CITATION: Yeas v. Yeas, 2017 ONSC 7402 PEMBROKE COURT FILE NO.: CV-13-1156 DATE: 2017/12/12

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

DANIEL YEAS

W. Ormond Murphy for the Applicant

• and -

JOHN CARL YEAS, KEVIN YEAS, KAREN LAVIGNE, BRENDA LEE SPERBERG

M. Peter Sammon for the Respondents

HEARD at Pembroke: October 23, 24, 25, 30 and 31, 2017

REASONS FOR DECISION

KERSHMAN J.

Introduction

[1] John Yeas was a successful businessman who ran two businesses dealing with scrap and recycling. Shortly before his death, he and his wife Donna signed a domestic contract wherein he agreed to pay her a certain amount of money and transfer two parcels of property to her in exchange for releases from her.

[2] At about the same time, John executed new Powers of Attorney for personal care and management of property, naming his sons Kevin Yeas and John Carl Yeas, also known as Charlie Yeas.

[3] John executed a new will on June 13, 2013.

[4] Brenda Lee Sperberg, another of John’s children, is also a party to this matter.

[5] On April 16, 2014 the Honourable Justice Ray granted an order dealing with the issues to be tried and the parties to the proceedings.

[6] Paragraph 2(d) of the Order reads as follows:

The court orders that the issues to be tried and the parties to the proceedings be as follows: (d) Daniel Yeas affirms and John Carl Yeas, Kevin Yeas and Brenda Lee Sperberg deny that the alleged will was procured by undue influence and/or fraud.

[7] At the commencement of trial, Dan withdrew the allegation in paragraph 2(d) of the Order that the June 2013 will was procured by undue influence and/or fraud.

[8] The trial is proceeding on the issue of whether John had testamentary capacity to sign the will of June 13, 2013. If he did not, then his will of January 20, 1999 would be his last will and testament.

[9] The Court will use the first names of the parties to identify them. In the normal course the Court would identify the parties by their last names, however for ease of reference the Court will refer to them by their first names. The reference to first names is not intended to be a sign of disrespect.

Factual Background

1. Family

[10] John had a high school education. He was married to his first wife and had five children: Kevin Yeas (“Kevin”), John Carl Yeas, also known as Charlie Yeas (“Charlie”), Brenda Lee Sperberg (“Brenda”), Daniel Yeas (“Dan”), and Karen Lavigne (“Karen”).

[11] After his first marriage ended, John married Donna on July 10, 1971. John and Donna raised the five children together.

[12] John was the sole office director and shareholder of 671157 Ontario Inc., operating as Bee Line Disposal, and 665952 Ontario Inc., operating as Bee Line Auto Wreckers. When the business started in 1980, John, Donna, Kevin, Charlie and Dan all worked there. Both operating companies will be referred to as the “Companies” because both operated business activities out of the same location or yard.

[13] Donna was the office manager and bookkeeper for the Companies from close to inception until 2013.

[14] Both Kevin and Charlie worked for the Companies from 1980 until present.

[15] Brenda started working for the Companies in 2005 and remains there. In 2005, she started as a bookkeeper. As of 2013, she became and remains the office manager.

[16] Dan finished grade 9 and went to work for the Companies at the age of 16. He left in November 2001 to further his career in management at Tomlinson Services as a waste services coordinator until May 2012, when he and his son went to work in Fort McMurray. There, he worked for Ledcor as a heavy equipment operator until April 2013 when he was laid off.

[17] In May of 2011 John was taken to the hospital by Donna where he was diagnosed with a mild stroke. In November 2011, John was assessed by Dr. G. Thomas, a geriatric psychiatrist with the Renfrew County Geriatric Mental Health Outreach Program, in relation to his cognitive abilities. Dr. Thomas prepared a report saying that John suffered mild to moderate dementia and that he could not manage his personal affairs or his property. Dr. Thomas instructed that his power of attorney, Donna, act for John in those capacities.

[18] In or about early January 2012, John was assessed by his personal physician, Dr. Galley, who had been his doctor since 1989. Dr. Galley reported that John did have capacity to manage his personal affairs and property.

[19] John retained Mary Fraser, a Pembroke lawyer, to prepare powers of attorney for personal care and management of property in favour of Kevin and Charlie. Mary Fraser sent John to a roster capacity assessor, Mr. Leonard Burnstein, to determine his capacity to give and revoke powers of attorney and to manage his property. Mr. Burnstein provided written reports that John had the necessary capacity to revoke and provide new powers of attorney and to manage his property.

[20] On April 25, 2012 Donna brought an Application against Charlie, Kevin and John seeking to declare that the Powers of Attorney given by John to Kevin and Charlie dated February 29, 2012 for the management of property and personal care were null and void. She also sought a declaration that prior Powers of Attorney for property and personal care given to her were still in full force and effect.

2. Will of January 20, 1999

[21] John executed a last will and testament on January 20, 1999 in which he named Donna as his executrix and named Dan, Kevin and Charlie as his alternate executors.

[22] John left all of his estate to Donna, provided that she was alive.

[23] If Donna was not alive, then the assets of the estate go as follows:

1. 518 Villa Street, Pembroke, to Karen Lavigne;

2. 416 James Street, to Brenda Lee Moss (Sperberg);

3. 418 James Street and 590 McGee Street, Pembroke, to Brenda and Karen;

4. All shares and any corporations that he owned would be divided equally between the three sons, Kevin, Charlie and Dan, alive in equal shares per capita;

The balance of the estate would be paid to the Kevin, Charlie and Dan in equal shares per capita.

3. Domestic Contract

[24] After Donna brought her Application, discussions were held in an effort to resolve the matter. Resolution came in the form of an offer from John to equalize his assets with Donna by paying her $500,000 and transferring two properties to her.

[25] Donna counter-offered at $600,000 together with the transfer of the two properties. Donna also wanted to ensure that, as an officer and director of the Companies, she would not give up signing authority and execute a release until such time that the funds were exchanged and the properties were transferred to her.

[26] The parties agreed that the document would be called a “domestic contract”. Donna signed it January 31, 2013 and John signed on February 12, 2013. Both parties received independent legal advice and the appropriate certificates were signed.

[27] Subsequently thereto, Mary Fraser met John to discuss his estate planning, including the preparation of a will, as well as the restructuring of the Companies and how the $600,000 would be obtained to pay Donna.

[28] On April 19, 2013, Mary Fraser discussed John’s will with him and who his potential executors and beneficiaries were to be. The two of them discussed each of his five children and which ones would share in the will.

[29] John came into the office on June 4, 2013, at which time he discussed various matters with Mary Fraser including the restructuring of the Companies and the financing to pay out Donna. At the same time, Mary Fraser reviewed John’s draft will with him, which he approved. It was agreed that he would sign the will on a later date when it was on will paper.

4. Restructuring of the Business

[30] In order to pay Donna the $600,000, John had to borrow the money. It was agreed that he would do so by way of an estate freeze and rollover under section 85 of the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.), whereby John would receive preference shares and Kevin and Charlie would receive common shares. In order to reduce the amount of tax payable, John was taking the loan personally with the Companies acting as guarantors. Kevin and Charlie also guaranteed the debt.

[31] The new loan documents were signed by John on June 4, 2013 when he came in to review the will instructions that he had provided on April 19, 2013. The loan from the bank was eventually funded.

5. John in Hospital and the Will of June 13, 2013

[32] On June 8, 2013, John had a stroke. He was taken to the Pembroke Hospital and was subsequently transferred by air ambulance to the Ottawa Heart Institute (“Heart Institute”). On June 9, 2013, John had another stroke.

[33] Once Mary Fraser heard that John had had a stroke, she wanted to give him the opportunity to sign his will. She was unable to go to the Heart Institute because she was the piano accompanist to her daughters who were in the finals in a music recital in Peterborough, Ontario. She provided written instructions to her law partner and husband, Michael March, as to the execution of the will. Michael March attended at the Heart Institute on June 13, 2013 with Laurie Campbell, a longtime staff member of the firm, where he had the will signed.

[34] On June 13, 2013 John executed his last will and testament at the Heart Institute with Michael March and Laurie Campbell as the witnesses.

[35] The will named Kevin and Charlie as the executors. In addition the will also divided the residue of the estate between Kevin and Charlie in equal shares per stirpes. No bequests were left to Donna, Dan, Brenda or Karen.

[36] Subsequent to the signing of the will, Michael March made notes concerning the circumstances of the signing of the will.

[37] John died on August 8, 2013.

[38] Dan objected to the probate of the June 13, 2013 will, arguing that John did not have testamentary capacity to sign it.

Issues

[39] The issues before the Court are as follows:

1. Did John have testamentary capacity when he gave instructions for the will on April 19, 2013?

2. Did John have testamentary capacity when he reviewed the draft will on June 4, 2013?

3. Were the contents of the June 4, 2013 draft will the same as the will signed on June 13, 2013?

4. Did John have testamentary capacity when he signed the will on June 13, 2013?

Evidence

Evidence of Mary Fraser

Examination-in-Chief

[40] Mary Fraser was called to the Bar in Ontario in 1990. She practiced in Toronto for 3 to 4 years, and then moved to Ottawa for one year. She moved to Pembroke to practice with her father in 1992-1993. She was in partnership with her father and her husband Michael March. Her father passed away in 2008. She then practiced with her husband Michael March until 2016 when he was appointed to the Ontario Court of Justice.

[41] Since moving to Pembroke, 50% to 60% of Ms. Fraser’s practice consists of wills, estate administration and estate litigation. The balance of her practice is real estate and family law.

[42] Ms. Fraser prepared a timetable of what occurred on this file. The following is her evidence in relation to the timetable.

[43] On January 30, 2012, Ms. Fraser met with John, Kevin and Charlie, having been referred by another lawyer. She met separately with John to get a history of the purpose of the meeting. Ms. Fraser testified that John had concerns about steps which had been taken by Donna in relation to the Companies. He claimed that Donna, who was employed as a bookkeeper and administrator in the Companies, was preventing him from participating in the Companies.

[44] He was also seeking advice from Ms. Fraser on how to deal with Donna attempting to take over management of John’s property by using the Power of Attorney.

[45] According to her evidence Ms. Fraser got the impression that there was a fair amount of conflict in the marriage. John said that Donna was excluding other family members in an attempt to take over the running of the Companies. In order to satisfy herself that he knew what he was talking about, Ms. Fraser asked John to identify all of the family members to understand the family dynamics.

[46] At the meeting John told Ms. Fraser that he had previously had a stroke and a geriatric assessment had been done.

[47] John disputed his capacity issues and had spoken to Dr. Peter Galley, who had been John’s physician since 1989.

[48] Ms. Fraser asked for a letter from Dr. Galley as to John’s capacity. She testified that if the opinion was supportive of John’s capacity, then it would be necessary to obtain a Capacity Assessment to dispute the position taken by Donna with respect to the Powers of Attorney.

[49] Ms. Fraser received a letter from Dr. Galley dated January 11, 2012 which was addressed to H.J. Stewart Lavigueur, a lawyer in Eganville. It stated that John had been assessed by the Renfrew County Mental Health Outreach Program on November 10, 2011 by Dr. Gordon Thomas, who concluded that John “was suffering from a medical condition which impairs his insight and judgment in terms of personal care and financial management.”

[50] Dr. Galley goes further on to say that based on testing he performed, and notwithstanding John’s past medical problems and the report of Dr. Thomas, he was of the opinion that “Mr. Yeas appears to be mentally competent.”

