Court File and Parties

COURT FILE NO.: 01-0555/15 DATE: 20181102 SUPERIOR COURT OF JUSTICE – ONTARIO

IN THE MATTER OF THE ESTATE OF ANDREW HRABOVSKY, deceased

RE: Gayle Shannon, Applicant AND: Michael Hrabovsky and Glenn Hrabovsky, both in their capacities as Estate Trustees with a Will of the Estate of Andrew Hrabovsky, deceased, and in their personal capacities, Respondents

BEFORE: Mr. Justice H.J. Wilton-Siegel

COUNSEL: Kira E. Taylor, for the Applicant Stephen M. Werbowyj, for the Respondents

HEARD: July 20, 2018

Endorsement

[1] On this application, Gayle Shannon (the “applicant” or “Gayle”) seeks a declaration of the invalidity of the last will and testament of Andrew Hrabovsky (the “Testator”) dated July 24, 2007 (the “2007 Will”) on the grounds of lack of testamentary capacity or undue influence on the part of her brother, Glenn Hrabovsky (“Glenn”).

Factual Background

The Parties

[2] Gayle and Glenn are the adopted children of the Testator and his wife Doris, who died in 1987. Michael Hrabovsky (“Michael”) is the brother of the Testator. In this Endorsement, Glenn and Michael are herein referred to collectively as the “respondents”.

[3] The Testator died on November 15, 2014.

[4] Glenn and Michael were named as estate trustees under the 2007 Will and obtained a Certificate of Appointment of Estate Trustee with a Will on March 19, 2015.

The Principal Documentation

The Cottage Transfer

[5] By 1999, the Testator owned two properties: (1) his personal residence at 33 Bradford Avenue, Toronto (the “Home”); and (2) a Muskoka cottage (the “Cottage”).

[6] Pursuant to a transfer dated January 28, 1999, the Testator transferred the Cottage into the name of himself and Glenn as joint tenants (the “Cottage Transfer”).

The 2002 Will and the 2002 Powers of Attorney

[7] On April 11, 2002, the Testator executed a last will and testament (the “2002 Will”). The 2002 Will named Michael and Glenn as executors. After payment of a legacy of $30,000 to Michael, the Testator left the residue as follows: (1) ten percent to the children of Glenn to be divided equally; (2) ten percent to the children of Gayle to be divided equally; and (3) the balance to be divided equally between Gayle and Glenn. The Testator provided Gayle with a copy of the 2002 Will.

[8] By powers of attorney dated August 16, 2002, any two of Gayle, Glenn and Michael were named the Testator’s attorneys for property and for personal care (the “2002 Powers of Attorney”).

The Demand Letter and the 2005 Powers of Attorney

[9] On September 27, 2005, the Demand Letter (defined below) was sent to Gayle.

[10] On November 16, 2005, the Testator executed new powers of attorney for property and personal care naming Michael and Glenn (the “2005 Powers of Attorney”).

The 2006 Will

[11] On November 30, 2006, the Testator executed a new will (the “2006 Will”) naming Michael, Glenn and Gayle as his executors. The 2006 Will provided for: (1) a legacy of $35,000 to Michael; (2) the transfer of the Home to Gayle; (3) ten percent of the residue to be divided equally among Glenn’s children; (4) ten percent of the residue to be divided equally among Gayle’s children; and (5) the balance to be divided equally between Gayle and Glenn. The Testator provided Gayle with a copy of the 2006 Will.

The 2007 Will

[12] On July 24, 2007, the Testator attended at his lawyer’s office with Glenn. He executed the 2007 Will. In the 2007 Will, the Testator named Glenn and Michael as his executors. The 2007 Will provided that his cat, Sassy II, was to be transferred to his veterinarian and that payments of $5,000 and $100,000 were to be made to a cousin, Ann Simcoe, and Michael, respectively.

[13] The 2007 Will contemplated that the residue would be divided as follow: (1) 15 percent to Glenn’s children to be divided equally; (2) 15 percent to Gayle’s children to be divided equally; and (3) the balance to Glenn or, if he predeceased the Testator, to Glenn’s children equally.

[14] Paragraph 9 of the 2007 Will also contained the following statement regarding Gayle:

9. I have lent my daughter, GAYLE SHANNON, money that she has not paid back to me. By this will, I wish to forgive my daughter for the entire loan. I direct my Estate Trustees that they shall not look to my daughter to repay any part of the loan and/or any accrued interest thereon.

[15] The Testator did not provide Gayle with a copy of the 2007 Will. Apparently he did not receive a copy himself. Gayle did not learn of the 2007 Will until January 2015 when she was provided with a copy by the solicitor for the estate of the Testator.

Subsequent Events

[16] In August 2007, Gayle says the Testator was concerned that he did not know what he signed when he attended the lawyer’s office on July 24, 2007. At the request of the Testator, Gayle took him to another lawyer’s office for consultation. The Testator met privately with a lawyer in that office. The lawyer advised the applicant that, while it appeared that the Testator wished to make a new will, he was not prepared to take the Testator’s instructions at that time due to concerns regarding capacity and undue influence, given that Gayle had driven the Testator to the office. Gayle subsequently tried to arrange for someone to drive the Testator to the lawyer’s office, apart from Glenn. She was unsuccessful and his capacity decline eventually made this impossible.

