Seepa v. Seepa, 2017 ONSC 5368
CITATION: Seepa v. Seepa, 2017 ONSC 5368
COURT FILE NO.: 05-50/17 ES
DATE: 201709011
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ALAN SEEPA Applicant
– and –
ERIC SEEPA Respondent
Jonathan M. Friedman, for the Applicant
Eddy J. Battiston, for the Respondent
HEARD: September 5, 2017
F.L. MYERS J.
The Motion
[1] In the estates court in Toronto motions for directions are routinely brought on consent in will challenges. The fact pattern in these cases is almost always the same. The applicant has been cut out of a will or has been gifted less than he or she believes was due. Of course, the beneficiary who obtains “more” is usually the one who cared for, or at least spent comparatively more time with the deceased. This lets the disgruntled applicant allege, virtually on that basis alone, that the caretaker beneficiary exercised undue influence to induce the deceased to make an unfair distribution of the estate.
[2] The standard form orders for directions routinely granted on consent in these cases consign the parties to lengthy, intrusive, expensive documentary collection and investigation proceedings that can last for the better part of a year or more. The orders are all or nothing. There are few orders that seem to be tailored to the needs of the individual case. Ongoing case management is generally not provided for.
[3] One wonders whether, in the absence of evidence supporting the causes of action and a need for such extensive processes, there is good reason to subject not just the parties but all of the beneficiaries in these cases to the cost, delay, and distress of lengthy proceedings. The disputes delay distribution of bequests to all of the beneficiaries while a disgruntled relative conducts a fishing expedition and often a deep dive through the deceased’s privileged legal files and most private, personal medical records.
[4] Is it time for a culture shift?
[5] On May 26, 2017, I declined to sign a consent order for directions in chambers in this matter and required the issues to be argued. In particular, I held that if the parties want to obtain an order of the court, “there must be some evidentiary basis to meet an applicable legal test.”
[6] The parties have now argued the issue on the merits. For the reasons that follow the order as requested is granted.
The Facts
[7] Except where otherwise noted, the following background facts are drawn from the summary of facts contained in the factum of the applicant so as to put the applicant’s best foot forward for the purposes of the motion. At this stage of the proceedings, the court is not making definitive findings. Rather, as discussed below, the court will be assessing the quality of the allegations and whether the applicant can make out a minimal evidentiary basis to support the order for directions sought.
[8] The deceased, Silvi Seepa died on October 17, 2015 at age 92. She signed her most recent will on November 17, 2011 when she was 87 years old. The parties are the two children of the deceased. Each has children of his own.
[9] Mrs. Sleepa left her residuary estate to the respondent - her younger son Eric Seepa. She left nothing to the applicant - her eldest son Alan Seepa, or any of her grandchildren. She also signed powers of attorney in favour of Eric.
[10] Throughout their childhood, the parties lived with their parents. Alan moved out of his parents’ home in 1979 to rent his own apartment. Eric moved out four years later.
[11] After the parties’ father passed away in 2001, Eric took care of their mother. Eric carried out all of Mrs. Seepa’s household chores and continued to be her caregiver for the next 10 to 12 years.
[12] By contrast, Alan says that after he moved out, he visited his mother at least twice a year – on Christmas and her birthday. He says that he spoke to her at least once a month.
[13] Alan says that he was not able to visit more often because he has health issues including spinal arthritis that cause him to suffer constant pain and restrict his mobility. He says that his mother was forgiving of his problems as she had back problems of her own.
[14] In or around 2011, while Eric was his mother’s primary caregiver, he transferred most of her assets into joint tenancy with himself. Those assets, which included Mrs. Seepa’s bank accounts, passed to Eric by operation of law on Mrs. Seepa’s death. There is little, if anything, left to form her estate.
[15] Mrs. Seepa’s accounts included funds obtained by her on the sale of her house. Eric withdrew $250,000 from the joint account to buy himself a house. Eric says that his mother gifted him the money. He also used the account as his own.
