Quinlan v. Caron, CITATION: 2016 ONSC 8124

COURT FILE NO.: 12956/09

DATE: 2016-12-27

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Lorraine Quinlan, plaintiff

AND: John Caron, personally and in his capacity as trustee for the estate of Madeleine Caron, defendant

BEFORE: Mr Justice Ramsay

COUNSEL: Gary Enskat for the plaintiff; Malte von Anrep QC for the defendant

HEARD: December 19, 20, 22 and 23, 2016 at Welland

ENDORSEMENT

[1] At the conclusion of the trial I dismissed the action with reasons to follow. These are they.

[2] Paul and Madeleine Caron had two children, John Caron and Lorraine Quinlan. Lorraine is suing John to invalidate their mother’s will of 2007, which left everything to John. If that will is invalid, Madeleine’s estate will be divided equally between John and Lorraine under the terms of a previous will.

[3] The facts may perhaps be more readily understood if summarized in table form.

February 17, 1999

Assisted by William Heelis, Paul and Madeleine make mirror wills leaving everything to each other on the death of one and equal shares to John and Lorraine on the death of the survivor.

October 31, 2002

Paul dies. Within weeks Lorraine becomes estranged from Madeleine.

November 28, 2002

John takes Madeleine to Jill Anthony. Madeleine appoints John and his wife Heather her attorneys for property.

July 17, 2003

Assisted by Jill Anthony, Madeleine executes a new will leaving everything to John.

November 8, 2004

Jill Anthony has Dr Molloy do a capacity assessment.

October 2005

Madeleine, recuperating from knee surgery, has to move to a retirement home. Madeleine does not like the food. She makes up with Lorraine.

January 20, 2006

Lorraine takes her mother to Mr Heelis and executes a codicil to the 1999 will which has the effect of reviving it and revoking the 2003 will. Everything is now shared equally between John and Lorraine.

January 20, 2006

At the same time Madeleine executes a power of attorney naming John, Lorraine and Lorraine’s husband Brian Quinlan as attorneys.

February 1, 2006

John and Heather retain Robert Morningstar, a lawyer, to write to Brian Quinlan contesting the new power of attorney and warning him not to execute it.

February 8, 2006

At the request of Jill Anthony Dr Molloy performs another capacity assessment on Madeleine. For two hours preceding Dr Molloy’s arrival, John is present with his mother, discussing Lorraine’s behaviour over the years and the reasons why Lorraine should not benefit from Madeleine’s estate. Dr Molloy considers this improper.

March 17, 2006

Madeleine, assisted by Jill Anthony makes a new will leaving everything to John and Lorraine.

June 28, 2006

Lorraine begins renovations on Madeleine’s home with a view to Madeleine moving back into it from the retirement residence. It is agreed between Madeleine and Lorraine that Lorraine will use Madeleine’s money. To this end, Lorraine is provided a credit card and a debit card on Madeleine’s accounts. Over the summer she will have $36,000 worth or work done, which eventually will be accounted for and documented.

August, 2006

Madeleine moves back home. Lorraine stays with her for a few days. Madeleine is not happy about the way the house has been renovated and redecorated. She does not like sleeping downstairs on a small bed with no box spring. She cannot find her things. She goes to the bank and finds out that Lorraine has spent her money. She calls John and says, “I am in trouble.”

September, 2006

Madeleine accuses Lorraine of stealing her money and tells her to leave and not to come back. Lorraine ceases contact with her mother.

October 23, 2006

John and Heather take Madeleine to see Virginia Workman to talk about a new power of attorney and will. Ms Workman declines the brief.

February 27, 2007

John takes Madeleine to Jane Clarkson. Madeleine executes powers of attorney naming John her attorney for property and personal care.

May 16, 2007

Dr Molloy conducts a capacity assessment on Madeleine at the request of Jane Clarkson. Ms Clarkson drafts the contested will on Madeleine’s instructions.

May 18, 2007

Madeleine executes the will.

September 7, 2008

Madeleine dies.