[51] After she received Dr. Galley’s letter, Ms. Fraser contacted Mr. Leonard Burnstein from the capacity assessment roster. Mr. Burnstein conducted the capacity assessment and concluded on February 24 that:

John Yeas meets the minimum standards set out in legislation to grant or revoke Power of Attorney. As the threshold to grant or revoke a Power of Attorney is lower than that to manage finances, any possible concerns about what might be construed as extremely minor symptoms of dementia are not significant in this assessment. It is my opinion that John Yeas is capable to grant or revoke a Power of Attorney.

[52] On March 2, 2012, Mr. Burnstein prepared a report on John Yeas’ capacity to manage property. He concluded as follows:

John Yeas meets the minimum standards set out in legislation to manage property. He can process and understand information regarding his financial situation, both business and personal, at a level sufficient to manage property. He can appreciate the consequences of his financial decisions, lack of decision, or lack of having another person whom he trusts appointed to manage his property for him. Any possible concerns about what might be construed as extremely minor symptoms of dementia are not significant in this assessment. It is my opinion that John Yeas is capable to manage property.

[53] Based on the Burnstein reports, Ms. Fraser prepared two Powers of Attorney, which John executed on February 29, 2012, appointing Kevin and Charlie as his Powers of Attorney for both management property and personal care.

[54] An Application Record was issued by Donna on April 21, 2012 claiming that John did not have capacity to execute new Powers of Attorney and seeking to reinstate herself on John’s Power of Attorney. Donna swore an Affidavit on May 31, 2012, which formed part of the Application Record, and it was served on John, Kevin and Charlie on July 22, 2012.

[55] Ms. Fraser testified that she had further meetings with John on March 8, 23, June 15 and 21, 2012, to discuss the Powers of Attorney as well as to discuss the draft Application to revoke the Powers of Attorney in favour of Kevin and Charlie.

[56] Ms. Fraser contacted Donna’s lawyer, Robert Sheppard, and discussed a potential solution to the Application which would involve a buyout by John of Donna’s interest in Companies.

[57] Ms. Fraser told John that she had discussed the concerns with Mr. Sheppard and wanted to have a meeting of all parties in order to address outstanding issues.

[58] On August 14, 2012 Ms. Fraser received a letter from Mr. Sheppard confirming that the clients were talking about a possible purchase of Donna’s interest in the business. In order to arrange the purchase, it was necessary to obtain financial information about the businesses which Donna held by virtue of her being the bookkeeper and/or administrator.

[59] Ms. Fraser said that in order to buy out Donna’s interest, valuations would be required of various assets. According to her evidence, John wanted to continue the business with Kevin and Charlie even after the relationship between him and Donna had ended. According to Ms. Fraser, John advised that Kevin and Charlie had been involved in the business from the outset and that the three of them wanted to keep it going.

[60] Ms. Fraser testified that John had a high school education and that he had told her that he had built the Companies from the ground floor and that they were going to be his legacy. He wanted Kevin and Charlie to continue the businesses even after he was gone.

[61] On August 27, 2012 Ms. Fraser wrote to Mr. Donald Rosien, the accountant, dealing with the financial disclosure needed for possible purchase of Donna’s equitable interest in the Companies. The letter included a letter of direction signed by Donna in order to determine valuation of the Companies.

[62] On October 2, 2012 a meeting was held with Ms. Fraser, Mr. Rosien, John, Kevin and Charlie to get an overview of the value of the Companies.

[63] On November 4, 2012 a written offer was made by John to Donna through counsel to purchase her equitable interest for the sum of $500,000 and to transfer two properties, being the James Street property and the Villa Street property (“Properties”). The payment of these monies and the transfer of these properties would constitute an equalization of John and Donna’s assets. In addition, the letter indicated that John would move out of the matrimonial home.

[64] On November 14, 2012 Ms. Fraser had another meeting with John.

[65] On November 23, 2012 Mr. Sheppard forwarded Donna’s counter proposal offering to settle on the basis of her receiving $600,000 plus the transfer of the Properties, as well as her obtaining releases for equalization. In exchange she would resign as an officer and director of the Companies and remove her name as a signing officer at the bank.

[66] On November 27, 2012 John accepted Donna’s counter proposal at a meeting held with Ms. Fraser, Kevin and Charlie.

[67] On December 5, 2012 Ms. Fraser prepared and forwarded a draft separation agreement to Mr. Sheppard.

[68] Ms. Fraser believes that she received a call from Mr. Sheppard who indicated that Donna was upset that the document was called a separation agreement. She did not want it to be called a separation agreement. She was prepared to let John stay in the matrimonial home and she wanted changes to the documents so that it would not be a separation agreement.

[69] Ms. Fraser prepared a revised agreement with the term “separation” being removed and with other changes to reflect Donna’s request. The document was a domestic agreement under the Family Law Act and therefore she called it a domestic contract.

[70] Ms. Fraser met with John on January 7, 2013 to review the document. She testified that John was satisfied with the document being called a domestic contract as opposed to a separation agreement.

[71] On January 7, 2013 the domestic contract was forwarded to Mr. Sheppard.

[72] On January 23, 2013 Ms. Fraser received correspondence from Mr. Sheppard wherein he proposed further amendments based on tax issues and that any releases and Donna’s resigning as an officer, director and signing officer of the Companies would only be provided once the funds had been received and the properties were transferred.

[73] On January 24, 2013 Ms. Fraser forwarded the revised domestic contract to Mr. Sheppard.

[74] On January 31, 2013 Donna executed the domestic contract.

[75] On February 7, 2013 the domestic contract with certain amendments was forwarded from Mr. Sheppard to Ms. Fraser.

[76] John personally executed the domestic contract on February 12, 2013.

[77] Having seen him 18-19 times over the course of the file, Ms. Fraser stated that there was never a concern with respect to John’s capacity to enter into the domestic contract and the collateral documents, including the transfers. The transfers of the properties and the domestic contract were all signed by John personally and not by Power of Attorney.

[78] Once the funds were transferred to Donna together with the properties, she resigned as officer and director of the Companies and as signing officer at the bank. The Application was dismissed by way of consent and draft order.

[79] The Court notes the consent to the dismissal of the Application contains the following paragraph:

The Order being consented to does not affect the rights of any person under disability.

[80] Counsel for Donna and John both signed the consent.

[81] In order to finance the domestic contract and the obligations thereunder, John was required to borrow money. He went to TD Canada Trust (“TD”), where he had been banking for a period of time, and dealt with Steele Campbell.

[82] TD obtained appraisals as to the value of the Companies and their assets and provided instructions to Ms. Fraser.

[83] The financing was by way of a mortgage of $300,000 on the real estate together with a line of credit of $300,000 with security over the Companies’ assets, as well as a personal guarantee by John. The Companies were to be the primary debtors.

[84] On April 19, 2013 Ms. Fraser met with John concerning the financing as well as his estate planning and a new will. Ms. Fraser testified that in order for this transaction to go through, proper estate planning and will planning were required to ensure that if something were to happen to John in the future, there would be no loose ends.

[85] At this meeting on April 19, Ms. Fraser spoke to John about estate planning and succession planning as she was concerned that the proposed financing as structured would create negative tax implications for John which potentially could be avoided. The original transaction was structured with John drawing $600,000 from the Companies to pay Donna which would result in costly tax implications for him.

[86] Ms. Fraser was aware that, based on John’s advanced age, other people were going to have to pay off the debt. According to Ms. Fraser, John said that because of the size of the debt – $600,000 – he was relying on Kevin and Charlie to pay off the obligation when he was no longer able to do so. She spoke with John about his estate plan and obtained permission from John for her to meet with Mr. Rosien, the accountant, to discuss the tax issues.

[87] In addition, on April 19, 2013 while together with John alone, she took preliminary instructions for the preparation of his will and spoke with John about what he wanted to do with the Companies. According to Ms. Fraser, John was very specific that he wanted the Companies to continue to run even after he retired, with Kevin and Charlie owning the Companies. His instructions were that Kevin and Charlie were to be the executors of his estate and his beneficiaries.

[88] At the same time, Ms. Fraser reviewed John’s assets with him. He indicated he also owned 30 acres in Stafford but was not sure whether he owned it personally or by a corporation. He also indicated that he owned an old school behind Brum’s Dairy which he believed was in the name of one of the Companies.

[89] John discussed each of his children individually with Ms. Fraser and whether he would be providing for them in the will or not. He specifically spoke to Ms. Fraser about Karen, Brenda, Dan, Kevin and Charlie.

[90] He said that Brenda was working for the Companies and that she would be provided for.

[91] John said that Karen was a nurse and that she and her husband were doing well and were secure.

[92] As for Dan, John said that Dan had been there at the beginning but had then left the Companies about 12 years before to go to work for Tomlinson. According to him, Dan did not come back to work for the Companies.

[93] John advised Ms. Fraser that he was concerned that Dan had been in touch with Donna about the business. John also felt that Dan was doing well on his own.

[94] As for Kevin and Charlie, John said that they had been partners from the beginning. According to Ms. Fraser, the viability of the Companies was dependent upon the Companies being able to continue and since Kevin and Charlie were operating them that they should be the beneficiaries.

[95] Ms. Fraser testified that John discussed dividing his assets equally amongst his five children but decided against it. What assets he had left after the domestic contract with Donna were basically the Companies’ assets, which for the most part were built by Kevin, Charlie and himself. It was his wish that Kevin and Charlie receive the Companies’ assets and that they not be shared with others.

[96] Ms. Fraser testified that John: 1) was not a highly educated individual; 2) was consistent in his instructions to her; 3) was consistent about what assets he owned; 4) was consistent about who was and who was not to get his estate; 5) understood his legal obligations to Donna; 6) recognized the potential equitable claims that Kevin and Charlie might have to the family business; and 7) was a person who knew his own mind in instructing her of how he wanted things divided.

[97] On April 23, 2013, Ms. Fraser sent a letter to Mr. Rosien concerning the financing and the need to discuss the corporate restructuring.

[98] On April 24, 2013 she had a meeting with John, Kevin and Charlie to discuss the financing of the company and how it would happen. They also discussed the sale of the school property behind the Brum’s Dairy.

[99] On May 15, 2013 there was a meeting with Ms. Fraser, Mr. Rosien, John, Kevin and Charlie in which she gave an update about the situation related to Donna and asked about the tax implications of the $600,000 being borrowed by the Companies.

[100] Her evidence was that to have a tax-free rollover there would have to have been a separation agreement – not a domestic contract. This raised a red flag to Ms. Fraser and she wanted to ensure the transaction was structured to avoid a tax problem.

[101] She said that Mr. Rosien would do some research about the situation to see if the problem could be solved. They discussed other alternatives about how to get the financing without incurring negative tax implications. As it turned out, the solution would be for John to take the loan personally and have it guaranteed by the Companies. Ms. Fraser spoke to TD and they were satisfied that the transaction could work in that manner.

[102] At the May 15, 2013 meeting they also discussed moving forward with respect to the transfer of the Companies and the estates freezes.

[103] According to Ms. Fraser, Kevin and Charlie were prepared to back the plan, including payment of the monies to Donna and continuing the business.

[104] John approved of the estate freeze. He wanted to see if the school property was in fact owned by him personally or by one of the Companies.

[105] On May 15, 2013 Ms. Fraser met with John to sign the documents concerning the financing. She was not sure if this was before or after the Rosien meeting on the same date.

