CITATION: Sportelli v. MacLeod, 2016 ONSC 6915
COURT FILE NO.: 16289/13
COURT FILE NO.: 2098/13
DATE: 2016/11/08
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Ursula Sportelli
Self-represented
Plaintiff
- and -
Malcolm MacLeod
L. Farrell, for the defendant
Defendant
Malcolm MacLeod
- and –
Ursula Sportelli
HEARD: September 20 and 21, 2016 at London
MITCHELL J.:
REASONS FOR JUDGMENT
Introduction
[1] These two actions were tried together pursuant to the Order of the Honourable Justice Goodman made March 10, 2015.
[2] The parties to the actions consist of Ursula Sportelli, the daughter of the deceased, Angela DeRyke, and Malcolm MacLeod, the husband of the late Ms. DeRyke.
[3] Mr. MacLeod resides in London. Ms. Sportelli resides in Montreal.
[4] Ms. Sportelli did not attend at the commencement of the trial on September 19, 2016. She sent an e-mail to trial coordination on September 18, 2016 advising of travel issues and that she was unable to attend in London the next day. She indicated she understood the trial would proceed in her absence. Out of an abundance of caution, the trial was adjourned to September 20, 2016, to allow Ms. Sportelli one further opportunity to attend at trial. A copy of the court’s endorsement was sent to Ms. Sportelli at her e-mail address on September 19, 2016.
[5] Ms. Sportelli did not attend on September 20, 2016 and the trial proceeded in her absence.
Overview of the Litigation
Estate Action – Court File No. 16289/13
[6] In this action, Ms. Sportelli seeks a declaration that the last will and testament of Ms. DeRyke dated July 9, 2012 is valid and the only valid testamentary document signed by the deceased, the will was duly executed by the deceased, the deceased possessed the necessary testamentary capacity to make a will at the time of its execution and the deceased had knowledge of and approved of the contents of the will at the time of its execution.
Replevin Action – Court File No. 2098/13
[7] In this action, Mr. MacLeod seeks a permanent order in the nature of replevin requiring Ms. Sportelli to forthwith deliver up to Mr. MacLeod certain items of his personal property taken from the Claredon property (later described in these reasons) following Ms. DeRyke’s death. Pursuant to a mid-trial motion, the statement of claim was amended to attach Schedule A comprising a list of the items of personal property removed from the Claredon property (the “Personal Property”).
[8] In addition, Mr. MacLeod seeks the return of funds removed by Ms. Sportelli from his personal bank account and accounts held jointly by him and Ms. DeRyke.
Background
[9] Ms. DeRyke and Mr. MacLeod were married on August 10, 1987 and during the early years of their marriage they resided in Montreal. Mr. MacLeod worked in the telecommunications industry and Ms. DeRyke worked as a waitress.
[10] In 1992, the couple purchased property in Holland (the “Holland Property”). Title to the Holland Property was taken in Ms. DeRyke’s name, alone.
[11] Ms. Sportelli is the daughter of Ms. DeRyke from a previous marriage. The relationship between Ms. Sportelli and her mother was often strained. In 1985 at the age of 15, Ms. Sportelli ran away from home. She returned in the Fall of 1988 and moved in with her mother and Mr. MacLeod. She also resided with them while she attended college during the period 2000-2003.
[12] In 2005, Mr. MacLeod lost his employment in Montreal and found work in London, Ontario. Approximately a year later, Ms. DeRyke joined him in London where they resided together in a rented townhouse.
[13] In April 2008, the couple purchased a property municipally described as 48 Claredon Crescent, London, Ontario (the “Claredon Property”). Title to this property was taken in their joint names. Later that same year, Mr. MacLeod lost his job in London and returned to Montreal for employment. Ms. De Ryke remained in London.
[14] As is evident from the foregoing, Mr. MacLeod and the deceased enjoyed an unconventional relationship for many years. For the 4 years preceding Ms. DeRyke’s death, Mr. MacLeod resided in an apartment in Montreal while Ms. DeRyke resided in the Claredon property in London. The couple would visit on weekends and holidays with Ms. DeRyke regularly travelling to Montreal to spend time with both Mr. MacLeod and Ms. Sportelli.
[15] In the Fall of 2011, Mr. MacLeod was charged with impaired driving. This was not his first brush with the law and upon his conviction he was sentenced to a period of three months’ incarceration. He began serving his sentence at EMDC in London on June 11, 2012. Coincident with Mr. MacLeod’s incarceration, Ms. DeRyke was diagnosed with a terminal brain tumour on June 13, 2012.