[4] On John’s motion for summary judgment, Tucker J. found that there was no genuine issue for trial as to the Madeleine’s capacity to make a will: 2011 ONSC 318; leave to appeal refused 2011 ONSC 1391. Tucker J. found, however, a genuine issue for trial as to whether the will was the product of undue influence.

Undue influence

[5] A person can understand what he is doing but still be acting by reason of coercion or fraud: Trotter v. Trotter, 2014 ONCA 841, para. 62.

[6] Benotto J.A. explains in Trotter:

Undue influence involves the domination of the will of one person by another. Undue influence exists when a testator is coerced into doing that which she does not desire to do: Wingrove v. Wingrove (1885), 11 P.D. 81 (Eng. Prob. Ct.), at p. 82. As stated by Cullity J. in Scott v. Cousins, [2001] O.J. No. 19, 37 E.T.R. (2d) 113 (S.C.), at para. 113, quoting E.V. Williams et al., Williams, Mortimer and Sunnucks on Executors, Administrators and Probate, 17th ed. (London: Stevens & Sons, 1993), at p. 184:

There is no undue influence unless the testator if [she] could speak [her] wishes would say "this is not my wish but I must do it."

59 The high burden of establishing undue influence rests with the party asserting it. However, circumstantial evidence can be used by those challenging a will to discharge their burden -- otherwise, "undue influence would cease to have much practical significance in the law of wills": Scott v. Cousins, at para 48.

63 In Boyse v. Rossborough (1857), 10 E.R. 1192 (U.K. H.L.), Lord Cranworth said, at p. 1211: I am prepared to say that influence, in order to be undue within the meaning of any rule of law which would make it sufficient to vitiate a will, must be an influence exercised either by coercion or by fraud...

It is, however, extremely difficult to state in the abstract what acts will constitute undue influence in questions of this nature. It is sufficient to say, that allowing a fair latitude of construction, they must range themselves under one or other of these heads -- coercion or fraud.

[7] In Scott v. Cousins, [2011] O.J. No. 19, Cullity J. quoted with approval:

Undue influence is a subtle thing, almost always exercised in secret, and usually provable only by circumstantial evidence: Atkinson on Wills (2d edition, 1953), page 638.

Assessment of the witnesses

[8] Lorraine Quinlan was not a believable witness. She answered questions too often by changing the subject. She offered weak explanations for outrageous behaviour. This is perhaps not so important because she has no direct knowledge of any undue influence exercised by her brother. Whatever I make of Lorraine, any evidence of John’s undue influence does not come from her. I can say that Lorraine is a mean person, apt in her own words to “lash out.” She manifested an obvious sense of entitlement to her mother’s estate: she wrote to others that she had earned it. Finally, while I accept that she did not steal from her mother I have no doubt that she intended to take over her mother’s house. She did not move her own belongings, including her partner’s target pistols, into the house for her mother’s use. Madeleine’s fear that her daughter would take over was well grounded.

[9] Heather Carter, John’s wife, made a very favourable impression on me. She struck me as intelligent and fair-minded. Where she disagrees with John, I prefer her account. I believe that Lorraine threatened her, as Ms Carter said she did.

[10] John was not so impressive. Toward the end of his cross-examination there was an air of arrogance to his demeanour that did not improve his standing in my eyes. He testified that when Madeleine moved back home with Lorraine’s help, he removed himself from the situation because he knew that Lorraine would steal from Madeleine. But his wife testified that they were busy with her running for Parliament and were happy that Lorraine was taking care of Madeleine. John’s attendance before Dr Molloy’s capacity assessment of 2006 also contradicts his assertion that he was standing back and knew nothing of what was going on. I did not find him reliable.

[11] I think that John believed that Lorraine had stolen from Madeleine and that he told others so. He is documented as having told Dr Molloy so. Anne Lukacz, a neighbour, testified that John told her so many times. John says she is mistaken. I believe Mrs Lukacz and I do not believe John.

[12] I believe, on the evidence of Joann Visser, John’s ex-wife, that Lorraine conveyed through her a threat to John’s daughter.

