CITATION: Dujardin v. Dujardin, 2016 ONSC 6980
COURT FILE NO.: 3333/12
DATE: 2016/11/09
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Loretta June Dujardin
Self-represented
Plaintiff
- and -
Noel Dujardin, Trustee of the Estate of Jack Henry Dujardin
F. Leitch, for the defendant
Defendant
HEARD: September 26, 27, 28 and 29, 2016 at St. Thomas
MITCHELL J.:
REASONS FOR JUDGMENT
Overview
[1] The plaintiff, Loretta June Dujardin (“Loretta” or the “plaintiff”), is the spouse of the deceased, Jacque Henry Dujardin (“Jack” or the “deceased”). The defendant, Noel Dujardin (“Noel” or the “defendant”), is the deceased’s older brother.
[2] The plaintiff seeks a declaration that two wills of the deceased, a corporate will and a personal will both dated March 9, 2009, are invalid on the basis that the deceased lacked testamentary capacity. In particular, the plaintiff claims the deceased lacked testamentary capacity because he suffered from organic brain disease brought on by his chronic alcoholism.
[3] At the commencement of trial, the plaintiff abandoned her challenge of the wills on the basis of undue influence.
Background
[4] Jack was born on January 2, 1942 in Belgium. Jack, together with his parents and seven siblings, immigrated to Canada in 1958 whereupon his parents purchased farmland and began farming tobacco.
[5] On the advice of lawyers and accountants the farming operation was carried on through a corporation, Dujardin Farming Limited. The farm corporation was created in 1967 with Jack’s parents holding the majority of shares and each of the eight Dujardin children having a minority interest.
[6] Jack’s mother died in 1980 and his father died in 1983. His father’s will provided that the shares in the corporation be distributed equally among the children with each child holding a 12.5 percent interest.
[7] Over the ensuing years, Noel and Jack purchased the shares of their six siblings with their brother, Luke’s, interest most recently purchased in 1998. Following the purchase of Luke’s interest, Noel and Jack each held an equal interest in the corporation[^1]. Noel and Jack resided together in the farm house located on the farm property and carried on the farming operation as partners. The farm property and all of the other business assets were owned by the corporation.
[8] Jack was responsible for planting, cultivating and curing the tobacco. Noel was responsible for handling the finances of the company including payroll and bookkeeping. Noel also did some planting and drove the tractor.
[9] Jack met Loretta in 1982 and Loretta moved into the farmhouse with Noel and Jack in late 1994. Jack purchased a diamond ring for Loretta in 1997 and the couple were married in February 2000. Jack and Loretta had no children together although Loretta had a son from a prior relationship. Noel never married and has no children.
[10] At the time the brothers acquired Luke’s interest in the corporation, they each executed a will leaving their entire estate to the other. These “mirror” wills were executed on February 27, 1998 after receiving advice from their lawyer, Douglas Gunn.
[11] In 2004, the brothers rented their tobacco quota to the Barbiers.
[12] In August 2006, Mr. Gunn advised the brothers they should consider revising their wills to provide for both a corporate will and a personal will. A corporate will would avoid the payment of probate tax on their respective shares in the company. On September 20 2006, the brothers were provided with draft copies of their wills and asked to arrange for execution of the newly-prepared wills. The brothers ignored this advice until 2009.
[13] In October 2007, Jack suffered a massive heart attack and was hospitalized for a period of approximately 2 weeks.
[14] In 2009 the Government introduced the tobacco transition program (“TTP”) designed to reduce the amount of tobacco farming in Ontario. As part of this program, the Government purchased all outstanding tobacco quota on the undertaking of the farmer to cease tobacco farming.
[15] On March 9, 2009 the brothers attended at the offices of Mr. Gunn and executed the TTP documents and the replacement wills. Following the Government buyout in 2009, the brothers grew corn, wheat and beans on the farmland.
[16] In May 2010 Jack suffered another heart attack.
[17] In September 2011, Loretta moved to London to take care of her ailing mother.
[18] Jack suffered a stroke on December 20, 2011 and died on December 26, 2011.