[17] In May 2008, the Testator provided Gayle with her adoption papers, some of her mother’s jewellery and the executed deed to the Home dated April 30, 1954 (the “Deed”). The Testator apparently believed that, as long as Gayle had the Deed, she was effectively the owner of the Home. Gayle had the same understanding from the Testator. Gayle says the Testator said that he provided these items to her out of a mistrust of Glenn.

The Loan to Gayle

[18] A significant issue in these proceedings are the circumstances pertaining to a loan to Gayle because it is the reason alleged by Glenn for the Testator’s exclusion of any gift to Gayle in the 2007 Will. The following are the relevant facts pertaining to this matter.

[19] On September 27, 2005, Ann Woodruff (“Woodruff”), a solicitor in the law office that handled the Testator’s legal affairs who had previously drafted the 2002 Will and 2002 Powers of Attorney, sent the following letter (the “Demand Letter”) to Gayle, allegedly on the instructions of the Testator:

Dear Ms. Shannon:

Re.: Andrew Hrabovski Credit Cards

I have been retained by Andrew Hrabovski regarding your unauthorized use of Mr. Hrabovski’s credit cards. We understand from our client that he has paid $12,000.00 of expenses that you incurred with his credit cards.

Mr. Hrabovski expects the money to be paid back to him before the end of the year by weekly payments. Please provide Mr. Hrabovski with postdated cheques with the first payment on October 2nd and the following payments each Monday thereafter.

Yours truly,

Ann M. Woodruff

cc. Andrew Hrabovski

[20] Woodruff says that she met with the Testator the day before the Demand letter was sent and took instructions from him. She says, however, that the Testator did not review the text of the Demand Letter before it was sent to Gayle.

[21] Gayle says that, in or about 2005, she experienced cash flow shortages in her bathroom renovation business. She says her father offered to help by allowing her to purchase some supplies on his credit card. Gayle says that there were approximately five purchases in total that amounted to between $7,000 and $8,000. She says that she never possessed the credit card and that the Testator authorized all of the purchases over the telephone to the vendors. Gayle says that the Testator kept the tally of the amount outstanding and did not advise her of the total. Gayle also says that she had stopped using the credit card by the time she received the Demand Letter.

[22] Gayle further says that she called the Testator about the Demand Letter. She says he denied knowledge of the Demand Letter, suggested it must have been Glenn’s doing, and stated that he would speak to Glenn about it.

[23] Gayle says that she repaid the loan informally in various ways over a number of years. In 2008 or 2009, Gayle says the Testator signed an informal acknowledgement that the loan had been paid in full. According to Gayle, the Testator raised it in a conversation with Gayle’s daughter who then wrote out an acknowledgement of repayment that the Testator signed at that time.

[24] Glenn says that the charges were not authorized by the Testator and not known to the Testator until he had to pay for them. He says that the Testator was upset and considered that Gayle had deceived him. He says that the Testator instructed Woodruff to send the Demand Letter.

[25] Michael says that the Testator informed him of a conflict between the Testator and Gayle over Gayle’s unauthorized use of a credit card. He says the Testator told him that “he stopped her”.

[26] I will address the significance I believe should be attached to the Demand Letter later in this Endorsement.

The Testator’s Medical History

[27] The Testator suffered a stroke for the first time on or about January 13, 2002 for which he was hospitalized at Trillium Health Centre for several months. He was temporarily paralyzed on his left side. Both his cognitive state and his physical health were severely impaired. He underwent a rehabilitation program that included an adult learning course to relearn some basic mathematics, reading and writing skills. His health improved and he was discharged. He returned to living independently in the Home in June 2002.

[28] The Testator suffered another small stroke on or about September 11, 2005. He was hospitalized for eight days before being discharged on September 19, 2005, returning to his home.

[29] Between 2010 and 2011, the Testator suffered two or three additional strokes. These strokes were more serious and required rehabilitation. After the last stroke, the Testator required the assistance of a home nurse to continue living in the Home.

[30] Ultimately, independent living became impossible. The Testator lived in three different nursing homes between 2012 and the date of his death in 2014. Gayle says this was because Glenn wished to save costs to maximize his inheritance. Michael denies that Glenn acted in this manner.

The Medical Evidence

[31] The parties rely on different medical evidence regarding the mental state of the Testator.

Dr. Devaraj

[32] Gayle relies principally on the evidence of Dr. Devaraj, a geriatric and internal medicine specialist. Dr. Devaraj first saw the Testator on June 6, 2002. He states that the Testator suffered mixed dementia and Alzheimer’s disease at the time and was dependent on others for his activities of daily living.

[33] At that time, the Testator scored 25/30 on the Mini Mental State Examination (the “MMSE”). The MMSE is a commonly used set of questions for screening cognitive function which can be utilized to indicate the presence of cognitive impairment, such as suspected dementia, but is not suitable for making an actual diagnosis.

[34] A consultation report prepared on June 11, 2002 by the Testator’s rehabilitation team was consistent with Dr. Devaraj’s observations. It noted that the Testator continued to present with significant memory and problem solving deficits, among other things.