[16] Alan says that prior to the date of the execution of her will, his mother had raised a concern with him that doctors and nurses refused to treat anyone with the name “Seepa.” He believes that she was diagnosed with dementia in 2013. In light of Mrs. Seepa’s back problems, she was in pain and developed a hump. Alan therefore believes that she might have been under the influence of pain medications when she signed her will.
[17] Eric’s evidence includes disclosure that when Mrs. Seepa sold her house in 2013, she gave gifts of $50,000 to each of his two children. She also gifted $55,000 to Alan’s son that Alan did not mention in his affidavit.
[18] Eric also found in Mrs. Seepa’s papers, a prior will dated November 26, 2010. That will left 20% of the residuary estate to Alan, 15% to Alan’s son Andrew, and the rest (65%) to Eric. Eric also found a reporting letter dated November 26, 2010 from the lawyer who drafted and saw to the execution of the earlier will for Mrs. Seepa.
[19] In the reporting letter, the lawyer confirmed she had reviewed with Mrs. Seepa the status of her assets and liabilities. She listed the principal assets including a life insurance contract in favour of both Alan and Eric. In discussing Mrs. Seepa’s wishes for her residuary estate, the lawyer wrote:
You told me that you were making these bequests because Eric had been most helpful to you, having taken care of you, taking you everywhere, dealing with banks and other entities, and attending to repairs; generally, you relied upon Eric on a day to day basis. Alan had not been helpful and you could not rely upon him.
…I would ask that you review the Will every year or so to see whether it still reflects your wishes. If you need to change any part or all of that document, kindly contact my office so that we can make arrangements for a Codicil or a new will.
[20] As noted above, Mrs. Seepa’s final will is dated November 17, 2011 almost one year to the day later. That will too was accompanied by a reporting letter that Eric found with his mother’s papers. The letter is from the same lawyer and is dated November 17, 2011. The lawyer wrote that Mrs. Seepa told her that her assets consisted of a bank account in which Eric was a joint holder and two pensions. The lawyer confirmed that Mrs. Seepa instructed her to delete Eric’s wife from serving as an estate trustee because Eric and his wife had separated. The letter continues:
You also told me that you wanted to leave everything to Eric or his children, if Eric was not alive, first. You told me that your son, Alan would not come to visit you unless it was a birthday or a holiday or unless he wanted something from you, especially money. Your grandson, Andrew also did not seem to care about you, only calling you once in a while.
[21] The letter then discusses the changes made by counsel to leave the estate to Eric’s children if Eric should predecease Mrs. Seepa. If Eric and his children all died prior to Mrs. Seepa and left no children, then Mrs. Seepa left her residuary estate to Andrew next. Alan took last and only if all of Eric, his children and Alan’s son Andrew predeceased Mrs. Seepa and left no children themselves.
Neuberger v. York, [2016 ONCA 191](https://www.canlii.org/en/on/onca/doc/2016/2016onca191/2016onca191.html),
[22] The legal principles that apply to this case are not in doubt. They were established or confirmed by the Court of Appeal in Neuberger v. York just last year. In a seminal decision in this area of law, Gillese J.A., writing for the court, dealt with the law and policy governing will challenges in our courts. While I will try to draw some conclusions from the case, it would be a vast disservice were I to try to precis the decision rather than directing readers to Justice Gillese’s comprehensive Reasons for Decision in full.
[23] The issue in Neuberger was whether a will should be recognized as valid by the grant of probate (to use the technical term). The following principles emerge from Justice Gillese’s reasons and the Court’s decision:
a. The court’s jurisdiction in probate is inquisitorial because the court’s decision does more than just bind the parties to the dispute. If probate is granted, a will is recognized in rem (or for the whole world). In carrying out its inquisition, the court has a special responsibility to the testator who cannot be present to give voice to his or her true intentions. (See para. 68);
b. A person with a financial interest in an estate may ask the court to probate a will. He or she then has the burden to prove that the will was duly signed, that the testator had capacity when he or she signed it, and that the testator had knowledge of the contents of the will and approved them. (See para. 77);
c. Upon proof that the testator duly signed a will, the law will assume that the other required facts are proven unless someone opposing probate adduces evidence that, if accepted, would undermine the testator’s knowledge, approval, or capacity. This type of evidence is referred to as “suspicious circumstances.” (See para. 77);
d. If suspicious circumstances exist, then the full legal burden reverts to those supporting probate to prove that testator’s knowledge, approval, and capacity. By contrast, those who allege that a will is invalid due to the exercise of undue influence have the burden of proof of that allegation throughout. (See para. 78);
e. The court’s decision to grant probate is discretionary. So too is the manner in which the decision will be made. (See para. 87);
[24] The court has discretion as to the manner or process for the proof of a will. The first issue is whether the court will allow a proponent of a will to prove the necessary facts without a formal hearing or whether the court will require a proponent of a will to engage in a full, formal litigation process to prove the necessary facts. The process for formally proving the necessary facts to obtain probate is referred to as “proof in solemn form.”