Analysis
Burden of Proof
[19] The test and the applicable burden of proof in the context of a will challenge was enunciated by the Supreme Court of Canada in Vaut v. Hay.[^2] First, the propounder of the will must prove that the formalities required by the Succession Law Reform Act[^3] have been complied with.[^4] Once the formalities are proven, a rebuttable presumption arises that the testator knew and approved of the contents of 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 his 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.[^5]
Due Execution of the Wills
[20] In this case, Noel is the propounder of the wills and has the onus of proving compliance with the statutory formalities. The evidence of Douglas Gunn and Nancy Tuck establishes on a balance of probabilities compliance with the formalities. Mr. Gunn and Ms. Tuck testified that together they witnessed Jack’s execution of the wills and subscribed the wills as witnesses in the presence of Jack. The formalities have been proven and, therefore, it is presumed Jack knew of and approved the contents of the wills.
Suspicious Circumstances
[21] A mere allegation of lack of capacity of a testator is not sufficient to defeat the presumption of knowledge and approval of the contents of a will and testamentary capacity once it is established that the testator read over the will, appeared to understand it, signed it, and the signing was attested to by witnesses, and the formalities of the Succession Law Reform Act were complied with. Under such circumstances the attacker of the will must establish an evidentiary foundation that supports the theory the testator lacked capacity or did not approve or understand the contents of the will.[^6]
[22] It is undisputed that Jack was an alcoholic. Noel testified that Jack had a daily drinking ritual. In the late afternoon each day Jack would finish his farm work and head to the Central Hotel or the Knights of Columbus Hall in Aylmer where he would enjoy a couple of drinks and then return home for dinner. He would continue drinking for the remainder of the evening. His beverage of choice was vodka and Clamato juice and he would consume anywhere from 10-30 ounces of liquor each day. Noel testified that Jack would purchase 40 ounces of liquor a day. His longtime friend, Raymond DeeleeBeeck, observed him to pass out at the kitchen table from time to time. The evidence of the witnesses called by the defendant, including business acquaintances, family members and friends all testified that Jack was a habitual drinker as described by Noel; however, these same witnesses, including Mr. DeeleeBeeck, readily acknowledged Jack did not drink before work or while working – his drinking began each day in the late afternoon after his work was finished for the day.
[23] Loretta testified that she observed changes in Jack after his 2007 heart attack. Among other changes, she observed him to be introverted, agitated, more argumentative, delusional. She further observed him to have delayed motor skills and to suffer from shaking and tremors.
[24] Because of his chronic alcoholism, it was conceded by the defendant that the plaintiff had established suspicious circumstances with regards to Jack’s mental capacity at the time he signed his wills. The onus now shifts to Noel as propounder of the wills to prove on a balance of probabilities that Jack had testamentary capacity on March 9, 2009.
Test for Testamentary Capacity
[25] Testamentary capacity is established where the testator:
understands the nature and effect of the will;
recollects the nature and extent of his or her property;
understands the extent of what he or she is giving under the will;
remembers the people he or she might be expected to benefit under his or her will; and
understands the nature of the claims that may be made by persons he or she is excluding under the will.[^7]
(i) Did Jack understand the nature and effect of the wills?
[26] Jack’s farming career evolved from assisting with the family farm operation as a young adult to acquiring with Noel the interests of his six siblings following the death of their parents. The assets of the corporation included the farmland on which he lived and worked with his brother his entire adult life. He understood the need to have a separate corporate will to avoid payment of probate tax. He understood that he and Noel were leaving the other their respective shares in the corporation and other assets because they were business partners. Understanding that Loretta would not benefit under the will, Jack took steps to provide for Loretta outside the will by setting up a RRIF.
[27] Mr. Gunn testified the brothers were adamant in 1998 that they wanted to only benefit the other and this intention was reiterated by the brothers when the new wills were prepared in 2006. Mr. Deeleebeeck testified that Jack discussed the 1998 will with him which suggests he had fully considered its contents and his intentions. Since marrying Loretta in February 2000, neither Jack nor Loretta took the initiative to prepare new wills. Mr. Gunn testified that in 2006 both brothers understood his advice and instructed him to prepare both personal and corporate wills.
(ii) Did Jack recollect the nature and extent of his property?
[28] Jack fully understood the nature and extent of his property. The shares had been in existence since 1967 and Jack has held an interest in the farm corporation since that time. Jack and Noel began acquiring the shares of their siblings starting in 1984 and culminating in the purchase of Luke’s interest in 1998. The acquisition of Luke’s interest in the company took over a year to complete. Jack held a half-interest in the corporation for 13 years prior to his death and signed corporate resolutions from time to time evidencing his half interest.