[16] Ms. DeRyke was hospitalized in London during the period June 18-22, 2012 and then re-admitted on July 27, 2012. On July 9, 2012 Ms. DeRyke attended with her lawyer, Mr. James Elsley, at his office and executed the will and powers of attorney. Under the will, Ms. Sportelli was named as the sole estate trustee and sole beneficiary of her mother’s estate. She was also granted power of attorney over her mother’s property.
[17] Mr. MacLeod was released from detention at the completion of his sentence on September 24, 2012. At this time, Ms. DeRyke remained hospitalized in London. At the direction of Ms. Sportelli, Mr. MacLeod was not permitted to visit with Ms. DeRyke at the hospital. Upon attending the Claredon property, Mr. MacLeod observed that the house had been emptied of its contents and in particular the Personal Property had been removed.
[18] Pursuant to arrangements made by Ms. Sportelli, Ms. DeRyke was transferred to a palliative care hospice in Montreal on October 4, 2012 where she died on November 13, 2012. Mr. MacLeod was not advised of her death directly. He came to learn about his wife’s death through correspondence advising that her pension benefits had been cancelled.
[19] The last time Mr. MacLeod saw Ms. DeRyke was late May 2012. The last time they spoke was on July 5, 2012. The couple exchanged letters during Mr. MacLeod’s period of incarceration; however, in a letter sent to Mr. MacLeod in late August 2012, Ms. DeRyke asked him not to communicate with her. Hospital records indicate Ms. DeRyke had expressed fear of Mr. MacLeod; however, Ms. Sportelli admitted Mr. MacLeod had never been abusive towards her mother.
Analysis
Estate Litigation
[20] The primary issue for determination in this action is the validity of Ms. DeRyke’s will dated July 9, 2012.
[21] The test for assessing a testator’s mental capacity in the context of a will challenge and the applicable burden of proof were established by the Supreme Court of Canada in Vaut v. Hay.[^1] First, the propounder of the will must prove that the formalities required by the Succession Law Reform Act[^2] have been complied with.[^3]
[22] Once the formalities are proven, a presumption arises that the testator knew and approved of the contents the will. However this presumption may be rebutted where there are suspicious circumstances suggesting, for example, that the testator lacked the mental capacity to know and approve the contents of her will. Where suspicious circumstances are present, the presumption is spent and the propounder of the will reassumes the legal burden of proving knowledge and approval and, where suspicious circumstances are present relating to mental capacity, the propounder of the will also reassumes the legal burden of establishing testamentary capacity.[^4]
[23] In this case, Ms. Sportelli is the propounder of the will and as such has the onus of proving compliance with the statutory formalities. Ms. Sportelli did not attend at trial and did not offer any evidence to support a finding that the requisite formalities had been met. I have no doubt Mr. Elsley could have provided the necessary evidence; however, Mr. Elsley did not testify and the court does not have the benefit of his evidence.
[24] While the failure to prove compliance with the statutory formalities is sufficient to declare the will invalid, to ensure due consideration of the central issue, namely, Ms. DeRyke’s testamentary capacity at the time she executed the will, I will assume, for the purpose of my analysis, due execution of the will and the existence of a presumption in favour of Ms. Sportelli that as a result of the due execution of the will Ms. DeRyke had knowledge of and approved the contents of the will.
[25] Because Ms. DeRyke is deemed to have knowledge of and to have approved the will, the onus now shifts to Mr. MacLeod to establish the existence of suspicious circumstances with regards to Ms. DeRyke’s mental capacity when she instructed the preparation of and executed the will in July 2012.
[26] Mr. MacLeod was called as the sole witness at trial. In addition, admissions briefs containing the admissions of Ms. Sportelli given on examinations for discovery in the actions were made exhibits at trial. So, too, were the medical records relating to treatment of Ms. DeRyke. The hospital records relating to the deceased were also made an exhibit.
[27] In 2011, Ms. DeRyke’s behaviour began to change. She began taking trips without telling Mr. MacLeod in advance. She took a trip to Cuba, one to Holland, one to Antigua and a cruise to the Panama Canal. While in Cuba she met a man who accompanied her to Holland, Antigua and the Panama Canal. Mr. MacLeod testified that prior to her diagnosis Ms. DeRyke began exhibiting strange behaviour. He recalled indications of paranoia. For example, she kept the doors locked at all times. Once Mr. MacLeod received a telephone call from Ms. DeRyke advising that she was distressed and was planning to throw herself down a flight of stairs. Moments later she said she was fine. On another occasion, she left a message on Mr. MacLeod’s cell phone saying the house was on fire. When Mr. MacLeod returned her call she claimed to have no recollection of the message.