[35] Dr. Devaraj saw the Testator again on September 11, 2005 at the time of his hospitalisation as described above. He states that the Testator had recovered 90 percent of his motor function lost as a result of the 2002 stroke. However, he diagnosed the Testator as suffering from mixed dementia. He understood that the Testator could no longer manage independently and relied on his children to assist him with daily tasks such as grocery shopping and banking. Dr. Devaraj’s report indicates that the Testator’s dementia was being addressed by medication. Dr. Devaraj also noted that the Testator had a previous tendency to paranoia that did not appear to be a big problem at the time. As discussed below, it appears that this condition was also controlled by medication.

[36] Dr. Devaraj saw the Testator for the last time on February 7, 2008. By this time, he says the Testator’s condition had worsened significantly and he was experiencing ongoing memory problems. He scored 19/30 on the MMSE test. Dr. Devaraj states that patients with dementia who score less than 20/30 on the test normally reside in an assisted living facility as they require assistance in completing daily living tasks.

[37] Dr. Devaraj also stated that patients with dementia normally decline at a rate of four points on the scale per year without treatment and two points per year with treatment, although this can vary with individuals. The Testator had been prescribed a drug for memory loss since 2002 but it is unclear how regularly he took this medication.

Dr. Varga

[38] The respondents rely principally on the medical records of the various hospitals at which the Testator received medical attention during the years 2002 to 2012 and, in particular, on the records of Dr. Marica Varga. Dr. Varga appears to be a staff physician in the geriatric service at St. Joseph’s Hospital. Dr. Varga saw the Testator on five occasions when he attended the ambulatory clinic for the elderly community at that hospital. Dr. Varga did not provide affidavit evidence nor was she was cross-examined in this proceeding so her evidence is restricted to her notes.

[39] Dr. Varga saw the Testator on October 22, 2008, July 28, 2009, November 5, 2009, August 22, 2011 and February 23, 2012. She conducted an MMSE test on the first three of these occasions. The Testator respectively scored 24/27, 26/30 and 26/30 on those occasions. On the final attendance, Dr. Varga assessed the Testator as being incapable of making financial decisions. The following matters emerge from Dr. Varga’s reports.

[40] First, Dr. Varga did not conduct any diagnosis of the Testator’s medical condition, apart from the determination on the last visit.

[41] Second, Dr. Varga appears to have proceeded on the basis that the Testator had mild dementia and that this was controlled by medication.

[42] Third, Dr. Varga was aware that there were continuing problems with the Testator’s self-medication. For example, her report of October 22, 2008 refers to the Testator’s visit to the emergency department of the hospital in July, 2008. According to the nursing assessment report in respect of that visit, the Testator was in a confused state at the time of his visit and Glenn had stated that the Testator had been in that state for two weeks. The report also indicates problems with management of his medications. A concern that the Testator was likely not taking his medications regularly was also expressed in a report of the Testator’s visit to the emergency department of St. Joseph’s Hospital on December 16, 2006.

[43] Fourth, the report of Dr. Varga also appears to have proceeded on the basis that the Testator had a paranoid disorder. In her report of October 22, 2008, she reports that there had been only one paranoid episode since the Testator’s visit to the hospital in July 2008, suggesting that she was aware of paranoid episodes prior to that date. It also appears from that report that Dr. Varga associated the paranoid episodes with the Testator’s failure to take his prescribed medicine.

The Non-Medical Evidence Regarding the Testator’s Mental Condition

[44] The following summarizes the non-medical evidence regarding the Testator’s medical condition.

Glenn

[45] Glenn stated in his affidavit sworn March 22, 2107 that the Testator was “mentally sharp and focused” until approximately 2012.

Michael

[46] Michael stated in his affidavit sworn March 22, 2017 that he visited his brother weekly and that the Testator also regularly visited him and his wife in their home. Michael says that, while the Testator’s motor skills did not fully return after the stroke in 2002, “he remained mentally sharp and aware of his financial and family circumstances thereafter until approximately 2012”. Michael also says that he had no knowledge of any of the strokes after 2002 referred to by Gayle in her affidavit evidence described below.

Woodruff

[47] Woodruff says that she acted for the Testator in respect of all of the relevant legal documentation, apart from the Cottage Transfer. In her affidavit sworn March 22, 2017, she says that, throughout this time, she was of the view that the Testator was capable, competent, and possessed the required testamentary capacity to make a will and a power of attorney.

[48] With respect to the 2007 Will, in particular, Woodruff says that she interviewed the Testator, that she was fully satisfied that he was giving her his clear instruction, and that he did not exhibit any impairment of testamentary capacity. She says he was aware of his assets, his circumstances and the natural objects of his affection.

[49] Woodruff attached to her affidavit the notes that she made at the time of meeting the Testator to draft the 2002 Will and the 2007 Will. The notes are however restricted to the Testator’s instructions. Further, Woodruff makes no mention in her affidavit of any meeting with the Testator regarding the Demand Letter.

Gayle

[50] In her affidavit sworn December 22, 2016, Gayle says that the Testator began to exhibit signs of dementia and Alzheimer’s following his stroke in 2005. She says he slowed down with each stroke and became increasingly reliant on Glenn.