[106] On May 24, 2013, Ms. Fraser met with John, Kevin and Charlie and was advised that the school property was owned by one of the Companies and therefore this would not be a consideration in the tax strategy moving forward.

[107] On May 24, 2013, Ms. Fraser checked to see if TD could restructure the financing so that the loans would be personal to John and guaranteed by the Companies. As additional security, Kevin and Charlie were offered as guarantors.

[108] She received instructions from John that he take the loan personally with the Companies being the guarantors. She asked Kevin and Charlie if they would guarantee the debt and they agreed.

[109] On May 27, 2013 Steele Campbell at TD indicated that the restructured transaction would be viable with John taking the loan and the Companies guaranteeing the loan, without Kevin and Charlie as guarantors.

[110] On June 4, 2013 new loan documents were signed by John.

[111] At the same time on June 4, 2013 John discussed that he wanted to move forward with the corporate restructuring so that Donna could get paid.

[112] At the same meeting Ms. Fraser and John discussed the documents that would be required for the financing.

[113] At the June 4, 2013 meeting, a draft will which had been prepared by Ms. Fraser was reviewed with John. The will was a two-page document that was prepared on plain paper as opposed to will paper.

[114] Ms. Fraser confirmed that the will was consistent with John’s wishes that Kevin and Charlie be made the executors and beneficiaries of his estate. Ms. Fraser had no doubts that the will conformed to his instructions because she reviewed the draft with him on June 4, 2013 and that draft was consistent with his instructions and overall succession plan.

[115] Mary Fraser’s evidence was that the will prepared, based on the April 19, 2013 instructions, was the will that she reviewed with John on June 4, 2013. John was satisfied with the June 4, 2013 draft will.

[116] On June 10, 2013 Ms. Fraser learned that John had had a stroke over the weekend. Charlie had come to her office because of Donna not authorizing anyone to receive information from the doctors or the nurses. Ms. Fraser sent a letter by fax to the Heart Institute enclosing notarized copies of the powers of attorney for personal care and for management of property, with a copy being given to Charlie to take to the hospital.

[117] Once Ms. Fraser found out that John had a stroke, she testified that if there was an opportunity to have the will signed, John should have the opportunity to sign it. Any issues that arose therefrom could be addressed in other ways.

[118] As she was scheduled to be in Peterborough for approximately three days for a music recital as a piano accompanist for her children, Ms. Fraser was unable to meet with John to get the will signed. She spoke with her husband and law partner, Michael March, about getting the will signed. She wrote out two pages of instructions for him to satisfy himself that John appeared to have capacity and to provide him with an opportunity to sign the will.

[119] She said that she gave him the written instructions and he went to the Heart Institute with Laurie Campbell from the office to get it signed. She said that it was important that Mr. March needed to assure himself that John was aware of the time and place of where he was and able to recall whether he gave instructions to Ms. Fraser.

[120] She provided the will in two different formats:

1. The first being where John could sign the will; and,

2. The second being where John could place an “X” if he was unable to sign the will, due to physical paralysis because of the stroke.

[121] Ms. Fraser had no further contact with John.

Cross-Examination of Mary Fraser

[122] On cross-examination Ms. Fraser acknowledged that she reviewed the draft will with John on June 4, 2013 in her office. She had the draft will prepared and sat with him and reviewed the terms of it with him and what it said. They shared a copy of the will at a round table. She went over it with him paragraph by paragraph.

[123] Ms. Fraser testified that she had no concerns about his competency or his abilities in relation to the estate planning, the will and the corporate reorganization.

[124] She said that John understood that the purpose of the estate freeze was to reduce the amount of tax that would be paid.

[125] Ms. Fraser was a shown a copy of the hospital notes, one of which is dated June 11, 2013. It appears to be written by a social worker, L. Clement, and reads:

Spoke to patient’s son, Charlie, re: goal for family meeting tomorrow morning at 7:00 a.m., son is aware that patient not capable of signing will at this time – he will advise patient’s lawyer. Support provided.

[126] Ms. Fraser testified that she was not prepared to rely on the opinion of a social worker as to whether John had capacity to execute the will. She wanted to give him the opportunity to sign his will.

[127] Ms. Fraser says that she was trying to satisfy herself as to whether John could meet to execute the will. She did not ask Charlie to see if John had testamentary capacity because she felt that Charlie could not have made that determination, particularly in relation to the test for testamentary capacity.

[128] She testified that John had testamentary capacity both at the time that he made the will in April 2013 and approved of it on June 4, 2013. She felt that John should be given the opportunity to sign the will if he had capacity.

[129] Her view and her understanding of the law was that if Michael March was able to satisfy himself that John was aware of having given the instructions and acknowledged that those instructions were what he wanted, and as long as John had sufficient understanding that those instructions were incorporated into the will, John was capable of executing the will.

[130] Ms. Fraser was asked whether a capacity assessment was done after the will was executed. She said that she never considered having it done because she was satisfied that John had capacity at the time that he gave instructions. Furthermore, a capacity assessment any time after execution of the will would not have served a productive purpose because the will had already been signed.

[131] She also stated that she did not ask Mr. March to enquire at the hospital about whether John had capacity.

Re-Examination of Mary Fraser

[132] On re-examination, Ms. Fraser confirmed that she had never made any inquiries or had anyone make any inquiries on her behalf about John’s capacity. She felt there was no time or ability to determine whether he had capacity and furthermore, she was not aware of the qualifications of the person who might provide that advice. She testified that she did not know whether the person would truly understand the test and that, under the circumstances, it would be detrimental in that the person providing the assessment would provide information based on an erroneous understanding of the test.

Evidence of Donna

Examination-in-Chief

[133] Donna Yeas is about 66 years old and is John’s widow. They were married in 1971. John had been married previously and had five children from his previous marriage. When John and Donna married, the children ranged in ages 4 to 9. The children lived with John and Donna and referred to Donna as their Mother.

[134] Donna did administration and bookkeeping for the Companies and was on site most of the time, while John worked off site most of the time.

[135] In May 2011 John became ill. Donna took him to the hospital where he was diagnosed with a mild stroke. He was kept in the intensive care unit for three days. After his stroke he was in and out of hospital on a regular basis to deal with various matters including problems with his kidneys.

[136] Donna testified that after the May 2011 stroke, John could not remember things. He had rash judgment. For example, she testified that he saw a piece of equipment called a zoom boom and called the vendor and bought it. She said the Companies did not need it and it was sent back. It cost them about $6,000 in legal fees to deal with the issue.

[137] Donna testified that John’s driver’s license was taken away from him. He had received a letter from the Ministry of Transport saying that he would not get his license back until he had completed a number of forms. She said that John did not stop driving. She nagged him constantly about his continuing to drive. He would stop for short periods of time and let someone else drive him. Then he would start driving again.

[138] At one point Donna reported him to the police based on advice she received from her lawyer. John was stopped by the police.

[139] In late 2011, John was examined by Dr. Thomas. After seeing John on November 10, 2011, Dr. Thomas prepared a report dated December 1, 2011. The purpose of the referral was the assessment of cognition. Included in the report was the Doctor’s impression of John. He said:

This 76 year old gentleman presents with a mild to moderate dementia and decline in overall functioning. He is highly impulsive, displaying poor judgment and moderate loss of functioning. His formal cognitive testing shows a milder level of impairment that is suggested by his overall function. He has symptoms that suggest a depression may also be in complicating his presentation.

[140] In relation to the Companies’ bank accounts, Donna said that she went to the TD Bank and produced the letter from Dr. Thomas that John’s Power of Attorney should be activated and John should no longer have signing authority.

[141] Donna testified that in November or December 2011 she activated the Power of Attorney in relation to the corporate accounts only at the TD Bank in Pembroke and not John’s personal accounts. The Court notes that this meant that John still had the right to sign on his personal accounts and that Donna would not be exercising the Power of Attorney for his personal accounts.

[142] The Court finds this evidence to be very odd. The Court finds that Donna only wanting to be Power of Attorney over the corporate accounts and not John’s personal account was an indication that she was not interested in his personal finances, only the Companies’. Her actions indicate that she was far more concerned in the well-being of the Companies rather than John’s affairs. If she was really concerned about John’s mental capacity, she should have actively become Power of Attorney on his personal accounts as well.

[143] According to Donna, the bank did not change the signing authority on John’s personal account, saying that it was okay for John continue to use it. The Court has a very difficult time accepting this testimony.

[144] Donna testified that she was aware of the capacity assessment by Mr. Burnstein. She said that Mr. Sheppard wanted to go to court to say that John did not have capacity to change his Powers of Attorney from Donna to Kevin and Charlie.

[145] Donna testified said that the matter went to court, but did not say when. She said that it was postponed so many times that the Court system just dropped it. The Court finds this testimony difficult to believe, particularly in light of the fact that the parties signed a consent and obtained an Order dismissing the Application. The Court does not accept her evidence on that point.

[146] At some point in time, Mr. Sheppard spoke with Ms. Fraser about buying Donna out of the Companies and negotiations started with a settlement eventually being reached. The settlement was embodied in the domestic contract signed by her on January 31, 2013.

[147] On June 8, 2013, John had not been feeling well and Donna wanted to take him to the hospital. She called an ambulance which took him to the Pembroke Hospital. He was then transferred by air ambulance to the Ottawa Heart Institute.

[148] On June 9, 2013, Donna went to the hospital with Dan and his wife around 1:00 a.m. The four other children arrived around 1:30 a.m.

[149] She testified that she saw John that night and that he was not coherent. She did not talk to him. She said the nurse told the other children they could not see John because he was too ill. She said that she did not forbid the other children from seeing John.

[150] Donna left the Heart Institute at about 3:00 a.m. on June 9, 2017. She got home around 5:00 a.m. and returned to the Heart Institute at about 1:00 p.m. on the same day. She said that John was too sick and that no one could visit him so they went home. At 8:00 p.m. the doctor said that John had had a severe stroke and that he was paralyzed on the left side and that she should come back. She came back around 11:00 p.m. on June 9, 2013. She stayed at the hospital overnight and left on the Monday morning, June 10, 2013 around 8:00 a.m. She saw John before she left the hospital. She said that John did not know that she was there. There was a nurse in the room at all times because John was in the ICU.

[151] A family meeting was held on June 12, 2013 at 7:00 am with the doctor, the social worker, nurses, Donna, Dan, Kevin and Charlie. The doctor said that John was very ill and he was not sure if he would live. The doctor wanted to know if there were any special instructions concerning resuscitation and funeral arrangements. Donna advised the doctor that there would be no resuscitation. The Court notes that Donna was not the Power of Attorney at the time and had no authority to provide those instructions. That was the responsibility of Kevin and Charlie as his Powers of Attorney.

[152] She states that she did not see John that morning and did not see him until the Friday, June 14, 2013, when she said that John could not talk much. The Court notes that this differs from her previous testimony, where she said that John was not able to speak at all.

[153] Donna testified that she was not sure if John recognized her. She assumed that he knew who she was. He never addressed her by name. The Court finds that not addressing a person by name does not have any bearing on whether someone knows who someone is. She said that he had no sensible conversation with her. The Court notes that if a person is medicated and weak, they may not necessarily be able to have a conversation with someone.

[154] She said that when they did communicate she could not make sense of what he was saying.