[28] In a discharge document dated June 22, 2012 reference was made to Ms. DeRyke’s personality change in the 8 to 12 weeks prior to diagnosis of the brain tumour. Similarly, in a handwritten admission document dated June 18, 2012 reference is made to an 8 to 12 week history of headaches, personality changes and paranoia. Nursing history reports dated June 18, 2012 make reference to “varying in orientation at times”. A request for consultation report dated June 18, 2012 makes reference to “‘paranoia’ at home – ‘someone else in the house’”. In another request for consultation and report of the same date reference is made to “likely in need of power of attorney for decision-making”.
[29] The hospital records indicate that on July 31, 2012 Ms. DeRyke was transferred from the oncology floor to the palliative care ward. In a discharge document dated August 1, 2012, the following notes of Dr. Sexton shed light on the mental capacity of Ms. DeRyke in July 2012. These notes read in part:
Ms. DeRyke’s past history is fairly clear. She had been having some difficulties with personality change, forgetfulness, and general ataxia, as well as left-sided weakness that have been plaguing her for approximately 6 to 8 weeks before investigations in hospital...The patient came in to patient review I believe some time on Friday and her general status was declining. She was assessed and it was obvious that the patient could no longer stay at home on her own. The patient also had some fears about a spouse who would do her harm. There was a lot of confusion and ability to process information was very jumbled. Memory was also impaired.
[30] It is evident from a review of the hospital records that Ms. DeRyke’s mental functioning was beginning to deteriorate in June 2012. Personality changes and paranoia were noted. A CAT scan revealed 25 percent of her brain was compromised by the tumour. Such massive involvement of the brain suggests serious intrusion on her mental functioning. Based on the hospital records and her death a mere five months following diagnosis, there is little doubt the tumour was pervasive and aggressive.
[31] I am satisfied that Mr. MacLeod has established that suspicious circumstances exist which bring into question Ms. DeRyke’s mental capacity and her ability to have knowledge and to have approved of the contents of her will executed on July 9, 2012. The onus now reverts to Ms. Sportelli to establish on a balance of probabilities that Ms. DeRyke had knowledge and approved of the contents of the will. As already noted in these reasons, Ms. Sportelli did not attend at trial and called no evidence. As such, she has not met her evidentiary burden with regards to establishing the validity of the will and the will is hereby declared invalid.
[32] In the result, Ms. DeRyke has died intestate and pursuant to the Succession Law Reform Act, Mr. MacLeod, her spouse, receives a preferential share of her estate in the approximate amount of $200,000 with the balance of her estate, if any, to be shared 50-50 by Mr. MacLeod and Ms. Sportelli.
Replevin Action
[33] Aside from periods of unemployment during the marriage, Mr. MacLeod was largely the breadwinner for the family. Ms. DeRyke achieved her highschool diploma and worked as a waitress in restaurants for many years. Ms. DeRyke did not work after moving to London in 2006.
[34] After Ms. DeRyke was readmitted to hospital in late July, 2012, Ms. Sportelli exercised her right under the power of attorney executed in her favour earlier that month.
[35] On September 21, 2012, three days prior to Mr. MacLeod being released from detention, Ms. Sportelli moved out of the Claredon property. During this time, Ms. Sportelli was the only person to have access to the Claredon property. In these proceedings, Ms. Sportelli has admitted to removing the Personal Property from the home.
[36] On her examination for discovery Ms. Sportelli claims that her mother instructed her to remove items from the home and remove money from the bank accounts. It is clear on the evidence that by August 2012 Ms. DeRyke did not have the mental capacity to provide those instructions. I find that Ms. Sportelli was without authority to remove the Personal Property from the Claredon property. These items were owned solely by Mr. MacLeod or were owned jointly by Mr. MacLeod and Ms. DeRyke. She must account for these items whether by a return of the items or payment of their value.
[37] Ms. Sportelli admits to withdrawing $34,282.78 from a Scotiabank account (737420264881) held jointly in the name of her mother and Mr. MacLeod in August 2012 using the power of attorney granted by Ms. DeRyke in her favour. She further admits that a significant portion of these funds were used for her own personal use and not for the care of her mother or the maintenance of the Claredon property.
[38] Ms. Sportelli admits to using funds totaling $8,567.88 from a Bank of Montreal account (21833052289) held jointly in the name of her mother and Mr. MacLeod using the power of attorney granted by Ms. DeRyke in favour of Ms. Sportelli. She further admits that a portion of these funds were used for her own personal use and not for the care of her mother or the maintenance of the Claredon property.