[29] Mr. Gunn testified that, as the corporate solicitor for the corporation and the brothers since 1997, he had no doubt Jack knew what assets he owned and in particular that his major asset was his 50 percent shareholding in the corporation. He fully understood the extent and value of the quota as evidenced by his TTP application.
(iii) Did Jack understand the extent of what he was giving under the wills?
[30] Jack understood what he was giving under the wills. He told Ray Deeleebeek that he had no one to leave his property to but his brother, Noel. Jack discussed with Mr. Deeleebeeck the contents of his 1998 will. He understood that by leaving all of his property to Noel under the wills that he would need to make some other provision for Loretta. Jack understood that he was leaving all of his assets to Noel and that Noel was doing the same. The intention he expressed in his 2009 wills was the same intention expressed in his 1998 will.
(iv) Did Jack remember the people he might be expected to benefit under his wills?
[31] There was some evidence suggesting Jack did not have a close relationship with his siblings other than Noel, especially Luke. Jack had already paid his brothers and sisters for their respective interests in the farm and no further provision for them was needed. Jack had no children to consider. Leaving all of his property and in particular his shares in the corporation to Noel is consistent with his intentions over the course of his life. Jack shared a lifelong partnership with Noel as friends, brothers and business partners. Noel, in turn, shared the same intention.
[32] In a memo from Mr. Gunn to Ms. Tuck dated September 12, 2007[^8], he wrote: “I am not going to spend any more time conjoling (sic) Dujardins to come in and sign their Wills because they obviously have a thing about not signing them. It may be due to the fact that I think one of them now is married”. Mr. Gunn testified that before the wills were signed in 2009 he raised the issue of provision for Loretta with the brothers. Jack advised Mr. Gunn that he had taken care of his spouse in another way.
[33] The testimony of various witnesses suggested Loretta was often absent from the home during the marriage and that Loretta and Jack did not share a close relationship.[^9] When speaking with Mr. Gunn, Jack referred to himself and Loretta as being “half-married”.
[34] Within this context, Jack understood he had to make provision for Loretta, his wife of 9 years and so, following receipt of the Government buyout monies in 2009, he established a Registered Retirement Income Fund (RRIF) with Bank of Montreal naming Loretta as the sole beneficiary. Jack set up the RRIF without the knowledge and influence of Loretta. On his death, Loretta received approximately $123,000 from the RRIF on a tax free basis. Loretta also received income from the corporation in the six months prior to Jack’s death totaling $9,200. Loretta claimed these monies represented payment for consulting services.[^10] On his death, Loretta received a CPP death benefit of $2,500 and since his death has been receiving dependent income of $525 per month from CPP. If she elects under the Family Law Act, she will receive an equalization payment.
[35] The RRIF and other monies provided to Loretta for her direct or indirect benefit were an appropriate means by which to provide for Loretta as his spouse.
[36] The circumstances in this case are far different from the circumstances in the case of Banton v. Banton[^11] involving the challenge of the wills made by the testator in favour of his much younger new wife. Under his new wills, none of his children and grandchildren benefitted. The wills were made when the testator was 88, ill, disabled and depressed following surgery. The testator’s new wife was a young waitress working at his retirement home. Following his marriage he broke all ties with his children. The new wills replaced wills prepared three years prior which left his estate to his children and grandchildren. The central issue in the case was the mental capacity of the testator. At para. 27, Cullity J. cited the principles for determining testamentary capacity laid down in Banks v. Goodfellow (1870), L.R. 5 Q.B. 549 (Eng. Q.B.) at 565 as follows:
It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties --- that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.
[37] The court was satisfied that Mr. Banton had the necessary understanding of the nature and the effect of his wills and the extent of his property; however, failed the third requirement namely the ability to assess and appreciate the moral claims of his children. Mr. Banton had delusions unsupported by the evidence that his children were not interested in him: they were only interested in his money; they were abusive to him and neglected to provide care and companionship to him. Based on these delusional beliefs, he prepared new wills leaving his entire estate to his new wife.