[25] The court is empowered and generally will accept proof of probate summarily, without an oral hearing, unless someone with a financial interest asks the court to require proof in solemn form under Rules 75.01 and 75.06 of the Rules of Civil Procedure, RRO 1990, Reg. 194.
[26] At para. 88 of Neuberger, Gillese J.A. discusses the decision whether to require proof in solemn form as follows:
In my view, an Interested Person must meet some minimal evidentiary threshold before a court will accede to a request that a testamentary instrument be proved. In the absence of some minimal evidentiary threshold, estates would necessarily be exposed to needless expense and litigation. In the case of small estates, this could conceivably deplete the estate. Furthermore, it would be unfair to require an estate trustee to defend a testamentary instrument simply because a disgruntled relative or other potential beneficiary makes a request for proof in solemn form. (Emphasis added.)
[27] The issue in this case involves the implementation of the emphasized phrase “some minimal evidentiary threshold.” The Court of Appeal recognized that it is simple for a disgruntled relative to make an allegation. If that were enough to cause an estate to go through formal proof in solemn form, smaller estates could be wiped out just by the process alone. That outcome might well serve the goals of the disgruntled relative who can thereby scorch the earth for all of the real beneficiaries. But it is hardly just.
[28] In addition, the law is replete with directives from the Supreme Court of Canada and all levels of courts in Canada concerning the fundamental importance of the confidentiality of the relationship between lawyers and their clients. No privilege at law is given greater protection than the privilege protecting the confidentiality between clients and their lawyers. Similarly no information is more personal and is accorded a higher standing in discussions of privacy law than a person’s medial files. While one can have philosophical debates as to whether privilege or confidentiality rights ought to survive a person’s death, a court giving voice to a testator’s wishes can readily assume that the testator would not happily expose his or her legal and medical files to the relative whom the testator has chosen to exclude from his or her largesse. There is something innately offensive about the idea that an excluded relative can simply romp through a testator’s most private legal and health information fishing for evidence on making the most meagre of allegations of impropriety on no real evidence.
[29] On the other hand, the reviewing of privileged or confidential files is not nearly so offensive if one is truly concerned that there may have been some wrongdoing committed against a vulnerable testator. The same facts that make a child the primary caregiver of an elderly parent also give that same child much opportunity for misconduct. Moreover, in the standard fact paradigm, the excluded child or relative has no real way to have personal knowledge of the full facts due to the very exclusion that can point equally and ambiguously to a loving or an abusive relationship between the caregiver and the testator.
[30] No one wants to assume that an adult who cares for a vulnerable person, especially a relative, does so out of ill motive. But motive is not the issue in most cases. In fact, it may well be that the caregiver truly believes himself or herself entitled to extra largesse in light of the extra effort and commitment that he or she has made. Such is the insidiousness of conflict of interest that when faced with a possibility of personal enrichment, people can rather readily fail to see the ignobility of self-serving misconduct.
[31] Justice Gillese resolved the tension between the difficulty faced by an excluded relative proving undue influence or suspicious circumstances and the risk of an excluded relative subjecting all others to the delay, expense, and inappropriateness of a fishing expedition through private information. She held that the court will only require proof in solemn form where the applicant provides proof of some minimal evidentiary threshold.