Gregory Shannon

[51] Gregory Shannon (“Greg”) is Gayle’s ex-husband. Gayle and Greg were married in 1987 and separated in 2011. Greg says that it was clear by 2007 that the Testator’s mental capacity had diminished significantly. He says that less and less of his conversations made sense, that he was exhibiting more and more eccentric behaviour, and that it was very difficult for him to be precise or analytical.

Applicable Law

[52] The principles governing the burden of proof in cases in which a will is attacked on the grounds of a lack of testamentary capacity were addressed by the Supreme Court in Vout v. Hay, [1995] 2 S.C.R. 876 and summarized by Cullity J. in Scott v. Cousins as follows at para. 39:

1. The person propounding the will has the legal burden of proof with respect to due execution, knowledge and approval and testamentary capacity.
2. A person opposing probate has the legal burden of proving undue influence.
3. The standard of proof on each of the above issues is the civil standard of proof on a balance of probabilities.
4. In attempting to discharge the burden of proof of knowledge and approval and testamentary capacity, the propounder of the will is aided by a rebuttable presumption. 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.
5. This presumption “simply casts an evidential burden on those attacking the will.”
6. The evidential burden can be satisfied by introducing evidence of suspicious circumstances – namely, “evidence which, if accepted, would tend to negative knowledge and approval or testamentary capacity. In this event, the legal burden reverts to the propounder.”
7. The existence of suspicious circumstances does not impose a higher standard of proof on the propounder of the will than the civil standard of proof on a balance of probabilities. However, the extent of the proof required is proportionate to the gravity of the suspicion.
8. A well-grounded suspicion of undue influence will not, per se, discharge the burden of proving undue influence on those challenging the will: It has been authoritatively established that suspicious circumstances, even though they may raise a suspicion concerning the presence of fraud or undue influence, do no more than rebut the presumption to which I have referred. This requires the propounder of the will to prove knowledge and approval and testamentary capacity. The burden of proof with respect and fraud and undue influence remains with those attacking the will.

[53] The principles pertaining to allegations of undue influence were addressed by Wilson J. in Geffen v. Goodman Estate, [1991] 2 S.C.R. 353, at pp. 369-70 as follows:

What then must a plaintiff establish in order to trigger a presumption of undue influence? In my view, the inquiry should begin with an examination of the relationship between the parties. The first question to be addressed in all cases is whether the potential for domination inheres in the nature of the relationship itself. This test embraces those relationships which equity has already recognized as giving rise to the presumption, such as solicitor and client, parent and child, and guardian and ward, as well as other relationships of dependency which defy easy categorization.

Having established the requisite type of relationship to support the presumption, the next phase of the inquiry involves an examination of the nature of the transaction. When dealing with commercial transactions, I believe that the plaintiff should be obliged to show, in addition to the required relationship between the parties, that the contract worked unfairness either in the sense that he or she was unduly disadvantaged by it or that the defendant was unduly benefited by it. From the court's point of view this added requirement is justified when dealing with commercial transactions because, as already mentioned, a court of equity, even while tempering the harshness of the common law, must accord some degree of deference to the principle of freedom of contract and the inviolability of bargains. Moreover, it can be assumed in the vast majority of commercial transactions that parties act in pursuance of their own self‑interest. The mere fact, therefore, that the plaintiff seems to be giving more than he is getting is insufficient to trigger the presumption.

By way of contrast, in situations where consideration is not an issue, e.g., gifts and bequests, it seems to me quite inappropriate to put a plaintiff to the proof of undue disadvantage or benefit in the result. In these situations the concern of the court is that such acts of beneficence not be tainted. It is enough, therefore, to establish the presence of a dominant relationship.

Once the plaintiff has established that the circumstances are such as to trigger the application of the presumption, i.e., that apart from the details of the particular impugned transaction the nature of the relationship between the plaintiff and defendant was such that the potential for influence existed, the onus moves to the defendant to rebut it. As Lord Evershed M.R. stated in Zamet v. Hyman, supra, at p. 938, the plaintiff must be shown to have entered into the transaction as a result of his own "full, free and informed thought". Substantively, this may entail a showing that no actual influence was deployed in the particular transaction, that the plaintiff had independent advice, and so on. Additionally, I agree with those authors who suggest that the magnitude of the disadvantage or benefit is cogent evidence going to the issue of whether influence was exercised.

The Issues for the Court

[54] The applicant seeks a declaration that the 2007 Will is invalid on the basis of either a lack of testamentary capacity or undue influence on the part of Glenn. I will address these issues in order after addressing a preliminary issue.

Limitation Period

[55] The Testator died on November 15, 2014. Gayle received a copy of the 2007 Will in January 2015 in connection with the respondents’ application for a Certificate of Appointment of Estate Trustee with a Will which, as mentioned, was granted on March 19, 2015. Gayle commenced this application by a Notice of Application dated December 23, 2016. This date was more than two years from the date of the Testator’s death but less than two years from the date on which she received a copy of the 2007 Will. This raises the issue of whether the two-year limitation period under s. 4 of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B (the “Act”) runs from the date of death or the date of receipt of a copy of the 2007 Will.

