions or provide instructions to Mr. Conroy. There was no pattern of substantial pre-death transfers of assets to his children.

[43] Pamella testified that she did not think it was improper for Gilles to remove the joint ownership designation from some (but not all) his investments. She candidly acknowledged that it was his money and that these investments had existed since before they were together. In her evidence given at the hearing of this application, she did not take issue with his right to decide who should inherit these assets when he died.

[44] At the same time, it is difficult to understand the logic underlying the change in the beneficiary designation regarding Gilles’ RIF worth $68,000. If it had been left untouched, it would have rolled-over to Pamella without any tax consequences. As a result of deleting her as the beneficiary, the RIF terminated upon Gilles’ death and became taxable in full. Experience and common sense allow an inference to be made that taxpayers generally prefer to minimize and defer the payment of taxes where possible.

Succession Law Reform Act

[45] In addition to the other relief sought, the applicant requests that the entire estate be vested in her name under Part V of the SLRA. This request engages a consideration of whether or not Gilles made adequate provision for the proper support of Pamella following his death. Section 58(1) provides as follows:

Order for support

58. (1) Where a deceased, whether testate or intestate, has not made adequate provision for the proper support of his dependants or any of them, the court, on application, may order that such provision as it considers adequate be made out of the estate of the deceased for the proper support of the dependants or any of them.

[46] The factors to be considered in an assessment of whether or not a deceased person has made adequate arrangements for the support of his dependants are set out in section 62(1) of the SLRA. I will refer to the most relevant factors arising from the facts of this case:

a. Pamella has adequate current assets and means to meet her present resources; b. Her asset base will not increase significantly in the future; c. Pamella can contribute to her own support; d. Pamella is 82 years old and enjoys good health at present; e. Her present needs are being met; f. She has no capacity to earn an income; g. She was married to Gilles for 26 years and during that time was a dedicated homemaker, assisted in the upbringing of Gilles’ youngest child and took care of Gilles in his waning years. Her entitlement to on-going support is at a high level; h. Pamella was Gilles’ only dependant. He was legally required to make adequate provisions for her future care even after his death; i. Gilles does not have any other legal obligations.

[47] In making his 2013 will, Gilles was exercising his freedom to dispose of his property as he saw fit and this testamentary autonomy should not be lightly interfered with. A testator’s freedom to distribute his property as he chooses is a deeply-entrenched common law principle (see Spence v. BMO Trust Company, 2016 ONCA 196 at para. 30). At the same time, the legislature has placed limits on this power to ensure that a deceased person has made adequate just and equitable provisions for his dependants.

[48] The reference to “care and maintenance” in section 62 means more than paying for the bare necessities of existence and involves a consideration of both legal and moral obligations. Gilles had a legal obligation to adequately support Pamella, even after his death. To the extent that Gilles may also have had a moral duty to his adult children as a judicious father to share with them the bounty of his estate, when moral obligations come in conflict with legal duties, legal duties take precedence.

[49] Sometimes legal duties can be owed to adult, independent children where they have made significant contributions to the estate. In this case, however, there was no evidence of financial contributions or other material benefits flowing to Gilles from his children (see Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807 at para. 29, 30).

[50] Gilles has a moral obligation to Pamella as well. In addition to his legal obligation to support her as a dependant following a long and successful marriage, his moral obligation is to ensure that she is properly cared for in the years following his death. The moral obligation to care for a dependant following the death of the person who was providing support is said to be an obligation of high order (see Tataryn, supra, paras. 30, 35). There is a wide discretion granted to the court under the SLRA to devise an adequate, just and equitable sharing of Gilles’ estate. Each case turns on its own facts but it would not be exceptional for the legal and moral claims of a surviving spouse, following a lengthy marriage, to consume the bulk of a modest, even moderate-size, estate. By comparison, the claims of independent, adult children are more tenuous but if the size of the estate permits, some provision for children ought to be made (Tataryn, supra, para. 31).

[51] The respondents submit that Gilles made adequate arrangements for Pamella’s support. They point to the significant liquid assets that were either hers or became her property after Gilles died. In addition, Pamella has the benefit of a life estate in the matrimonial home free of expenses together with an entitlement to receive the sum of $50,000 from the sale proceeds when she was no longer able to live there. Also, the respondents point out that Pamella has a monthly income of over $1,900 and her monthly expenses are about $1,500.

[52] Pamella’s financial position following Gilles’ death requires a consideration of her income, expenses and assets. She did not have any notable liabilities. Pamella’s monthly income totaled $1,976.33 which consisted of:

a. OAS $550.99 b. CPP $407.53 c. CPP Survivor’s Pension $501.43 d. Teamster’s Survivor’s Pension $516.37 Total $1,976.33

[53] Pamella’s monthly expenses (bearing in mind that the estate paid her housing costs) were estimated at $1,500.

[54] Pamella’s assets as at September 2013 totaled $110,763.88 plus a future bequest of $50,000 which are detailed as follows:

a. BMO chequing account $13,442.00 b. TFSA $5,541.65 c. RIF $9,834.00 d. National Bank, joint account, $57,517.00 e. Meridian Credit Union, joint account, $11,253.34 f. London Life, policy 30679578, $4,141.13 g. London Life, policy 30772545, $9,030.76 h. Bequest from sale of house $50,000.00 Total $160,763.88

[55] Gilles’ income in the year before he died was $29,360. He owned the matrimonial home valued at $176,000 and his GICs and RIF (not including the investments that passed to Pamella on his death by right of survivorship) were worth about $250,000 (before taxes on the RIF), for a total of $426,000. His net worth substantially exceeded that of Pamella’s. Also worth noting is the fact that he owned the matrimonial home before they were married.

[56] While Pamella’s present needs may be said to be adequately protected, her unascertained future needs are not. Her life expectancy and future health needs are unknowable at this time. The cost of assisted living can be substantial. These substantial costs may have to be incurred for a lengthy period of time. She is entitled to a more secure financial future than that which was provided by her husband. I have also taken into account that Pamella will be able to live cost-free in the matrimonial home at the expense of the estate for an unknown period of time.

[57] Weighing the various factors that I have referred to, I have concluded that Pamella ought to be paid the sum of $85,000 as a lump sum pursuant to section 58 of the SLRA.

[58] In addition, in case there is any doubt, Pamella is entitled to the contents of the matrimonial home except for those items specifically bequested to another person. I mention this because counsel for the applicant suggested that this was in doubt under the 2013 will.

[59] It is unknowable at this time how much of the income and capital of the estate will be required to pay the costs of maintaining the home so long as Pamella has a life estate interest in it. For this reason it seems prudent that the distribution of the residue not take place until the life estate is terminated. If counsel wish to make submissions on this point, they may deliver written submissions not exceeding ten pages in length within 45 days on such schedule as they may agree to. The same shall apply to the issue of legal costs.

Mr. Justice Martin James

DATE RELEASED: August 9, 2016