[32] Counsel were not able to locate any cases in which this phrase has been considered in light of the goals of the civil justice system or at all.
[33] Justice Gillese provided some further guidance in Neuberger as to how the issue is to be approached. At para. 89, she wrote:
In my view, an applicant or moving party under rule 75.06 must adduce, or point to, some evidence which, if accepted, would call into question the validity of the testamentary instrument that is being propounded. If the applicant or moving party fails in that regard or if the propounder of the testamentary instrument successfully answers the challenge, then the application or motion should be dismissed. If, on the other hand, the applicant or moving party adduces or points to evidence that calls into question the validity of the testamentary instrument which the propounder does not successfully answer, the court would generally order that the testamentary instrument be proved. In determining the manner in which the instrument be proved, the court would have recourse to the powers under rule 75.06(3).
[34] Rule 75.06(3) to which Gillese J.A. refers lists the types of directions that the court may make if it decides to exercise its discretion to require proof of a will in solemn form. Before that happens though, the applicant must “adduce, or point to, some evidence which, if accepted, would call into question the validity” of the will or other testamentary instrument in issue. However, it is not enough that the applicant just adduces or points to something that could call the will into question. As noted by Gillese J.A., the proponent has the opportunity to answer the evidence adduced or pointed to by the applicant. It is only where the proponent of the will “does not successfully answer” the evidence adduced or pointed to by the applicant, that the court will give directions under Rule 75.06(3).
[35] While the tests are clearly and succinctly set out by the Court of Appeal, there remains much room for uncertainty in their application. What is the standard of proof at play? What does the applicant have to do to answer the minimal evidentiary threshold? Is it enough that the proponent denies the applicant’s evidence? In my view, it cannot be enough to just join issue. Issues beg for resolution. Need there be a “genuine issue requiring a trial?” That phrase, of course, is drawn from Rule 20.04 (2)(a) that governs summary judgment. Need a proponent show that he or she would be entitled to summary judgment in order to avoid proof in solemn form? That too cannot be right. At this preliminary stage, the issue is not whether the applicant has proven his or her case but whether he or she ought to be given tools, such as documentary discovery, that are ordinarily available to a litigant before he or she is subjected to a requirement to put a best foot forward on the merits. Normally, a litigant must just plead facts that support a cause of action to become entitled to use the full panoply of fact-finding tools provided by the Rules. In estates cases, more is required. Some evidentiary basis to proceed is required in order to address the specific policy concerns that are discussed above.
[36] Motions may be brought for summary judgment under Rule 20 in estates cases. Counsel for the applicant argues that Eric could have answered the request for directions with a motion for summary judgment. The decision of the Supreme Court of Canada that governs motions for summary judgment, Hryniak v Mauldin, 2014 SCC 7, at para. 70, provides for motions for directions as a component of the summary judgment process too. That process is quite analogous to Rule 75.06(3). So bringing a motion for summary judgment before directions are ordered under Rule 75.06(3) just begs the very same question of when will directions be appropriate in estates cases.
[37] Rule 75.06(3) provides:
On an application or motion for directions, the court may direct,
(a) the issues to be decided;
(b) who are parties, who is plaintiff and defendant and who is submitting rights to the court;
(c) who shall be served with the order for directions, and the method and times of service;
(d) procedures for bringing the matter before the court in a summary fashion, where appropriate;
(e) that the plaintiff file and serve a statement of claim (Form 75.7);
(f) that an estate trustee be appointed during litigation, and file such security as the court directs;
(g) such other procedures as are just.
[38] The rule provides the court with a tremendous breadth of input to shape the proceeding that goes forward. Normally, the identification of parties and issues in litigation is left solely to the parties. The other applicable processes are dictated by the Rules. But civil litigation cases generally are adversarial disputes among the parties. As noted by Justice Gillese, estates cases are more inquisitorial. The court plays an important role because the outcome binds the world and not just the parties. Moreover, the court always maintains its special responsibility to the testator who cannot be present to express his or her own wishes. Therefore, under Rule 75.6(3) the court exercises discretion as to the very structure of the case that will be heard and decided.