[56] Glenn asserts that Gayle’s claim is barred by the Act on the basis that her claim was discovered on the date of the Testator’s death, regardless of when it was actually discovered. Gayle argues that the limitation period under s. 4 of the Act is extended to the extent that a cause of action is not discovered until sometime after the date of death. In the present case, she says that the limitation period did not expire until January 2017, after the commencement of her application, based on the fact that she did not discover the existence of the 2007 Will, and its contents, until sometime in January 2015.

[57] For this purpose, the following provisions of the Act are relevant:

4 Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.

5 (1) A claim is discovered on the earlier of,

(a) the day on which the person with the claim first knew,

(i) that the injury, loss or damage had occurred,

(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,

(iii) that the act or omission was that of the person against whom the claim is made, and

(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and

(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).

(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1) (a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.

[58] The limitation issue in this proceeding has been addressed in two decisions of the Superior Court that have been cited to the Court. Each case involved a will challenge on the basis of both a lack of testamentary capacity and undue influence.

[59] In Leibel v. Leibel, 2014 ONSC 4516, 2 E.T.R. (4th) 268, the applicant commenced his application more than two years beyond both the date of death and the date of receipt of a copy of the relevant will. Greer J. held that the application was statute barred.

[60] In the course of rendering her decision, Greer J. stated that the two-year limitation period under section 4 of the Act runs from the date of the testator’s death. Greer J. based this conclusion on the provisions of section 5(2) of the Act and the principle that a will speaks from the date of death. She concluded that, in the context of a will challenge, section 5(2) had the result that a person challenging a will is presumed to have known the facts referred to in section 5(1) (a) of the Act on the date of death unless the contrary is proved.

[61] The respondents argue that Leibel v. Leibel stands for the proposition that the “discoverability principle” does not operate with regard to a will challenge and, accordingly, the limitation period under s. 4 runs from the date of death. I note that the trial judge in Birtzu v. McCron, 2017 ONSC 1420, infra, may also have understood the decision in Leibel v. Leibel in the same manner. I do not agree however for the following reasons.

[62] The analysis in Leibel v. Leibel appears in paragraphs 35-39 and 50-53 as follows:

Since a Will speaks from death, namely June 4, 2011, Blake’s Application is out of time under the Act. No steps were ever taken by Blake to extend the period under the Act. All Blake’s actions and his receipt of the proceeds of various bequests to him, were steps which said to the Estate Trustees that Blake accepted the terms of the 2011 Wills.

Blake had legal advice when he lent the monies to Alros, so that the taxes could be paid in the Estate. He knew that there were no large amounts of cash available in the Estate. He knew that one of Eleanor’s assets would have had to be sold, in order to raise the money to pay CRA. The sale of the residence by the Estate Trustees for Blake, allowed him to have some money within the first year of Eleanor’s death. He agreed, on legal advice, to advance some of that money to Alros, a corporate entity under the Ellieco corporate umbrella, to pay those taxes.

Although subsection 16 (1) (a) of the Act says there is no limitation period in respect of a proceeding for a declaration if no consequential relief is sought, Blake’s will challenge claims consequential relief in that it asks for an Order revoking the grant of the Certificate of Appointment of Estate Trustees with a Will issued to Roslyn and Lorne, asks for an Order removing them as Estate Trustees, asks for an Order that they pass their accounts as Estate Trustees, and for an Order appointing an Estate Trustee During Litigation. In addition, Blake asks for declarations relating to the revocation of Eleanor’s December 12, 2008 Wills and for an Order in damages in negligence against Ms. Rintoul and her law firm, and for Orders disclosing Eleanor’s medical records and her legal records. Consequential relief is clearly sought by Blake.

In applying the “discoverability principle,” Blake had the knowledge to commence a will challenge on or before July 31, 2011. By that date he knew the following facts:

(a) Prior to Eleanor’s death Blake knew that Eleanor had recovered from lung cancer but now had brain cancer.

(b) He knew Eleanor had changed her previous Wills.

(c) He knew the date of Eleanor’s death, as Lorne had called him and Cody on that date.

(d) He received copies of the Wills prior to July 31, 2011, and he knew who the Estate Trustees were under the Wills.

(e) He knew what Eleanor’s assets were. He had at least a sense of her income, as she had been sending him monthly cheques before the date of her death and had a sense of the value of her assets.

(f) He signed corporate documents for a company now owned by her Estate prior to July 31, 2011.

(g) He had communicated with Ms. Rintoul about his concerns and she gave him the names of three estates counsel to consider, as independent legal advisors.

Blake, therefore, had all of the information needed to begin a will challenge. He chose, instead, to take many of his benefits under the Wills before he commenced his Application.

In my view, the date from which the limitation under the Act began running, was the date of Eleanor’s death, June 4, 2011. See: Lawless v. Anderson, 2011 ONCA 102 p a r as. 22 and 23 respecting the discoverability principle and how it is applied by the Court. As was noted by Mr. Justice D.M. Brown, at first instance in that case, at para. 58, 2010 ONSC 2723, “Limitation periods do not begin to run when one determines that a claim is winnable or viable; they begin to run when one discovers the material facts necessary to plead a reasonable cause of action.” Blake had enough material facts by July 21, 2011 to commence an action.