[155] According to Donna there was an incident where she went to see John at some point in time and he told her that he had been walking the halls. The nurse said that was not true because he could not stand up. Another time, he told Donna that he had taken her to the Timberline Snow Mobile Club in Pembroke at a time when he was in the hospital, which never happened.

[156] No evidence or context were given as to when these incidents occurred. The Court notes that John was in hospital from June 8, 2013 until he passed away on August 8, 2013.

Cross-Examination of Donna

[157] Donna testified that after June 8, 2013 when John went into the Heart Institute he was not capable of making decisions for himself. No evidence was provided to support this assertion. The Court finds that this was only Donna’s opinion as a lay person.

[158] She acknowledged that she had no discussion with John about a do-not-resuscitate order and that she did not advise the Heart Institute of who the Powers of Attorney were.

[159] Donna was surprised to find out that an assessment had been done at the Heart Institute on June 10, 2013 and that John was found to be competent to make decisions. She said she was there on June 10, 2013 and that he was not conscious and didn’t recognize her. She left on June 10 at 8:30 a.m.

[160] The Court notes that Donna did not see John from June 10 at 8:30 a.m. until June 14, 2013.

[161] A hospital record was made on June 13, 2013 stating that John was confused but he was competent to make decisions. This was the same date that he signed the new will. The note also indicated that John told staff that Charlie was his Power of Attorney, which the Heart Institute needed to be clarified.

Evidence of Donald Rosien

[162] Donald Rosien, a Chartered Accountant for over 30 years, practices in Pembroke, Ontario and was the accountant for the Companies.

[163] His evidence is that between May and June of 2013 on at least one or two occasions, he met with John, Charlie, Kevin and Mary Fraser with respect to restructuring the Companies. They also discussed a domestic contract between John and Donna as well as John’s interest in transferring control of the Companies to Kevin and Charlie.

[164] Mr. Rosien received instructions about the restructuring of the Companies and was told that the common shares would go to Kevin and Charlie by way of an estate freeze.

[165] Mr. Rosien testified that he had no concerns in relation to John’s competency. He said that there was no indication that John did not understand what was being discussed. He did say that John had been very vocal at the meetings.

[166] On cross-examination, when asked about why John was so vocal, Mr. Rosien testified that he was vocal about the matrimonial settlement and was not happy with it, because of the amount being paid as well as the amount of tax to be paid. Once John was advised that the transaction could be structured in another format to reduce the amount of tax payable, he was more comfortable with the transaction.

[167] On cross-examination, Mr. Rosien testified that John wanted Kevin and Charlie to run the Companies and take over his shares.

Evidence of Michael March

Examination-in-Chief

[168] At the time of John’s death, Michael March was a practicing member of the bar and had a partnership with his father-in-law, Jim Fraser, and Mary Fraser. He had been called to the bar in 1992 and moved to Pembroke in or about 1995. For the first three years of his practice he did exclusively civil litigation. Thereafter his primary practice was criminal defence work. He was appointed a judge of the Ontario Court of Justice on August 30, 2016. Prior to that, he had been a member of the bar for almost 24 years.

[169] Mr. March testified that he may have acted for John related to a charge of driving a vehicle while suspended. He did not remember if he had met him at a 10 to 15 minute meet-and-greet conversation or if it was a formal meeting. He testified that when he was at the hospital he recognized John from his meetings in the office.

[170] He testified that the situation to get John’s will signed had become urgent because John had a stroke and Ms. Fraser would not attend to the Heart Institute to have the will signed because she and their two children were going to a provincial music final in Peterborough, Ontario where she was their piano accompanist.

[171] He testified that Ms. Fraser gave him written instructions to have the will signed and that he may also have received some oral instructions from her.

[172] Mr. March was not sure what day of the week that he went to the hospital. He said he probably went back to his office after court and spoke to his wife personally or over the phone.

[173] Mr. March’s evidence is that he picked up Laurie Campbell, a longtime staff member, in Renfrew to go to the Heart Institute to witness the will. When they got there he found out which room John was in and went to the floor. It was Charlie who recognized and greeted him. Charlie guided Mr. March into the room where John was receiving treatment. Charlie introduced John to Mr. March. In the room a nurse was administering treatment to John. John had an oxygen mask on. Mr. March asked the nurse if John was well enough to speak with him and she said, “Yes”.

[174] Mr. March asked Charlie to leave the room while he spoke with John. According to Mr. March, it appeared as if there were approximately 6 to 8 family members in the waiting room.

[175] He told John that he had his last will and testament in hand and wanted to review it with him. John was content with that.

[176] Mr. March reviewed each of the provisions of the will with John.

[177] In the instructions provided by Ms. Fraser it said, “Time and Place”. Mr. March asked John if he knew where he was. He said that he was at the Heart Institute. Mr. March asked John what date it was, and John said it was June 11, 2013. It was actually June 13, 2013. Mr. March said that John was able to say the word “2013”. Mr. March testified that the day of the month was the only thing about which John did not give the proper information, but otherwise he understood everything else.

[178] Since he had an oxygen mask on, John had to take it off and put it on between questions and responses, including the response of June 11, 2013. When asked a question by Mr. March, John took off his own hospital mask and answered the question in an intelligent fashion. At one question asked by Mr. March, John nodded his head to indicate yes.

[179] Mr. March said that when explaining the will to John he paraphrased the clauses as to what they meant because they were in legalese. He told John that any previous wills were no longer valid. He drew John’s attention to the fact that Kevin and Charlie were to be the executors and the beneficiaries. Mr. March said that John understood that Kevin and Charlie would be the executors and the beneficiaries.

[180] Mr. March also said that John confirmed that he wanted the will to be that way and that he was very definite on this point.

[181] Mr. March said that he looked John in the eye and confirmed that this was what he wanted. Mr. March said that John both said, “Yes” and nodded his head. He asked the question, “Are you content with the will as such?” and the answer was “Yes”.

[182] Mr. March testified that even though John was ill, he was still able to sign the will. The will was either signed on the patient table or Mr. March held it up while it was signed. John initialed the first page of the will and signed the second page.

[183] Ms. Fraser asked Mr. March to confirm with John that he still wanted to proceed with the financing of the Companies in the manner arranged by Mary Fraser. Mr. March said that John confirmed this and also knew who Mary Fraser was.

[184] After the meeting there was minimal conversation with family members, except to say goodbye and leave. No family members approached Mr. March after the will was signed. Mr. March testified that they were with John for approximately 20 to 30 minutes.

[185] After getting the will signed and witnessed, he and Ms. Campbell left the hospital and he dropped Ms. Campbell off back to her home in Renfrew. Mr. March made notes that day of his visit.

Cross-Examination of Michael March

[186] Mr. March acknowledged that this was the only deathbed will that he had ever witnessed. He said that he was dependent on Ms. Fraser for instructions on how to properly have the will executed. He said his wife’s instructions were specific and he followed those instructions and did not deviate from them.

[187] Mr. March was asked why, since there was a nurse in the room, he did not ask the nurse if it was okay have the will signed. Mr. March said that it was a privacy issue.

[188] According to Mr. March, most of John’s answers made sense. He did not ask questions which required long answers because he said John was in distress and had an oxygen mask on and he wanted to keep the answers to a minimum and avoid discomfort.

[189] Michael March confirmed that John never questioned any paragraph of the will. The Court notes, however, that John had already reviewed it with Mary Fraser on June 4, 2013.

Evidence of Dan

[190] Dan Yeas is 58 years of age. He is the fourth child of John Yeas and has a Grade 9 education. He started to work for the Companies at the age of 16 when he quit school around 1981, with Kevin, Charlie and John. Dan left the business in November 2001 because he wanted to further his career in management. He obtained a job at Tomlinson Services as a waste services coordinator. He did not advise John that he had applied for the job until after he got it. According to Dan he did not speak to his father after he left in November 2001 until May 2002. After May 2002, Dan said that it was just like the “good old days”. He and John would talk, go for coffee, and get together for celebrations and holidays.

[191] When he worked for Tomlinson, Dan would come to the Companies’ yard and visit on days when he was not working. He also said that he worked at the Companies on Saturdays. The Court notes that there was no evidence as to whether he got paid any monies from the Companies during the time he was working for Tomlinson.

[192] After he left Tomlinson, Dan went with his son to work in Fort McMurray operating heavy equipment for Ledcor, commencing May 2012 until April 2013, when he was laid off. He had shifts of 20 days on, 10 days off, and 20 nights on, 10 nights off, etc. When he was not working he would return to the Pembroke area where he lived with his wife.

[193] In May 2011, John had a stroke. Dan said that he began noticing changes in John and that there was something different about him. He described several incidents where John was acting strangely. For example, one morning John said that he had bought a radiation detector which would detect radiation in metals brought into the scrap yard. John said that he had used it and found one person bringing in radioactive material into the yard. When Dan went to the yard he found that the machine had not been hooked up, which led him to question how his father could say that he had found a person with radioactive material in the yard.

[194] In a second incident his father said that he had bought a 100 tonne float to transport a number of transformers that he purchased west of Toronto and that he was going to have to move them. Dan said that his father never bought the float.

[195] In May 2013 after Dan was laid off and returned to Pembroke, he began visiting the yard. In May or June 2013 John asked Dan if he wanted a place to work because things needed to be done at the yard. He agreed and was there from April 2013 to October 2013. His job was to get materials out of the yard. He testified that his compensation was $16 to $17 an hour.

[196] In June 2013, he and John had a conversation at a reception hosted by a company called Valley Spring at which John said that he should be paid $25 an hour instead of whatever he was getting. John told Dan to tell the person in the office to adjust his salary to $25 an hour.

[197] Dan said his father increased his salary because he appreciated the work he was doing. No information was provided as to why the change in salary was relevant.

[198] On Saturday, June 8, 2013, at 8:00 p.m. Dan received a phone call from Donna who said that John had had a stroke and was being airlifted to the Heart Institute. Donna asked him to take her to the Heart Institute and they arrived at the Heart Institute around midnight.

[199] Other siblings arrived. Dan said that he did not see John that night. He testified that the doctor may have said that no one could see John that night, but he said that no one else ever told him that he could not see John.

[200] The only person able to see John that night was Donna. Apparently the hospital did not want visitors until John was stable.

[201] Dan, his wife and Donna came home early Sunday morning and went back to the Heart Institute that afternoon. Dan was not sure if he saw John that afternoon.

[202] Dan says that he does not remember John talking to him whenever they did meet because of the amount of medication that John was on.

[203] They returned home later that afternoon and then Donna received a call that John had had a major stroke on the Sunday night, June 9, 2013.

[204] Dan went back to the Heart Institute with Donna and they stayed overnight on Monday. John was stable. They returned home because John was heavily medicated.

[205] The next time that he went back to the hospital was on the Wednesday morning, June 12, 2013 at 7:00 a.m. for a family meeting with the doctor.

[206] On the Wednesday evening, June 12, 2013 he went to visit after supper. At this point in time John was sitting in a wheelchair. According to Dan, his father was mumbling and was not making sense.

[207] The next time he saw John was either Saturday night, June 15, 2013 or Sunday afternoon, June 16, 2013. At that time John pointed to a picture on the wall and asked why the writing was in Chinese. This made no sense to Dan because there was no Chinese writing on the picture.

[208] At another time, Dan showed John a picture of an excavator which cost about $200,000, which was his pride and joy, but John did not recognize it.

[209] According to Dan he never had a conversation with his father that was lucid for the whole time. In addition, John never said Dan’s name.