[13] For a reason that I cannot fathom John called his aunt, Jacqueline Hardy, as a witness. Jacqueline is Madeleine’s sister. Now age 90 she is quite deaf but not the least addled. She is a lovely person, but she has no personal knowledge of the relevant affairs. She took Lorraine’s side at one point, but John’s later.

[14] Thomas Stevenett, a neighbour, testified as to the incident in the fall of 2006 when the police were called. I believed what Mr Stevenett said. He neutralized John’s account of this incident as far as I am concerned.

[15] Those were the main witnesses.

Circumstantial evidence of undue influence

[16] There are suspicious circumstances galore:

a. Madeleine kept changing her will and power of attorney;

b. The changes tended (though not always) to benefit whichever child took her to the lawyer;

c. Lorraine used Heelis, but John used Anthony, Morningstar and Clarkson, after unsuccessfully consulting Workman.

d. At the crucial time Madeleine relied on John for much and she had, in her words, “no one else.”

e. Madeleine had diminished capacity. She was in the early stages of dementia. When she was at full mental strength, she left her money to both children equally.

f. John and Lorraine did not like each other.

g. John spent two hours trying to talk his mother out of reinstating Lorraine as an heir in 2006 just before the capacity assessment.

[17] On the other hand, there are circumstances negating undue influence. For example:

a. John’s attempt to talk his mother out of reinstating Lorraine in 2006 failed.

b. When John locked Lorraine out of Madeleine’s house at Madeleine’s request, it isolated Madeleine from Lorraine but not in general.

c. Madeleine had never had a good relationship with Lorraine and Madeleine had ample motive to cut her out of the inheritance. Madeleine was not pleased with the renovations to the house. It might have been better for her to sleep downstairs, but she did not see it that way. She had good reason to think that Lorraine wanted to take over her house. She did not have good reason to think that Lorraine had stolen from her but undoubtedly that is what she thought.

[18] Madeleine had further reason to disinherit Lorraine that I have not yet mentioned. Some time after Paul died, Lorraine, who was in charge of the burial arrangements, bought a plot in which Paul was buried. She bought the one next to it for herself. Lorraine had a gravestone placed which read only: “Paul E. Caron 1923 – 2002. Father dearly loved by Lorraine and grandchildren.”

[19] One is speechless. I recognize that Madeleine made up with Lorraine after this, but I cannot imagine that she ever forgave her.

[20] In his report to Jane Clarkson of February 26, 2007, Dr Molloy said:

I cannot prove her [Madeleine's] allegations about Lorraine's misdemeanors. So I am not sure if someone has told her these stories. I have no way of proving the authenticity of these stories about Lorraine taking money. If this is untrue and Lorraine has not taken any money from her mother, then it is likely that Mrs. Caron has been unduly influenced against Lorraine to remove her as her Power of Attorney. If these allegations can be proven, then Mrs. Caron is acting to protect herself from her daughter Lorraine.

So I am treating these accusations as fact. If they are untrue, then Mrs. Caron is being unduly influenced by her son to change her Power of Attorney in his favour against his sister. ...

[21] I see a third option. The false allegations of theft came from Madeleine, not John. John just agreed with them.

[22] On all of the evidence Madeleine, although somewhat diminished, retained her strong will. To me the best example is found in the note of a support worker dated October 19, 2006. The worker had the idea that Madeleine was avoiding appointing John her attorney. She feared that her son would move her to a retirement home as he feels that would be best for her. “Client probably feels she has more control if she doesn’t appoint anyone.”

[23] Madeleine was a stubborn, difficult old woman who produced two stubborn, difficult children. She was not above manipulating John and support workers by claiming that she was afraid of Lorraine. That would be easier to say than, “Now that I have no more use for her I have no more time for her.” I find that when it came down to it Madeleine did not want anything to do with Lorraine any more by 2007.

[24] To my mind, on the preponderance of the evidence the will of May 18, 2007 was the product of Madeleine’s own volition. For that reason I dismissed the action and upheld the validity of the will.

J.A. Ramsay J.

Date: 2016-12-27