It seems to me that Blake, by early September 2013, decided that he had not received enough benefit under Eleanor’s Wills and he did not want to share the residue with Cody. He therefore launched his Application.

In my view, with the passage of the new Act in 2002, the Legislature placed a two-year limitation on the bringing on of actions, subject to the discoverability principle, in order to prevent exactly what Blake is trying to do, that is, circumvent the limitation by claiming, late in time, that the 2011 Wills were invalid. To say that every next-of-kin has an innate right to bring on a will challenge at any time as long as there are assets still undistributed or those that can be traced, would put all Estate Trustees in peril of being sued at any time. There is a reason why the Legislature replaced the six-year limitation in favour of a two-year limitation.

Blake’s Application dated September 5, 2013, is more than two years after Eleanor’s death and I find it to be statute-barred.

[63] As I understand the analysis in Leibel v. Leibel, because a will is effective as of the date of death, section 5(2) creates a presumption that an applicant has knowledge of the contents of the will on such date. Given this presumption, an applicant with knowledge at the date of death of a will, and its contents, together with all other facts upon which a claim for lack of testamentary capacity would be based would therefore be fixed with all necessary knowledge as of that date. In such circumstances, the date on which such a claim would have been discovered for the purposes of section 5(1) (a) would be the date of death. The same principle would appear to operate with respect to any claim for undue influence.

[64] However, the foregoing analysis does not exclude the operation of the “discoverability principle” in the circumstances where an applicant can establish that he or she did not know of the matters referred to in section 5(1) (a) on the date of death. In that case, the presumption in section 5(2) would be rebutted and the “discoverability principle” would be operative. Consistent with this analysis, it is clear from paragraphs 39 and 52 of Leibel v. Leibel that Greer J. expressly applied the “discoverability principle” in reaching her determination in that decision.

[65] In Birtzu v. McCron, 2017 ONSC 1420, 24 E.T.R. (4th) 14, Bloom J. found that the limitation period started after the date of death on facts that are not entirely clear. However, it appears that, sometime after the date of death, the applicant’s lawyer sent a letter to the respondent’s counsel asserting a lack of capacity based on dementia and demanding that the respondent turn over the assets of the estate by a certain date or face legal action. Bloom J. held that the limitation period ran from the latter date when the respondent failed to comply with the demand.

[66] While the analysis in Birtzu v. McCron is more difficult to discern, in paragraph 48, the trial judge expressly applied the “discoverability principle” in reaching his decision that the action was statute barred:

On the basis of evidence which I will now review, I have come to the conclusion that on the application of s. 5(1) (b) the limitation period expired at latest two years after July 22, 2009, and thus the action is statute barred, since the statement of claim was not issued until August 18, 2011.

[67] Accordingly, I conclude that each of Leibel v. Leibel and Birtzu v. McCron reach the conclusion that, while the limitation period in respect of a will challenge is presumed to commence on the date of death of a testator for the purposes of s. 4 of the Act, the “discoverability principle” is not ousted if the presumption is rebutted. The fact that a will speaks from the date of death – that is, that the act upon which a will challenge is based occurred on the date of death in the form of the effectiveness of the will – does not necessarily imply that a claimant will have all the facts upon which such a will challenge is based as of such date. Section 5(2) of the Act establishes a presumption which, if rebutted, brings in the operation of the “discoverability principle”.

[68] I would add that, insofar as Greer J. addressed the date of death as the commencement of the limitation period under the Act, she appears to have done so in response to the applicant’s argument in Leibel v. Leibel that there was no limitation period whatsoever applicable to a will challenge, rather than with a view to excluding the operation of the “discoverability principle”.

[69] In the present circumstances, Gayle had all the facts necessary to commence her application, on the grounds of both a lack of testamentary capacity and undue influence, before the Testator’s death, with the exception of knowledge of the existence and contents of the 2007 Will. While she had suspicions that a will had been executed in 2007, she was never able to confirm its existence nor was she made aware of its contents until January 2015, after the date of death. Accordingly, Gayle has established that, on the date of the Testator’s death, when the act on which the claim is based occurred, being the effectiveness of the 2007 Will, she did not have knowledge of the existence and contents of the 2007 Will which are essential elements of her application. Gayle has therefore rebutted the presumption in section 5(2) that she had knowledge of the matters referred to in section 5(1) (a) on the day on which the act or omission on which her claim is based occurred. Gayle did not discover the claim in this application until sometime in January 2015, with the result that the two-year limitation period under the Act did not begin to run until that time.

[70] Based on the foregoing, I conclude that Gayle’s claims in this application are not statute-barred by virtue of ss. 4 and 5 of the Limitations Act, 2002.

Testamentary Capacity

[71] Gayle argues that the Testator lacked testamentary capacity when he executed the 2007 Will. I will address this issue by considering the following issues: (1) are there suspicious circumstances regarding the execution of the 2007 Will that reverse the burden of proof? (2) if so, have the proponents of the 2007 Will, being Glenn and Michael, established that the Testator had testamentary capacity? and (3) if not, does the evidence establish that the Testator had testamentary capacity when he executed the 2006 Will?