Evidence of Brenda Lee Sperberg

Examination-in-Chief

[210] Brenda is a respondent in this matter and she acts on her own behalf. She is 55 years old and is the eldest daughter of John. She is married and has worked at the Companies from 2005 to the present. From 2005 to 2012 she was the office administrative assistant. In 2013 she became the office manager.

[211] She testified that from 2005 onwards, John was involved in the Companies on a daily basis, working with the people, making decisions and running the Companies. He continued to work there regularly until June 2013 when he had a stroke.

[212] Brenda described the relationship between John and Donna in 2005 as “husband and wife working together - it was a love/hate relationship.” In late 2011 things began falling apart with their relationship and the office environment became more hostile.

[213] She said it was no secret that John was upset that Donna was trying to get control of the Companies. They had words in the office, no matter who was there. She overheard a discussion between Donna and John that he was very disappointed and upset that he could not have information concerning the Companies and that he wanted to regain control of them.

[214] When questioned about John’s mental capacity, Brenda testified that she had no concerns about it. He was purchasing items then reselling them, operating equipment and was involved in the day-to-day operations of the business throughout.

[215] She testified that she did not notice any strange behavior by John. She described her relationship with her father as “loving”. She said she was honoured to work for her father.

[216] She testified that after John and Donna began having marital issues, the Companies were going to have to take on new financial obligations. She provided John with financial information for him to provide to the TD bank.

[217] She described the relationship between John, Kevin and Charlie as a good working relationship.

[218] Brenda testified that after John was served with the Application from Donna, John was devastated. He asked Brenda to help him with the litigation. John said that he could not comprehend that Donna would sue him after being married for 40 years.

[219] Brenda testified that she was only aware of a new will after it had been signed and had no knowledge of it before it was signed. She understood that the entire estate was left to Kevin and Charlie.

[220] She testified that she respected her father and his wishes and that she received what she needed from him in life and she respected that everything was left to Kevin and Charlie. She acknowledged that John did not care for her spouse or Karen’s partner and that Donna had been taken care of in the domestic contract.

[221] She testified that John acknowledged that Dan had been taken care of.

[222] When her father was hospitalized in June 2013 she saw him every two to three days, both in Ottawa and in Pembroke.

[223] She stated that she had minimal conversations with her father while in the hospital because he was not very healthy. She said that he knew who she was and they talked about the machinery and equipment.

[224] She testified that he knew her name and that he called her by her name on various occasions, including calling her by her nickname “Cookie”.

[225] Brenda testified that she had no issue with her father’s mental capacity while he was in the hospital and while he was instructing hospital staff.

Cross-Examination of Brenda Lee Sperberg

[226] On cross-examination, Brenda said that her father called her by her name before June 13 and that after June 13 he called her by “Cookie”. After June 13, she and her father spoke about projects that they had worked on in the past.

[227] On cross-examination she was emphatic and said that she was never concerned about his mental capacity before he signed the will. She felt that he was fully capable.

Evidence of Karen Lavigne

[228] Karen Lavigne is John’s youngest child. She had previously submitted her rights to the Court pursuant to Rule 75.07.1 of the Rules of Civil Procedure, meaning that she is not a party to the proceedings and that she is not entitled to and cannot be liable for costs of the proceedings.

[229] Karen Lavigne was served with a summons to witness by Dan’s counsel to appear at the trial as she was not prepared to testify voluntarily in this matter. According to her, she expressed her concerns about being a witness in this proceeding in April 2017.

[230] Her evidence is that she was at the Ottawa Hospital on June 13, 2013. When she walked onto the floor near her father’s room, she said that Mr. March was in the room with someone else. Karen testified that she did not know Mr. March prior to June 13, 2013. Mr. March and Ms. Campbell passed her in the waiting room as they were leaving.

[231] After Mr. March left, she went into the room. According to the evidence, her father asked her who was contesting the will. She said, “No one”, to which John asked “Why do the lawyers want me to sign?”

[232] A couple days after June 13, 2013, she was told by Kevin and Charlie that the people were in the room with her father were Mr. March and Ms. Campbell.

[233] On cross-examination it was brought out that Karen was involved in a motor vehicle accident in August 2015 and that she is suffering from short-term memory problems. She indicated that she had at least one conversation with Kevin and Charlie in which she mentioned that she had short-term memory problems.

[234] In addition, she indicated that she did not remember the date when she met with Kevin and Charlie at the business office.

[235] Her evidence is that she did not report the conversation that she had with John to Charlie and that they did not discuss it when they were going home together after that hospital visit on June 13, 2013.

Evidence of Dr. Gow

[236] Dr. Catherine Gow, a neurologist in private practice from 1999 to present, testified on behalf of Dan Yeas. She was qualified as an expert in neuropsychology. Her mandate was to review John’s medical records for the purpose of determining his testamentary capacity. Her evidence was based on the overall available information documenting John’s cognitive status following the June 8, 2013 stroke and leading up to the meeting in the late evening on June 13, 2013.

[237] In her report, Dr. Gow at p. 18 describes John’s condition as follows:

At 7:30 PM on June 12, 2013, Mr. Yeas’ family left for the night and Mr. Yeas remained upright by his bedside in a wheelchair. At 8:20 PM, he returned to bed and an orderly applied to gauze to his ears due to pain from the oxygen tubes. An exaggerated response to any stimulus was reported. At 10 PM, he was found with his “KF tube” (delivering medication) pulled out; speech was confused, and he was agitated about being in “this room”. Mr. Yeas was described as very confused and hallucinating about people in his room. Similarly, he appeared to be experiencing ongoing disorientation on the morning of June 13, when Mr. Yeas reported sleeping poorly due to “noise upstairs”. Mr. Yeas was oriented to date but said it was January; he was not oriented to place and “person” (the nurse examining him) and could not remember why he was in the hospital. Further, he could not name all of his children. At 10:15 that morning, the dietician found Mr. Yeas to be “quite drowsy” that morning after being given medications overnight due to increased agitation. CCU notes from 12:50 PM reported that Mr. Yeas remained confused; he could answer short questions but was not comprehending instructions and became agitated at night. An acute dose of haloperidol was administered and daily administration of Seroquel 12.5 mg was initiated.

At 5:30 PM on June 13, 2013, reportedly in the timeframe Mr. March arrived to review the Will, a Confusion Assessment Method (CAM) was performed by a nurse in response to Mr. Yeas having pulled out his KF tube the night before. The assessment documented an abrupt onset of mental status changes including post-CVA episodes of paranoia the night before. Inattention was reported in the form of falling into a deep sleep during interactions unless constantly aroused. Altered level of consciousness was uncertain but somnolence was reported. Psychomotor changes, memory impairment, and altered sleep-wake cycles were documented. The family left at 8:45 PM. At 3:30 AM, he was found with decreased oxygen saturation and he refused to wear an oxygen mask. Mr. Yeas had been noted to repeatedly push off the oxygen mask. Mr. Yeas was extremely restless and complained of pain in his lower back. Analgesics were administered and he re-settled. On June 14, he was oriented to month and day. A progress note described Mr. Yeas as “quite somnolent [sic], easily arousable, and following simple instruction.”

[238] In Dr. Gow’s opinion, it is questionable that John would have been able to attend sufficiently to process legal information of the length and complexity described by Mr. March when the will was signed.

[239] In her report dated April 14, 2017 at p. 21, she states:

Likewise, evidence points to ongoing registration difficulties impacting Mr. Yeas’ ability to consistently recall the nature and gravity of his own illness and reliably recall familiar people in his environment. It was simply not demonstrated in the June 13 meeting that Mr. Yeas had awareness of the nature and the extent of his property and who stood to benefit and who might be excluded or the impact of these decisions, though this might have been established by having him summarize each paragraph in his own words. Indeed, given how obviously critically ill Mr. Yeas was post-stroke and, the high likelihood that his condition was associated with some degree of cognitive decline, the probability is high that if this procedure had been used, rather than a yes/no question format, Mr. Yeas’ true level of understanding and ability to appreciate would have been demonstrated. In the absence of that information, on a balance of probabilities, Mr. Yeas was not capable of understanding and appreciating the decisions he was making with respect to the will on June 13, 2013.

[240] For those reasons Dr. Gow testified that John did not have the testamentary capacity to enter into the will.

Law of Testamentary Capacity

a) General

[241] The law in relation to testamentary capacity is discussed in the case of Re Tarling Estate (2008), 2008 CanLII 38264 (ON SC), 43 E.T.R. (3d) 177 (Ont. S.C.). In that case, Herman J. at paragraphs 53 and 54 states as follows:

[53] The general principle relating to the validity of wills is the principle of freedom of testamentary disposition. Unless children are dependents, a parent is entitled to do as he or she wishes, regardless of how wrong or unfair it may seem. This is subject to two exceptions: the testator did not have the requisite testamentary capacity; or the testator was subject to undue influence.

[54] A testator must have a "sound disposing mind" to make a valid will. This means that he or she must understand the nature and effect of a will; recollect the nature and extent of his or her property; understand the extent of what he or she is giving under the will; remember the persons that he or she might be expected to benefit under his or her will; and understand the nature of claims that may be made by persons he or she is excluding from the will. [Footnotes omitted.]

[242] In the case of Royal Trust Corporation of Canada v. Saunders, 2006 CanLII 19424 (Ont. S.C.), Blishen J. dealt with the issue of testamentary capacity. At paragraphs 57-60 she states:

[57] …In Ontario, unless the children are dependents, a capable parent, acting voluntarily, is entitled to dispose of his estate as he sees fit, even if he does disinherit his children. He can do this, however mean and ungrateful it seems or how selfish the motive. Therefore, the focus in this case, as in so many others, is on testamentary capacity.

Testamentary Capacity

[58] To have testamentary capacity, the testator must be of sound mind, memory and understanding or, to put it another way, he/she must have a sound and disposing mind. The elements of a sound and disposing mind are, that on his/her own initiative and volition, the testator:

1. understands the nature and effect of a will;

2. recollects the nature and extent of his or her property;

3. understands the extent of what he or she is giving under the will;

4. remembers the people he or she might be expected to benefit under his or her will; and,

5. understands the nature of the claims that may be made by persons he or she is excluding under the will.

[59] Although there is a high standard of mental capacity, eccentric, unfair or capricious wills do not necessarily indicate a lack of mental capacity. James MacKenzie in “Feeney’s Canadian Law of Wills”, 4th ed. (Toronto: Butterworths, 2000) at 2.3.2 puts it this way:

2.7 While the standard of mental capacity required by the law for wills is high, it is not so high as to exclude eccentric or inefficacious wills. One Ontario judge has said that a lack of capacity must amount to something more than entertaining “wrong-headed notions” and that one may be “eccentric and do absurd things and be a person with whom it is impossible to live”, but still be capable of making a will. A will-maker may be capricious or unfair in making dispositions but that does not of itself amount to lack of capacity. A good example of an eccentric will is to be found in the Ontario case of Re Millar which, though eccentric in the extreme, was not even contested on the grounds of mental incapacity. Furthermore, a person may still be able to make a good will after having been declared incapable of managing his or her affairs. …

[60] In Re Weidenberger Estate, 2002 ABQB 861, [2002] A.J. No. 1157 (A.B.) at 17, the court stated:

The fact that the Deceased was mentally ill and suffered from confusion is not determinative as to whether the Deceased did or did not have the requisite testamentary capacity. Cognitive impairment or confusion alone is not grounds for declaring a person incapable of making a will. [Footnotes omitted.]