[39] The scope of the court’s discretion under Rule 75.06(3) helps to assess the sufficiency of an “answer” to the “minimal evidentiary threshold.” I cannot offer much desirable certainty in this case. But discretionary decisions are generally not certain of outcome by definition. In my view, the court ought to measure the evidence adduced by the applicant challenger against the evidence answered by the proponent of the will and assess what, if any, processes are required to resolve any conflicts that the court cannot fairly resolve on the record before it. The court will be guided in making directions, as always, by the primary dictate to fashion a process that provides a fair and just resolution of the civil dispute. A fair and just resolution process is one that is developed to meet the goals of efficiency, affordability, and proportionality that underpin all civil cases as directed by the Supreme Court of Canada in Hryniak.
[40] It must be borne in mind at all times that what is at issue is whether the court should exercise its discretion to require proof in solemn form. The applicant will not likely be able to prove the case on the merits. This is not summary judgment. The question is whether the applicant ought to be able to put the estate and the beneficiaries to the burden of proof, expense, and delay by requiring proof in solemn form and, if so, what process of proof in solemn form will best achieve that outcome, be consonant with the goals of the civil justice system, and recognize the particular concerns that are to be balanced in the estates litigation context.
Analysis
[41] In this case, Alan points to Eric’s physical proximity to their mother as her caregiver. He points to the opening of joint bank accounts by Eric and their mother. He points to a will executed by Mrs. Seepa when she was 87 years old that disinherited him and all the grandchildren in favour of Eric. He points to one conversation in which Mrs. Seepa might have said one thing that could be relevant to a capacity assessment. He says that she might have suffered dementia two years later. He also says that his mother understood and forgave his distance due to both of them suffering back ailments. Finally, he speculates that his mother might have been on pain killers for her back.
[42] From this evidence Alan raises issues of incapacity, undue influence, breach of fiduciary duty, and asks to set aside the transactions in which Mrs. Seepa put her property into joint tenancy. He wishes access to his mother’s medical and legal records to search for evidence to establish her incapacity and for evidence of transgressions by Eric.
[43] Eric answered with evidence describing his mother’s reasons for favouring him and disfavouring Alan. He provided unsworn letters from counsel that he found in his mother’s papers as he too does not have access to counsel’s files as yet. However, assuming that counsel will swear to the truth of her letters, they demonstrate to a large degree that counsel was keen to document both Mrs. Seepa’s capacity and the reasons for her wishes. Counsel’s letters call for annual review of Mrs Seepa’s testamentary intent and this answers any concern for timing of the final will. Moreover, it is clear form Eric’s affidavit that Alan failed to disclose the generous gifts that Mrs. Seepa made to her grandchildren before her death and the existence of some life insurance in which Alan was a beneficiary. Mrs. Seepa did not exclude her grandchildren as Alan suggested as she gave them gifts and they are the alternative beneficiaries. She left insurance for Alan.
[44] Alan’s counsel points out that the lawyers’ letters do not say expressly that the lawyer found that Mrs. Seepa had capacity. Her notes may say the contrary. Moreover she is not a capacity assessor in any event. The medical files may also shed light on the extent of Mrs. Seepa’s capacity, her back ailments, and medications. Alan’s evidence of back ailments does not create even a prima facie case to explain his failure to participate in caregiving for his mother, if not physically, by regular calls and input, and some minimal evidence of having a caring and sharing relationship with his mother. In my view, nothing in his evidence rebuts Eric’s evidence as supported by the lawyers’ letters which seem to answer any issue about Mrs. Seepa’s testamentary capacity and intent in excluding Alan.