The Requirements of Testamentary Capacity

[72] The requirements of sound testamentary capacity have been addressed in Palahnuk v. Palahnuk Estate at para. 64 in which Stach J. suggested that they include the following:

• the testator must understand the nature and effect of the will; • the testator must recollect the nature and extent of his or her property; • the testator must understand the extent of what he or she is giving under the will; • the testator must remember the persons that he or she might be expected to benefit under her will; • the testator, where applicable, must understand the nature of the claims that may be made by a person he or she is excluding from the will.

[73] In the present circumstances, the issue is whether the Testator was aware that he was making a will, and of the dispositions of property that were provided for in the 2007 Will, when he executed the 2007 Will.

Are There “Suspicious Circumstances”?

[74] In this case, I have no difficulty in finding that there are a number of suspicious circumstances that collectively suggest that the Testator lacked testamentary capacity when he executed the 2007 Will, including the following.

[75] First, the sequence of events is inconsistent with a considered intention on the Testator’s part to disinherit Gayle. The Demand Letter was issued in September 2005. In the 2006 Will which followed the Demand Letter, Gayle received the Home and an equal share of the residue with Glenn. This would have been the natural time to disinherit her if, as the respondents suggest, the Testator was upset about the circumstances giving rise to the loans to Gayle in 2005. Instead, she received more under the 2006 Will than she did under the 2002 Will. It was only in the later 2007 Will that she was excluded. However, there is no evidence of any event or circumstance in the eight month period between the execution of the 2006 Will and the execution of the 2007 Will that would explain the terms of the 2007 Will. As mentioned, the respondents explain the terms of the 2007 Will by reference to the events in 2005 pertaining to the Demand Letter, which I do not accept for the reasons set out below.

[76] In addition, as a related matter, Gayle was removed as a power of attorney under the 2005 Powers of Attorney but was named as an executor under the 2006 Will. If the explanation for her removal as a power of attorney was the Testator’s alleged concerns expressed in the earlier Demand Letter, as the respondents suggest, I do not think that the Testator would have named Gayle as an executor in the subsequent 2006 Will.

[77] Second, there is reason to doubt that the Demand Letter represented the Testator’s state of mind in September 2005. There are two principal elements to this conclusion.

[78] The events surrounding the delivery of the Demand Letter are highly suspicious. The Testator was admitted to hospital on September 11, 2005 with a mild stroke. He was discharged on September 19, 2006. The evidence is that he was on medication and required rest and nursing care. Notwithstanding these medical circumstances, it is suggested that he attended Woodruff’s office on or about September 26 and instructed her to send the Demand Letter. There are, however, no notes of any meeting between Woodruff and the Testator at that time. Woodruff’s affidavit is entirely silent with respect to the Demand Letter notwithstanding its significance as evidence of the alleged motivation for the Testator’s instructions to Woodruff regarding the 2007 Will. Further, the Demand Letter consistently misspells the Testator’s surname, suggesting that it was drafted by someone other than Woodruff. For clarity, however, while I consider that these circumstances exclude the respondents’ suggestion that the Testator caused the Demand letter to be sent after a meeting with Woodruff in her office, I am unable to determine the actual circumstances of its delivery.

[79] In addition, there is reason to doubt that the Testator was ever concerned about the loans. The uncontradicted evidence of Gayle and Greg is that the Testator held his credit card at all times and approved the purchases directly with the vendors over the telephone. There is no evidence that Gayle ever possessed the Testator’s credit card. There is also evidence that Glenn assumed tight control over the Testator’s finances. In such circumstances, I think it is more likely that Gayle’s assertion that the Testator approved the transactions is correct. Further, Gayle says that when she spoke to the Testator about the Demand Letter, he denied any knowledge of it. More significantly, both the number of transactions, approximately five, and the amount involved – between $7,000 and $8,000 according to Gayle, $12,000 according to the Demand Letter – are very small in comparison with the amount of the residual assets. The evidence suggests that the Testator was a very fair person. In this case, the alleged reaction is not proportional to the circumstances.

[80] Third, I do not think that the evidence establishes, on a balance of probabilities, that the Testator decided to exclude Gayle from the 2007 Will for reasons related to the loans in 2005, even if he was concerned about these loans at that time. Given this finding, there is no event or circumstance in the period prior to the 2007 Will that explains the Testator’s exclusion of Gayle from the 2007 Will.

[81] A principal reason for this conclusion is the finding above that there is reason to doubt that the Demand Letter represented the Testator’s state of mind in 2005. A second reason is that, as mentioned, the sequence of events is inconsistent with the loans in 2005 being the reason for the Testator’s exclusion of Gayle in the 2007 Will. In particular, as mentioned, if the Testator had been upset about the loans, this would have been reflected in the 2006 Will. Lastly, the wording of paragraph 9 of the 2007 Will does not support the respondents’ allegation. Paragraph 9 merely discharges Gayle’s obligation to repay her loans. It does not express any connection between the existence of these loans and her exclusion from any entitlement to a portion of the residue. Moreover, paragraph 9 does not suggest that these loans were not authorized by the Testator or that he was otherwise upset about the circumstances under which the loans arose. It is entirely silent with respect to the alleged concern on the part of the Testator’s for the existence of these loans.