[243] The matter was dealt with by the Supreme Court of Canada in the case of Vout v. Hay, 1995 CanLII 105 (SCC), [1995] 2 S.C.R. 876. Paragraph 26 reads, in part, as follows:

[26] …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.

[244] In the book Capacity and Undue Influence by John E.S. Poyser (Toronto: Carswell, 2014), the author deals with the issue testamentary capacity and timing, and at page 90 says as follows:

As a general rule, a person making a will must have the requisite testamentary capacity on the date the will is signed. An exception is available and the general rule does not apply where the will is prepared and signed as part of a two-stage process, with the will-maker giving instructions to a lawyer for a preparation of a will on Day 1 and then, at a later date or time, signing a will prepared to accurately give effect to those instructions. Where that occurs, the test for capacity is relaxed on the date of execution, and the will-maker does not have to possess full testamentary capacity at that time. Instead, the will-maker need only to have capacity to understand that he or she is signing a will, and that the will being signed gives effect to the instructions communicated earlier. Provided that vestigial thread of capacity remains, if full testamentary capacity had been present earlier, it will not defeat the will even though the will-maker’s capacity has diminished to the point where he or she can no longer understand the terms of the will, or no longer has the powers of mind to understand the instructions that he or she gave earlier, or has lost the capacity to reformulate those instructions. Authorities support the conclusion that the loss of capacity can be fairly profound, and includes examples of will-makers who have successfully executed wills while clearly lacking testamentary capacity and barely able to keep conscious. This exception generally comes into play when a lawyer is involved but is not limited to that scenario. What is required is a crystalized statement of the will-maker’s final testamentary intent when the will-maker has testamentary capacity followed by accurate reproduction of that intent in the form of a will signed later.

[245] The author states that this exception is commonly ascribed to and was cited in the case of Parker v. Felgate (1883), 8 P.D. 171 (Eng. P.D.A.). The author says that this law has been cited with approval and consistently applied in Canada.

[246] He cites the case of Faulkner v. Faulkner (1920), 1920 CanLII 4 (SCC), 60 S.C.R. 386, in which five members of the Supreme Court cited Parker v. Felgate with approval.

b) Suspicious Circumstances

[247] The persons propounding the will, in this case, Kevin and Charlie, have the legal burden of proof with respect to the execution, knowledge, approval and testamentary capacity. As noted above in Vout v. Hay, upon proving that the will was duly executed and that it was read to or by the testator who appeared to understand it, it will generally be presumed that the testator knew and approved of the contents of the will and had the necessary testamentary capacity. At that point, the evidentiary burden shifts to the person attacking the will, in this case, to Dan. The evidentiary burden can be satisfied by introducing evidence of suspicious circumstances which would negative knowledge and approval or testamentary capacity. In that case, the burden would shift again, this time to the propounders of the will, being Kevin and Charlie (Scott v. Cousins, [2001] O.T.C. 9 (S.C.), at para. 39).

[248] When considering whether or not there are suspicious circumstances, the Court may consider:

1. The extent of physical and mental impairment of the testator around the time of the will was signed;

2. Whether the will in question constituted a significant change from the formal will;

3. Whether the will in question generally seems to make testamentary sense;

4. The factual circumstances surrounding the execution of the will;

5. Whether a beneficiary was instrumental in the preparation of the will. See Brian A. Schnurr, Estate Litigation, loose-leaf, 2nd ed. (Toronto: Carswell, 1994) (2016, revision 8), ch. 2.1(c).

c) Delusions

[249] In James MacKenzie’s Feeney’s Canadian Law of Wills, loose-leaf, 4th ed. (Toronto: Butterworths, 2000), at 2.9 the concept of delusion is discussed:

…A perfectly capable business official may suffer from delusions that render her incapable of making a valid will, but a person may suffer from a delusion or delusions and nevertheless be capable of making a will. Irrational beliefs, falling short of producing general insanity, and which have no relation either to the testator’s property or to the persons that might be expected to benefit, can have no bearing on the question of testamentary capacity.

[250] Therefore, in order to affect testamentary capacity, the delusion must:

1. be one of “insanity”; or

2. be in relation to the testator’s property or expected beneficiaries.

[251] In Banton v. Banton (1998), 1998 CanLII 14926 (ON SC), 164 D.L.R. (4th) 176 (Ont. Gen. Div.), Cullity J. comments on the concept of “insane delusions” as follows:

[32] …The reported decisions contain many attempts at definition of which the following have often been cited with approval:

A delusion is insanity where one persistently believes supposed facts (which have no real existence except in his perverted imagination) against all evidence and probability and conducts himself however logically upon the assumption of their existence. [Am. & Eng. Cycl., Vol. 9, p. 195, cited by Sedgewick J. in Skinner v. Farquharson (1902), 1902 CanLII 87 (SCC), 32 S.C.R. 58 at p. 26.]

… insane delusions are of two kinds; the belief in things impossible; the belief in things possible, but so improbable, under the surrounding circumstances, that no man of sound mind would give them credit; to which we may add, the carrying to an insane extent impressions not in their nature irrational. [Prinsep v. Dyce Sombre (1856), 10 Moo. P.C. 232, at p. 247]

[252] Feeney’s, supra, at 2.11, says that if an aversion to the expected beneficiaries can be explained or it is found that the testator was feigning some belief in order to rationalize his failure to provide for his family, then there is no delusion.

[253] In Wilson v. Mack Estate, [1998] O.J. No. 3733 (Gen. Div.), Sanderson J. states at paragraph 197:

It is essential to a finding of testamentary capacity that no delusion has influenced the testatrix’s will in disposing of her property or has brought about a disposal that would not have been made absent the delusion. For a delusion to affect testamentary capacity it must so take over a testatrix’s mind that it governs the making of her will.

[254] In the case of Schwartz v. Schwartz, 1970 CanLII 32 (ON CA), [1970] 2 O.R. 61 (C.A.), aff’d (1971), 1971 CanLII 17 (SCC), [1972] S.C.R. 150, one of the three sons was left out of a will, but the disinheritance was easily explained by the testator’s displeasure with that son for engaging in business disputes with his brother. The new will was upheld.

[255] In the case of Ward Estate (Re), [1993] O.J. No. 1918 (Gen. Div.), the Court decided that anger towards someone is also not equivalent to incapacitating delusions.

Positions of the Parties

1. Position of Kevin and Charlie

[256] Kevin and Charlie argue that:

1. They are the propounders of the will and have the legal burden of proof with respect to execution, knowledge, approval and testamentary capacity.

2. They have met this burden through the evidence of Mary Fraser, Michael March and Brenda Lee Sperberg and that the burden now shifts to Dan to show that there were suspicious circumstances under which the will was signed.

3. Dan withdrew his claim of undue influence and/or fraud at trial.

4. Dan has shown no issues of suspicious circumstances and that the will of June 13, 2013 should not be probated.

[257] They rely on the evidence of Mary Fraser and that she had 18 to 19 meetings in which John:

1. revoked his power of attorney to Donna and created two new powers of attorney for personal care and property to Kevin and Charlie;

2. negotiated and signed a domestic contract;

3. obtained the financing to pay for the monies owing on the domestic contract;

4. provided instructions for restructuring the Companies;

5. provided clear instructions for his new will; and,

6. reviewed the draft will with Mary Fraser on June 4, 2013.

[258] They argue that Mary Fraser’s evidence was clear and forthright. She had no concerns about John’s competency. She was alert to the issues relating to his competency because she had sent John to Mr. Burnstein for a capacity assessment and Mr. Burnstein provided an opinion that John had both the capacity to revoke and grant new powers of attorney and had capacity to manage property.

[259] Mary Fraser’s evidence is that John’s instructions throughout their transactions were clear and consistent and that there were no periods in which he was unable to provide instructions in dealing with these complex issues.

[260] Ms. Fraser indicated that over the course of the file she had met with John 18 to 19 times and that she was satisfied that between the time that she first met him until he signed his will that:

1. he was consistent with understanding his financial affairs;

2. he would come to the office and discuss various complex financial issues;

3. he understood what he owned and what was happening with respect to the offer to Donna;

4. he was more hurt than angry;

5. there was a level of consistency in his reasoning; and,

6. his memory was good and his understanding about what was going on was very consistent.

[261] In relation to the will instructions given on April 19, 2013, the evidence is that John and Mary Fraser reviewed the situation of each of John’s children and John decided who were going to be the executors and who were going to be the beneficiaries. Furthermore, John was aware that the 1999 will had to be changed because, under that will, Donna was the primary executor and the primary beneficiary.

[262] Charlie and Kevin also rely on the evidence of Mr. Rosien, who testified that he had one or two meetings with John concerning the restructuring of the Companies and the payout to Donna. He testified that John was consistent with his instructions. Mr. Rosien acknowledged that John was vocal in his meetings, but this related only to how much money it was costing John and how much tax would be payable under the original proposal of how to pay Donna. Once an alternative method of funding was provided to reduce the tax payable, John was less vocal and less angry.

[263] The evidence of Michael March was also relied on by Kevin and Charlie. His evidence is that this was the first bedside will signing he had ever done and he relied totally on the instructions given to him by Mary Fraser, which he followed. They note that when Mr. March asked John what date it was, John said it was June 11, 2013 when it was in fact June 13, 2013. Therefore, John actually spoke as opposed to giving “yes” or “no” answers.

[264] Further, Michael March provided John with two versions of the will and John initialed and signed the will instead of making a mark.

[265] As noted above, Karen Lavigne testified that after Michael March and Laurie Campbell had left, John asked her two questions without being prompted – questions that related to the will:

1. “Who was contesting the will?” To which she answered, “No one”; and,

2. “Why did the lawyers want me to sign?” The Court notes that no evidence was provided as to what the answer was to that question.

[266] Kevin and Charlie argue that John had a clear understanding that he had made changes to his will and was concerned that someone was contesting the will. They also argue that John had a clear understanding that he was signing the will as opposed to some other document.

[267] Mr. Sammon, Kevin and Charlie’s counsel, argues that Dr. Gow seemed surprised to find out about the questions John asked Karen. Furthermore, Dr. Gow was also surprised to find out that John had given his will instructions on April 19, 2013 as opposed to on June 4, 2013.

[268] Mr. Sammon argues that Dr. Gow confuses the test for testamentary capacity. He further argues that Dr. Gow does not understand that the testamentary capacity to make a will is higher than the testamentary capacity to sign a will.

[269] Mr. Sammon argues that Mr. Gow was not able to advise where the information came from in the last paragraph of page 5 and the top of page 6 concerning John’s background. From the wording of the paragraphs it appears that the information came from John. Brenda testified that she had provided input into this information. Mr. Sammon argues that while John was ill and medicated, at no time did the hospital notes say that the power of attorney was used to make decisions for John while in the hospital. Mr. Sammon argues that the hospital notes specifically say that John provided informed consent for various matters, including:

1. June 10, 2013 note – he was competent to make decisions;

2. June 12, 2013 note – recommendations discussed with staff included Heather and Torry (dietician);

3. June 14, 2013 note – John consented to a physical therapy session;

4. June 17, 2013 note – recommendations discussed with John, who was agreeable that those recommendations, including his consent to a modified barium swallow.

[270] Kevin and Charlie rely on the case law set out above by Poyser at page 90, relating to timing and the standard for capacity and execution of a will as discussed in Parker v. Felgate, supra.