[45] The goals of affordability and proportionality weigh heavily in this case. The amounts in issue are quite modest. Mrs.Seepa sold her house for about $650,000 and I presume that Alan does not challenge the gift to his son and therefore those to his nephews.[^1] This leaves him challenging the $250,000 that Eric used to buy his house and the remnant of approximately $250,000 that provided for Mrs. Seepa together with her pension income after she sold her house. The legal fees and accounting fees of a formal accounting process for several years of transactions alone will eat up the bulk of the funds in issue. But for one fact, I would have been inclined to either dismiss the motion for directions or, perhaps, confer with the parties to devise an abbreviated process, starting with an all-hands meeting with Mrs. Seepa’s lawyer to review her two will files with her and LawPro counsel (whose fees also have to be considered). One meeting could replace months of letters back and forth to agree on process, photocopying, delays, and then independent review of the lawyers’ files by both sides. If that process did not dispel all concerns or result in settlement, then a further case conference might have been valuable to discuss what medical review was available and practical. Once again, the inefficiency, cost, and delay of writing to doctors to try to obtain thick and often impenetrable files some months hence, after much toing and froing, would be a factor.
[46] The fact that I find most compelling in this case however, is that Eric consented to the relief sought. To be sure, I do not view the parties’ consent as binding upon the court. As noted previously, this is to some degree a court-driven inquisitorial, in rem process. The court’s discretion is exercised for all affected persons and with the testator’s intentions in mind. The parties are not the only people involved therefore and their consent cannot compel the court to exercise discretion.
[47] I expressed a concern to the parties in my initial endorsement and heard them on the issues. Counsel for Eric fairly recognized his consent while at the same time offering support for the court’s reluctance. Counsel for Eric drew the court’s attention to a negotiated term of the consent order under which Alan agrees to pay for the investigative steps and record production subject to a final assessment of costs by the court. Counsel advised the court that since the estate has no assets to fund investigations and Alan is willing to pay, Eric preferred to let Alan satisfy himself as to the righteousness of the will and joint tenancies, rather than incur significant costs to fight with him now.
[48] Eric’s position assuages the court’s concerns in this case. He is making an economically rational decision and one that minimizes fraternal ill will. Eric prefers to allow sunlight to shine on the evidence believing it will sanitize as it usually does. Those who argue against openness often find themselves the subject of dark inferences. While I am cognizant of the need to protect Mrs. Seepa’s wishes, I cannot prejudge what those wishes may have been. As noted above, there is always a risk of ambiguity in that the person with the greatest claim to an unequal benefit also often also has the greatest opportunity for abuse. While a full review is not very efficient, in this case, if Alan wants to pay the bills, it may well be that the estate will never have to take further steps. Eric is banking that the case is likely to end without much further involvement by him or the estate. Affordability and proportionality are both engaged. While the parties do not bind the court, in my view, their consent should be a very significant factor and should be departed from only where the parties failed to recognize or give sufficient heed to the goals of the civil justice system or for other good, articulable reasons. I am satisfied to support the parties’ agreement in this case.
Conclusion
[49] The Court of Appeal decided Neuberger two years into the culture shift heralded by Hryniak. The appellate courts require this court to always be mindful of the goals of the civil justice system so as to implement the law to achieve fair and just outcomes through processes that are efficient, affordable, and especially proportional in light of the facts and circumstances of each case. In my view, the practice under Rule 75.06(3) serves the interests of the parties well when directions are made on a bespoke basis to fit the measurements of the case. Judicial oversight through case conferences and case management techniques are available under Rules 75.06(3)(g) and 50.13 among others. The court should be very reluctant to consign estates and beneficiaries to intrusive, expansive, expensive, slow, standard form fishing expeditions that do not seem to be planned to achieve the goals of civil justice for the parties. But processes that show some thought to customize a process to the evidence so as to promote efficiency, affordability, and especially, proportionality, with use of a scalpel rather than a mallet, use of summary proceedings where possible, use of case management, mediation, and similar efforts to minimize the expense, delay, distress, and the overwhelming disruption caused by the process itself, are to be greatly encouraged.
F.L. Myers
Released: September 11, 2017
COURT FILE NO.: 05-50/17 ES
DATE: 201709011
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ALAN SEEPA Applicant
– and –
ERIC SEEPA Respondent
REASONS FOR JUDGMENT
F.L. Myers J.
Released: September 11, 2017
[^1]: Alan might have to challenge the gifts to the children if he says that Mrs. Seepa lacked capacity at an earlier date. Whether he has gotten that far in the analysis and would do this to his own son remains to be seen.