[39] Ms. Sportelli admits to transferring funds from a Bank of Montreal account (2828368082) in the name of Mr. MacLeod, alone, on August 13, 2012 in the amount of $3,639.14 and on August 31, 2012 in the amount of $3,000. The funds were transferred to the joint bank account (289) and then subsequently withdrawn. However, Mr. MacLeod has already been reimbursed by Bank of Montreal the amounts taken from this account without his or any authority and is therefore not entitled to further reimbursement by Ms. Sportelli.
[40] Ms. Sportelli was not entitled to use or transfer these funds in the manner in which she did. She has provided no accounting or other evidence to substantiate the use and transfer of these funds. I find that Ms. Sportelli misappropriated these funds without lawful justification and in breach of her obligations pursuant to the power of attorney bestowed upon her. With Mr. MacLeod incarcerated she seized upon the opportunity to take advantage of the vulnerable condition of her mother so as to order her mother’s affairs in a manner which benefited her to the complete exclusion of Mr. MacLeod.
[41] Mr. MacLeod provided $11,000 as a downpayment for the purchase of the Holland property. Ms. DeRyke did not contribute to the downpayment. The transaction and mortgage documents were drawn in Dutch and Mr. MacLeod was therefore unable to read these documents. Mr. MacLeod was on a business trip at the time of the purchase. Based on his monetary contribution towards the acquisition of the Holland property, he assumed that title to the property would be taken in their joint names. Both Mr. MacLeod and Ms. DeRyke made the mortgage payments. Following Ms. DeRyke’s death it was discovered the Holland property was in the name of Ms. DeRyke, alone.
[42] I am satisfied on the evidence that it was intended Mr. MacLeod and Ms. DeRyke would take title to the Holland property, jointly. It would not have been in keeping with their past practice of acquiring property jointly, for example the Claredon property and their bank accounts, for title to the Holland property to have been taken in the name of Ms. DeRyke, alone, particularly in circumstances where Mr. MacLeod made the downpayment.
[43] To the extent this court has the jurisdiction, it is ordered that title to the Holland property be rectified to reflect Mr. MacLeod and Ms. DeRyke, as joint owners, at the time of acquisition of this property.
Disposition
Estate Action
[44] The will dated July 9, 2012 is hereby declared invalid and the estate trustee during litigation, Daniel McNamara, shall distribute the net funds of the estate of Andrea DeRyke in accordance with the Succession Law Reform Act.
Replevin Action
[45] Judgment shall issue on the following terms:
(a) Ursula Sportelli shall, within 30 days, return to Malcolm MacLeod the Personal Property listed on Schedule A hereto remaining in her possession or over which she maintains control.
(b) Title to the Holland property (located at 4 B Mijnsherenplan, Rotterdam, 3081 CH, the Netherlands), shall be transferred to Malcolm MacLeod; and
(c) Ursula Sportelli shall pay to Malcolm MacLeod the following sums:
(i) $8,567.88 withdrawn from joint account no. 289;
(ii) $34,282.78 withdrawn from joint account no. 881; and
(iii) $40,500 representing the replacement value of the items of Personal Property, less the value of any item of Personal Property listed on Schedule A returned to Malcolm MacLeod within 30 days.
Costs
[46] Mr. MacLeod seeks his costs of both actions on a full indemnity basis in the amount of $79,462.61. He relies on an offer to settle served August 30, 2016 as triggering rights under rule 49.10 and claims the unproven allegations of fraud and the complexity of the issues support an award of costs on a full indemnity basis. Mr. MacLeod did not pursue a transfer of the bank account located at ING in the Netherlands. Furthermore, he was not successful in obtaining repayment of amounts withdrawn from his personal account and reimbursed by Bank of Montreal. Last, the replacement value of the jewelry is not $30,000 as claimed; rather, is $22,510. The maximum amount payable for the Personal Property removed by Ms. Sportelli assuming no items are returned to Mr. MacLeod is $40,500 not $47,990 as claimed. I find that Mr. MacLeod was not more successful at trial than the terms of his offer.
[47] I see no reason to deviate from the usual approach which is to award the successful party its partial indemnity costs. Accordingly, Mr. MacLeod is entitled to his costs of the actions in the amount of $52,800 inclusive of disbursements and HST.
“Justice A. K. Mitchell”
Justice A. K. Mitchell
Released: November 8, 2016
[^1]: 1995 CanLII 105 (SCC), [1995] 2 S.C.R. 876.
[^2]: R.S.O. 1990. c. S-26.
[^3]: Section 4 provides that a will is not valid unless it is signed by the testator, the testator executes the will in the presence of two or more witnesses present at the same time and the witnesses subscribe the will in the presence of the testator.
[^4]: Vaut v. Hay, Supra, at paras. 26 and 27.