[38] Contrast the factual matrix in Banton with the context of Jack’s execution of his wills. His new wills executed in 2009 were in substance identical to his will executed in 1998. His entire estate was left to his brother and business partner, Noel. By way of a mirror will, Noel’s estate was left entirely to Jack. The 2009 wills do not reflect a dramatic change in beneficiary as was the case in Banton. At no time did Jack express an intention to benefit any person other than Noel. It is important to note that in 1998 when his first will was executed Jack had already been dating Loretta for approximately three years and had given her an engagement ring.
(v) Did Jack have a condition of the mind that would prevent him from exercising his natural mental capacities and understanding the nature of the claims that might be advanced by Loretta who was excluded under the wills?
[39] Jack may have suffered from a condition preventing him from exercising his natural mental faculties on March 9, 2009 arising from his chronic alcoholism. However, it has been recognized by the court that although chronic alcoholism may affect testamentary capacity, even a habitual drinker while not under the influence of liquor is capable of making a valid will.[^12]
[40] The evidence called by Noel in an effort to show the capacity of Jack’s mind on March 9, 2009 was expansive. The following evidence is particularly relevant:
(i) For many months following his release from hospital in October 2007, Jack did not drink and his health appeared to improve.[^13]
(ii) Dr. Burns saw Jack on May 8, 2008 regarding his driver’s license assessment. At that time, Dr. Burns found that Jack was “alert and well oriented, with no evidence of cognitive impairment…”
(iii) Dr. A. Sohla, family physician, saw Jack twice – on March 31, 2009 and on November 2, 2010. On both occasions Dr. Sohla had no cognitive concerns and believed Jack had full mental capacity.
(iv) James McAvoy, manager of Max Farm Supply Limited, testified that since 1998 Jack regularly purchased crop inputs from him until his death. At no time did he appear to suffer from any cognitive deficiencies.
(v) In January 2009, Jack successfully completed a pesticide safety course offered at Ridgetown College.[^14]
(vi) Jack attended at the offices of Mr. Gunn during the afternoon of March 9, 2009 to execute the TTP documents, corporate resolutions and the wills. Noel testified that Jack had not consumed any alcohol before the meeting and it was only after the meeting that they went to the hotel for a drink. Mr. Gunn, an experienced estate lawyer, testified that it his practice and has been for the past 50 years to assess the capacity and mental competence of a client before executing a will. Nothing in Jack’s behavior suggested a capacity assessment was needed.
(vii) Mr. Gunn testified that before the 2009 wills were executed by the brothers he read the provisions of the wills to them. He confirmed that the brothers had the ability to read and write the English language and understood English. He also had the benefit of a history of dealing with the brothers dating back to 1997.
(viii) Mr. Gunn and Ms. Tuck were both credible and reliable witnesses. They had no reason to be untruthful. They both testified that Jack showed no indications he had been drinking. His speech was not slurred; his breath did not smell of alcohol; he was able to walk. His responses to questions were appropriate which suggested he understood the contents of the wills as read to him by Mr. Gunn. Noel’s evidence corroborated the evidence of Mr. Gunn and Ms. Tuck.
(ix) Tony Van Roestel, former manager of the Knights of Columbus Hall in Aylmer, testified that during the months of July, August, September and October 2009 Jack assisted with the monthly brunch. Mr. Van Roestel had no concerns with Jack’s cognitive abilities.
[41] In response to the evidence in support of Noel’s position, Loretta relies on medical notes and records relating to Jack’s heart attack in October 2007 which make reference to deficiencies in Jack’s cognitive functioning during the initial part of his two-week stay in hospital. Both Jack’s close friend, Ray Deeleebeeck, and his brother Frank testified that during the early part of his hospital stay, Jack was heavily medicated and unable to communicate. This evidence is borne out by the medical records indicating Jack was given morphine intravenously upon his arrival at the hospital. In particular, Loretta points to the discharge summary prepared by Dr. Timothy Burns dated October 23, 2007 which includes the following: “The main problem was with the cognitive dysfunction and confusion disorientation thought to be due to organic brain syndrome secondary to alcohol abuse.”
[42] In that same report, Dr. Burns diagnosed Jack with “cognitive dysfunction”.