[271] They also rely on the case of Birtzu v. McCron, 2017 ONSC 1420, where at paragraph 40 Bloom J. quotes from paragraph 46 of the case Johnson v. Huchkewich, 2010 ONSC 6002, as follows:

[46] Care must be taken in reading the physicians’ clinical notes or in interpreting their diagnoses. Diagnosing someone as having “dementia” does not mean the person is “demented”. Diagnosing someone as having Alzheimer’s does not mean the person lacks capacity (though it may foretell a loss of capacity if the disease progresses as expected). To leap from an initial diagnosis to a conclusion of legal incapacity is unwarranted and very dangerous reasoning. I reject this line of argument.

[272] Mr. Sammon argues that the issue of whether a testator had the requisite capacity to make a will is a question of fact determined on all the circumstances and that the assessment is a highly individualized and fact-specific inquiry: see Laszlo v. Lawton, 2013 BCSC 305, at para. 197.

[273] Laszlo goes on at paragraph 198 to say that:

[198] Testamentary capacity is not a medical concept or diagnosis; it is a legal construct. Accordingly, scientific or medical evidence – while important and relevant – is neither essential nor conclusive in determining its presence or absence. Indeed, the evidence of a lay witness often figures prominently in the analysis. Where both categories of evidence are adduced, it is open to the court to accord greater weight to the lay evidence than to the medical evidence or, reject the medical evidence altogether. [Footnotes omitted.]

[274] In paragraph 199 of Laszlo, Ballance J. says that “[c]ourts may therefore reach a conclusion regarding capacity that conflicts with a medical diagnosis or the outcome of an MMSE [mini mental status examination] or other medical test.”

[275] Mr. Sammon also relies on the case Stirling Estate (Re), (1993) 1993 CanLII 15509 (NB CA), 134 N.B.R. (2d) 17 (C.A.), at paragraph 34 where the Court says:

In my opinion, the judge at probate erred in failing to consider the matter in the above context namely, that Mrs. Stirling satisfied the requirements in Leger. Although the evidence of Drs. Carruthers and Miller might have raised the Judge’s suspicions, their evidence must be considered in light of their failure to see Mrs. Stirling and their opinions must be tested against the evidence of those who had that opportunity.

2. Position of Brenda Lee Sperberg

[276] Brenda argues that her father had capacity to give the will instructions on April 19, 2013 and also had testamentary capacity when he reviewed the draft will on June 4, 2013 and when he signed the will on June 13, 2013. She argues that there is no evidence to the contrary.

[277] Lastly, she argues that her father’s wishes as set out in the June 13, 2013 will should be honoured.

3. Position of Dan

[278] Dan argues that he has satisfied his evidentiary burden by introducing evidence of suspicious circumstances which would negative the knowledge and approval or testamentary capacity of John.

[279] Dan argues that the evidence of his expert witness, Dr. Gow, indicates that John did not have testamentary capacity when he signed the will.

[280] Dan argues that while the power of attorney was not mentioned or used while John was in the hospital, both of the powers of attorney, Kevin and Charlie, were present at the Wednesday, June 12, 2013 meeting at 7:00 a.m. with the doctors and the staff to discuss John’s condition and to ask about a do-not-resuscitate order and to prepare for the father’s future – that he had a less than 50% chance of leaving the hospital.

[281] Dan argues that the law is well-settled that the propounders of the will, Kevin and Charlie, have the burden of proof to show the Court on the balance of probabilities that John had testamentary capacity and knowledge and approved of the contents of the will. The more grave the suspicious circumstances under which the will was made, the more compelling must be the evidence to satisfy the onus.

[282] Dan argues that in December 2011 Dr. Thomas examined John and said that he had mild to moderate dementia. Therefore, he was unable to manage his affairs and Donna was made as power of attorney for both personal care and management of property pursuant to a letter from Dr. Thomas.

[283] Dan argues that the capacity assessment of Mr. Burnstein was not an assessment of testamentary capacity and the Court should look at other evidence to reach its conclusion about testamentary capacity.

[284] Dan argues that Dr. Gow testified that the capacity assessment done by Mr. Burnstein was a base and minimal test and that he should have done more testing.

[285] Dan relies on the evidence of Donna that after May 2011, when John had his stroke, John began acting strangely, impulsively and irrationally. He cites the case of purchasing an unneeded zoom boom, and when John bid on a large off-road gravel vehicle which the Companies had no use for.

[286] Dan argues that John was delusional and cites the radioactive metal detector incident mentioned above. Dan also suggests that John’s insistence on driving without a license showed his poor insight.

[287] It was Dan’s evidence that he never had coherent conversations with John while John was at the Heart Institute. When Dan did speak to John, most answers were monosyllabic. Dan also cites the incident of the poster with “Chinese writing” in the hospital room, and John’s stories to Donna that he was walking the halls of the hospital or visited the Timberline Snow Mobile Club when he was, in fact, unable to walk or make such a visit.

[288] As to the evidence of Michael March, Dan argues that this was Michael March’s first deathbed will signing and possibly his only will signing and that he had no idea what to do except to follow Mary Fraser’s written instructions because Mary Fraser said John should have the opportunity to sign the will.

[289] Dan argues that Michael March did not try to establish John’s competence. He claims that he only asked yes or no questions and should have asked open-ended questions such as, “Who was your lawyer?”, “Who are your children?”, or “What instructions did you ask him to prepare your will?”

[290] Dan argues that Mary Fraser did not get a capacity assessment after the will was signed because by then it would have been too late. In addition, no one sought to ask any of the hospital staff if John had capacity because they were not sure of the answer they would get. Not obtaining the capacity assessment was suspicious to Dan.

[291] Dan states that the questions asked to Karen by John shows that he was confused and that he did not understand that he was signing the will. He argues that there is no connection between the will by Mary Fraser on June 4, 2013 and the will signed on June 13, 2013.

[292] Dan also argues that because of John’s condition, he was suffering from “sundowning” which meant that he came more disoriented later in the day. In this case the will was signed between 4:00 and 5:30 p.m. and possibly after 6:00 p.m., and that therefore the effect of the sundowning would leave John in a state of confusion.

[293] In addition, Dan argues that all of the medication that John was taking, including Haldol and Seraquel, may have (Court’s emphasis) had an impact on his cognitive functioning. The Court notes that there was no expert testimony that the taking of these medications did have an impact on John’s cognitive functioning.

[294] Mr. Murphy, Dan’s lawyer, argues that this expert evidence is sufficient to show suspicious circumstances and to rebut the presumption of testamentary capacity. The burden then shifts to Kevin and Charlie to establish John’s testamentary capacity.

[295] Mr. Murphy said that he did not take issue with any of the cases put forward by Mr. Sammon but argues that the propounders did not resolve the issues that the will was executed under suspicious circumstances. Therefore the Court should find that John did not have the requisite testamentary capacity when he executed his will.

[296] Mr. Murphy argues that the process used by Mr. March to get the will signed was not a process recognized in law as being sufficient. He relies on the case of Murphy v. Lamphier (1914), 31 O.L.R. 287 (H.C.), where at paragraph 39 the Court says that competency of the mind must be judged by the nature of the act done and from a consideration of all of the circumstances of a case.

[297] Mr. Murphy also relies on the case of Re Worrell, 1969 CanLII 269 (ON SC), [1970] 1 O.R. 184 (Surr. Ct.), which states at paragraph 21 that the practice of asking leading questions by a solicitor when obtaining instructions from an elderly testator is a practice to be avoided.

[298] Mr. Murphy relies on the case of Scott v. Cousins, [2001] O.T.C. 9 (S.C.), at paragraph 70 which says that a solicitor should make a serious attempt to determine whether the testator had capacity to execute the will and that if there is any doubt, a memorandum or note of the solicitor’s observations and conclusions should be placed in the file.

[299] Mr. Murphy also relies on the case of Faulkner v. Faulkner (1920), 1920 CanLII 4 (SCC), 60 S.C.R. 386, which quotes with approval the proposition in Parker v. Felgate, mentioned previously in this decision.

[300] Mr. Murphy also argues that these are public policy issues if the Court finds in favour of the propounders:

• it would endorse Mary Fraser’s decision not to seek medical advice in a situation where a patient is very ill;

• it would endorse the procedure used by Michael March of asking questions that only require a “yes” or “no” answer without asking probing questions to provide the Court with clear answers showing that John understood the execution of the will within the doctrine laid in Parker v. Felgate.

[301] Mr. Murphy argues that the question is not whether Michael March would have been satisfied that John had capacity, but rather whether there are sufficient circumstances to satisfy the Court that John had testamentary capacity when he executed the will.

Analysis

Issue #1: Did John have Testamentary Capacity When He Gave Instructions for the Will on April 19, 2013?

[302] The Court has reviewed the evidence by each of Mary Fraser, Donna and Dan. Notwithstanding that Dr. Thomas had provided the report which indicated that John suffered from mild to moderate dementia and that he was incapable of managing his affairs, the subsequent reports of Dr. Galley and the assessment of Mr. Burnstein state that John did have capacity to revoke and execute new powers of attorney and did have capacity to manage his financial affairs.

[303] The Court prefers Dr. Galley’s report and Mr. Burnstein’s capacity assessment to the report of Dr. Thomas.

[304] The evidence of Mary Fraser is clear. She obtained the report of Dr. Galley and thereafter obtained a capacity assessment from Mr. Burnstein to deal with the issue of a capacity assessment. Her evidence is that she wanted to be satisfied that John did have capacity to provide instructions for various things, including his last will and testament, prior to acting for him. The Court finds that Mary Fraser was live to the issue of John’s capacity and obtained the necessary capacity assessment to satisfy herself that he had the necessary capacity to give instructions on various matters.

[305] The Court notes that Donna’s concerns about John’s capacity dissipated once the domestic contract was being negotiated and the terms were agreed to. John signed the domestic contract personally, notwithstanding of Donna’s claim that John did not have capacity to sign new Powers of Attorney. No further action was taken by Donna to deal with the issue of John’s capacity in relation to the Application. The Application was dismissed on consent, with counsel from both parties acknowledging that no party was under any legal disability.

[306] Mary Fraser’s evidence was clear that when she took instructions from John on April 19, 2013, he was aware of who his potential beneficiaries were and what his assets were.

[307] Therefore, the Court finds that up to and including April 19, 2013, John had testamentary capacity when he gave his instructions to prepare his last will and testament. The more up-to-date testing, as conducted by Dr. Galley and Mr. Burnstein, both show that John had testamentary capacity.

[308] Furthermore, the Court finds that at the April 19, 2013 meeting John and Mary Fraser reviewed each of his potential beneficiaries and decided who would be included in his will and who would not.

Issue #2: Did John Have Testamentary Capacity When He Reviewed the Draft Will on June 4, 2013?

[309] No evidence was provided that John did not have testamentary capacity when he reviewed the draft will with Mary Fraser on June 4, 2013. Based on the evidence, the Court finds that when John met with Mary Fraser in her office on June 4, 2013, he reviewed the draft will which was prepared in accordance with his instructions from April 19, 2013. The Court finds that John approved of his draft will when he reviewed it on June 4, 2013.

Issue #3: Were the Contents of the June 4, 2013 Draft Will the Same as the Will Signed on June 13, 2013?

[310] The only evidence provided in relation to this issue was from Mary Fraser. Her evidence was that the draft will which she prepared based on the April 19, 2013 instructions was the will that she reviewed with John on June 4, 2013. John was satisfied with the June 4, 2013 draft will. In addition, her evidence was that the June 4, 2013 draft document was the will signed by John on June 13, 2013.

[311] The Court has reviewed the draft will of June 4, 2013 and the executed will on June 13, 2013.

[312] The Court finds that both of those documents contain the same wording in relation to who the executors are to be. Both documents also contain the same wording regarding who the beneficiaries are to be. The draft will was reviewed by Mary Fraser with John alone in her office.

[313] Therefore the Court finds that the contents of the draft will and the signed will are the same.

Issue #4: Did John have Testamentary Capacity when he Signed the Will on June 13, 2013?

General

[314] The Court adopts the proposition in Parker v. Felgate that a will is validly made if the will-maker enjoys testamentary capacity on the date the instructions are given and, having lost that capacity, remains capable at execution of understanding that he or she gave instructions earlier, that he or she is being asked to sign a will and that the will tendered for execution has been prepared based on these earlier instructions.

[315] The Court finds that the test for capacity in this case is relaxed because in this case there was a three-stage process involved with the preparation and execution of the will:

1. Provision of Instructions on April 19, 2013;

2. Review of the draft will and approval of its terms by John on June 4, 2013; and

3. Signing of the will on June 13, 2013.

[316] The Court finds that when John signed the will, the test for testamentary capacity was relaxed. He did not need to have full testamentary capacity at the time of signing. He only needed to have capacity to understand that he was signing a will and that the will gave effect to his instructions communicated by him to Mary Fraser on April 19, 2013.

[317] The Court finds that the aforesaid did in fact, occur. Based on the reasoning set out in Poyser’s Capacity and Undue Influence, the Court finds that testamentary capacity was present before June 13, 2013, and that even though John’s capacity had diminished to the point where he may no longer have been able to understand the terms of the will, or may no longer have had the powers of mind to understand the instructions that he gave earlier or may have lost the power to reformulate those instructions, for the purposes of signing of the will, he did have testamentary capacity.

[318] In this case, the Court has already found that John had testamentary capacity on April 19, 2013 when he gave instructions to Mary Fraser. Furthermore, the evidence is that he and Mary Fraser discussed what his property was and who his beneficiaries would be at that meeting. John made conscientious decisions as to who would be a beneficiary under the will and who would not. There is no evidence that on April 19, 2013 John was under any delusions as to his property or his beneficiaries, or that he did not have testamentary capacity.

[319] On June 4, 2013 John and Mary Fraser reviewed the draft will and John was satisfied with it without any changes. There is no evidence that he did not have testamentary capacity at that time.

[320] In many of the cases cited by the parties, the testator either gave instructions while in the hospital or the instructions were given to a lawyer by someone other than the testator, sometimes a beneficiary.

[321] What makes this case different from most other cases relied upon by counsel is that prior to John having a stroke and being hospitalized, he had reviewed his draft will with the solicitor who prepared it based on his instructions. He was satisfied with the dispositions made out in that document at that time. It was at a later date that John was then asked to sign the will, i.e. June 13, 2013.

[322] The facts of this case are very different, which leads to the conclusion set out herein.

Suspicious Circumstances

[323] In terms of suspicious circumstances, the Court does not find that they were any. Mr. March followed the written instructions given to him by Mary Fraser. He spoke to John and asked him questions. He received responses to those questions. Not all the questions involved yes or no answers. When asked what date it was, John admittedly got the day of the month wrong but he got the month and the year correct.

[324] The Court does not find the error in the day of the month to be a significant issue in relation to John’s testamentary capacity. John knew he was in the Heart Institute. He knew it was June 2013.

[325] In addition, he also gave other answers that were more than yes or no answers.

[326] In terms of mental impairment, Dr. Gow’s evidence in her report on page 21 is that:

Overall, based on the available information, documenting Mr. Yeas cognitive status following the June 9th, 2013 stroke and leading up to the meeting in the late afternoon, evening on June 13, it is questionable that he would have been able to attend sufficiently to process legal information of the length and complexity described by Mr. March. Likewise, evidence points to ongoing registration difficulties impacting Mr. Yeas’ ability to consistently recall the nature and gravity of his own illness, and reliably recognize, recall familiar people in his environment. It was simply not demonstrated in the June 13th meeting that Mr. Yeas had awareness of the nature and extent of his property, who stood the benefit and who might excluded or the impact of these decisions, though this might have been established by having him summarize each paragraph in his own words.

[327] That is her opinion upon reviewing the hospital reports provided to her.

[328] On the other hand, Michael March was in the room with John at the time that he initialed and signed the will and asked questions and received answers. His evidence was that he asked more than yes or no questions and received more than yes or no answers.

[329] The best evidence before the Court is that of Michael March and the hospital notes taken on the days and times recorded.

[330] John was physically impaired due to a stroke, however, he initialed the first page of the will with his initials and not something else. Further, he put his signature on the second page of the will and not something else. The Court finds that something was engaging in John’s brain to function well enough to provide his initials and his signature on the will.

[331] When he gave instructions on April 19, 2013 and when he reviewed the draft will on June 4, 2013, there is no evidence that John lacked testamentary capacity.

[332] Furthermore, the hospital notes indicate on various dates that the testator himself – and not his power of attorney – provided information and informed consent to various matters, as set out previously in this decision.

[333] While appreciating the evidence given by the defence expert Dr. Gow, the Court does not find that her evidence shows evidence of suspicious circumstances which would negative knowledge and approval and testamentary capacity.

[334] In the case of Stirling Estate (Re), at paragraph 34 the Court said that:

In my opinion, the Judge of Probate erred in failing to consider the matter in the above context, namely, that Mrs. Stirling satisfied the requirements in Leger. Although the evidence of Drs. Carruthers and Miller might have raised the Judge’s suspicions, their evidence must be considered in the light of their failure to see Mrs. Stirling and their opinions must be tested against the evidence of those who had that opportunity.

[335] The Court has tested the expert evidence of Dr. Gow against the evidence of Mr. March who saw John sign his will. The Court finds that the evidence of Mr. March is preferred to the evidence of Dr. Gow who provided an opinion based on the hospital notes and other information.

[336] The fact that Mr. March was present and spoke with John and satisfied himself that John had capacity is preferred to the evidence of Dr. Gow who reviewed the information after the fact.

[337] Further, there is no evidence that the will did not make testamentary sense.

[338] The Court has heard evidence from Mary Fraser as to why certain people – including Brenda and Karen and Dan – were left out of the will. There was also evidence given by Brenda as to why she, Karen and Dan were left out of the will. The Court finds that the reasons given for leaving these people out of the will were rational, not irrational.

Delusions

[339] In the present case, Dan testified that in May 2011 after John had the stroke, he began noticing changes in John and that there was something different about him. He described several incidents where John was acting strangely, such as the incidents involving radioactive metal detector and the purchase of the 100-tonne float, together with Donna’s evidence about John’s strange behavior, such as purchasing the zoom boom and insisting on driving.

[340] Dan says that after John had his stroke in June of 2013, John acted strangely again, such as when he pointed at the hospital wall poster with “Chinese writing”, was unable to recognize his excavator, and suggested that he “walked the halls” or went to the Timberline Snow Mobile Club while in hospital, which never occurred.

[341] From the Court’s perspective, while these may be interesting stories, but they do not rise to the level of delusions as set out by Feeney’s, supra, and the case law.

[342] The Court does not find that the delusions in this case were ones of “insanity”.

[343] Furthermore, in order to affect testamentary capacity, the delusion must be relation to the testator’s property or expected beneficiaries.

[344] In this case, the Court finds that while there may have been delusions, they are not ones of insanity. Furthermore, those delusions are not in relation to the testator’s property that is being given under the will or in relation to the expected beneficiaries, to be considered incapacitating delusions.

[345] The Court notes that the Confusion Assessment Method (CAM) indicated that as of June 13, 2013 at 5:30 p.m., the patient “falls into a deep sleep during interactions unless constantly aroused” and “post CVA episodes last night” and “uncertain somnolant” [sic] and there were additional delusional features noted. The Court follows the reasoning set out in p. 90 of the John Poyser text in which he says that the general rule does not apply where a will is prepared and signed as part of a two stage process, with the will-maker giving instructions to a lawyer for the preparation of a will on day one and then, at a later date, signing a will to accurately give effect to those instructions.

[346] In fact, on the facts of this case, this was a three-stage process:

1. Stage 1: giving instructions on April 19, 2013;

2. Stage 2: review of draft will on June 4, 2013; and,

3. Stage 3: signing the will on June 13, 2013.

[347] The Court is satisfied that based on the specific facts of this case with the three separate stages, that the test for capacity is relaxed on the date of execution and the will maker did not have to possess full capacity at the time that he signed it.

[348] Instead, he only needed to have the capacity to understand that he was signing a will and that the will signed gave effect to the instructions communicated earlier.

[349] Furthermore, while this was Mr. March’s first deathbed will signing, he was a lawyer who had civil and criminal litigation experience for over 20 years. The Court finds that he had sufficient skill and knowledge to determine that John had the understanding that he was signing a will and the will was giving the instructions that he had communicated to Mary Fraser earlier.

[350] Furthermore, the Court is fully aware that John reviewed and approved with Mary Fraser his will on June 4, 2013 and that nothing changed in the contents from June 4 to June 13, 2013. Therefore, the testamentary capacity to sign the will was not the same as in the usual circumstances. The Court follows the reasoning set out in Parker v. Felgate to come to this conclusion.

Conclusions

[351] The Court finds that on the balance of probabilities Kevin and Charlie, as propounders of the will, have met the legal burden of proof with respect to the execution, knowledge and approval and testamentary capacity of John.

[352] The Court finds that Dan has not provided sufficient evidence to show that the will was executed under suspicious circumstances or that John was delusional or that John did not have testamentary capacity when he executed his last will and testament on June 13, 2013.

[353] The Court finds that John had the requisite knowledge to give his instructions on April 19, 2013 when he reviewed his estate planning with Mary Fraser.

[354] The Court finds that John had the requisite testamentary capacity when he reviewed the draft will on June 4, 2013.

[355] The Court finds that the provisions of the will signed by John on June 13, 2013 were exactly the same as those in the draft will of June 4, 2013.

[356] The Court finds that John had testamentary capacity to sign his will dated June 13, 2013.

[357] The Court orders that the last will and testament of John Yeas dated June 13, 2013 be probated.

Costs

[358] The parties shall be allowed 14 days to resolve the issue of costs. If they are unable to do so, they shall contact the trial coordinator and obtain a date and time to argue the issue of costs. Each party will have 15 minutes to argue the issue of costs. Costs Outlines and any Rule 49 Offers to Settle shall be provided three days prior to the hearing of the costs argument. One counsel is from out of town. That counsel can appear by phone, if he wishes. Depending on the date chosen, the Court may also appear by phone.

[359] Order accordingly.

Mr. Justice Stanley Kershman

Released: December 12, 2017

CITATION: Yeas v. Yeas, 2017 ONSC 7402 PEMBROKE COURT FILE NO.: CV-13-1156 DATE: 2017/12/12

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

DANIEL YEAS

Applicant

• and –

JOHN CARL YEAS, KEVIN YEAS, KAREN LAVIGNE, BRENDA LEE SPERBERG

Respondents

REASONS FOR DECISION

KERSHMAN J.

DATE RELEASED: December 12, 2017