[43] Despite this single reference to “organic brain syndrome”[^15], there is no evidence suggesting Jack was, in fact, suffering from this condition. No formal testing was conducted. No formal diagnosis of this condition was made. No autopsy was conducted. Despite his chronic alcoholism, there is no evidence of any cognitive impairment affecting his testamentary capacity on March 9, 2009. Chronic alcoholism, on its own, is not enough. Not all chronic alcoholics suffer from organic brain syndrome. The causal link does not exist on the evidence before me. At the time he executed his wills, the effects of the heart attack on Jack’s cognitive abilities were more than a year and a half behind him and his death was more than two and a half years in front of him. There was no precipitating or immediately pending health event.
[44] The medical evidence is insufficient to support a finding that Jack suffered from a debilitating mental condition preventing him from understanding and approving the contents of his wills and the claims which might be made against him. In fact, there is ample evidence to support a finding that, on a balance of probabilities, Jack met the test for testamentary capacity and had knowledge of and approved the contents of the wills on March 9, 2009 and so find that that on March 9, 2009 Jack Dujardin had testamentary capacity.
Disposition
[45] The wills of Jack Dujardin made March 9, 2009 are hereby declared valid and remitted to probate.
[46] As an aside and as was pointed out to Loretta at the end of the trial, the declaration of validity of the wills does not finally resolve the issues between the parties. Loretta is entitled to elect to take under the Family Law Act.[^16] I presume that in light of this decision declaring the wills (under which she has no entitlement) valid, Loretta will elect to take under the Family Law Act. It is clear on the evidence that following her election under the Family Law Act, Loretta will receive a portion of Jack’s estate. I urge the parties to move quickly to a valuation of the estate and in particular a valuation of Jack’s shares in the corporation so as to distribute this estate without further delay and litigation. Almost five years have passed since Jack’s passing, the time is nigh to allow him to at long last rest in peace.
Costs
[47] Noel was successful in proving on a balance of probabilities the testamentary capacity of Jack and therefore successful in establishing the validity of the wills. As the successful party, Noel is presumptively entitled to his costs of the action. The defendant shall serve and file his costs submissions not to exceed five pages in length by November 22, 2016. The plaintiff shall serve and file her responding costs submissions not to exceed five pages in length by December 6, 2016. Reply submissions not exceeding three pages in length shall be served and filed by December 13, 2016.
“Justice A. K. Mitchell”
Justice A. K. Mitchell
Released: November 9, 2016
[^1]: Noel testified that he held one additional share although the financial and corporate records for the corporation indicate the brothers owned the shares 50/50. [^2]: 1995 105 (SCC), [1995] 2 S.C.R. 876. [^3]: R.S.O. 1990. c. S-26. [^4]: 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. [^5]: Supra, at paras. 26 and 27. [^6]: Ostrander v. Black, [1996] O.J. No. 1372 (Gen. Div.) at para. 33. See also Hynes, v. Borins, [1972] O.J. No. 196 at para. 31. [^7]: Lata v. Rush, 2012 ONSC 4543 at para. 32 citing with approval J.A. Blishen J. in Royal Trust Corp. of Canada v. Saunders, 2006 19424 (ON SC), [2006] O.J. No. 2291 at para. 58. [^8]: Tab 9, Exhibit #2. [^9]: Evidence of Noel Dujardin, Evidence of Douglas Gunn, Evidence of Sharon Barbier, Evidence of Cliff Vincent; Evidence of Fred Holsd. [^10]: Loretta testified she was paid these amounts as consideration for consulting services yet during the three months prior to Jack’s death she was in London caring for her ailing mother and not residing at the farm. [^11]: 1998 14926 (ON SC), 1998 CarswellOnt 3423 (Gen. Div.) [^12]: Lata v. Rush, supra, at para. 30. [^13]: Evidence of Sharon Barbier; Exhibit #27: Clinical notes of Dr. Robert Washburn dated March 31, 2008; Evidence of Danielle Dujardin; Evidence of Raymond Deeleebeeck. [^14]: Evidence of Ray Bosma. [^15]: A condition acquired by acute alcoholics. [^16]: Various orders have been made during the course of these proceedings extending the date by which the plaintiff must file an election under subsection 6(10) of the Act to take under the wills of her late husband or to receive entitlement under subsection 5(2) of the Act. The most recent order dated March 17, 2014 extends the date for electing until two months after the determination of the validity of the wills.