[82] Fourth, the content of the 2007 Will is inconsistent with the Testator’s apparent wishes as expressed in his actions shortly after execution of the 2007 Will. The evidence of both Gayle and Greg is that, shortly after execution of the 2007 Will, the Testator called Gayle expressing concern that he had signed a document, the contents of which he was unaware. While the Testator suspected it was a will, and mistrusted Glenn’s role in having it executed, he was not sure about the nature of the document. Moreover, he had not received a copy of the document notwithstanding that it was his will. Gayle took the Testator to the office of another lawyer in response to the Testator’s concern. Neither Glenn nor Michael contradict any of this evidence. The evidence of each of them is limited to their respective bald statements to the effect that, in their view, the Testator knew exactly what he was doing when he instructed Woodruff to make the 2007 Will and that the 2007 Will represented his true wishes.

[83] Fifth, the content of the 2007 Will is also inconsistent with the Testator’s continuing relationship with Gayle and with his actions in May 2008, ten months later. At that time, he gave Gayle the Deed, among other things, in the belief that this would protect her entitlement to the Home if any other document that he had signed, including a will, would provide otherwise.

[84] Lastly, the 2007 Will is unusually spiteful in another respect. Not only does it disentitle Gayle to any portion of the residue, but it also provided that, in the event Glenn predeceased the Testator, the residue would pass to Glenn’s issue. Again, the evidence is that the Testator balanced the entitlements of his two children and had an ongoing relationship with Gayle’s children. Gayle’s children had nothing to do with the loans to her. There is no explanation in the evidence for this disproportionate treatment of his grandchildren in the event of Glenn’s death.

Have the Proponents of the 2007 Will Established Testamentary Capacity?

[85] Based on the foregoing, the onus of proving that the Testator had the necessary testamentary capacity when he executed the 2007 Will rests with the respondents.

[86] Gayle submits that the respondents have failed to satisfy this onus. She relies principally on the six considerations identified above as suspicious circumstances and on the medical evidence of Dr. Devaraj. The respondents submit that the evidence establishes that the Testator had testamentary capacity. They rely principally on their own observations of the Testator and on the medical evidence of Dr. Varga. I will address these issues by first setting out my conclusion, and the principal grounds upon which I reach that conclusion, and then addressing my reasons for rejecting the respondents’ arguments.

[87] It is a common experience that a person with a deteriorating condition of dementia can experience periods of lucidity punctuated by periods of confusion and a lack of awareness. Moreover, during periods of confusion and a lack of awareness, an individual might still present to a lay person, or a person with only a passing familiarity with the individual, as fully aware of their circumstances.

[88] In this case, Gayle does not suggest that the Testator lacked testamentary capacity at all times in 2007. Instead, she suggests that, by the summer of 2007 if not before, his dementia had reached the state in which he had “good days” and “bad days”. She suggests that he executed the 2007 Will on one of the “bad days”.

[89] The medical evidence of Dr. Devaraj is quite consistent with, if not actually pointing to, such a possibility. While the evidence points to the likelihood that the Testator recovered much of his mental capacity after the stroke in 2002, the evidence also suggests that his mental capacity began to deteriorate commencing some time in 2005 or 2006. By February 2008, Dr. Devaraj noted that his dementia had worsened significantly, as reflected in his 19/30 score on the MMSE test, and his understanding that the Testator was experiencing ongoing memory problems. Given the Testator’s MMSE score in February 2008, it is quite possible that the Testator suffered significant dementia at the time he signed the 2007 Will in July 2007, based on projecting the normal rate of decline as reported in Dr. Devaraj’s affidavit backwards from February 2008 to July 2007. The medical evidence of Dr. Devaraj therefore suggests a real possibility that the Testator experienced an episode of dementia at the time he signed the 2007 Will that excluded testamentary capacity.

[90] The evidence adduced pertaining to the “suspicious circumstances” also supports this conclusion with considerable force. I do not propose to repeat all of the considerations set out above. However, the overall impression based on these circumstances is that the content of the Will is sufficiently inexplicable and out of character for the Testator, based on his previous wills and his relationship with both his children, that it is more probable than not that the Testator was in a confused state and therefore lacked testamentary capacity when he executed the 2007 Will.

[91] In particular, as discussed above, the evidence does not support the respondents’ position that the loans to Gayle explain the provisions of the 2007 Will in her regard for the three reasons discussed above in greater detail. In addition, the Testator’s behaviour following the execution of the 2007 Will is supportive of the conclusion that the testator lacked testamentary capacity when he executed the 2007 Will. He did not know the content of the document that he believed he signed in July 2007 and wished to execute a new will to be certain. Subsequently, in 2008, he gave Gayle the Deed in the belief that it would ensure his testamentary wishes regardless of what he had signed.

[92] In summary, reviewing all of the evidence, I think that the most probable scenario is that the Testator experienced an episode of confusion, possibly accompanied by paranoia, when he executed the 2007 Will and therefore lacked testamentary capacity at that time.

[93] In opposition to this conclusion, the respondents make three principal arguments, which I have rejected for the following reasons.

[94] First, both Glenn and Michael say that, in their experience, the Testator was lucid until 2011 or 2012. This is, of course, self-interested evidence as both received larger distributions under the 2007 Will than under the prior wills. More significantly, their evidence is inconsistent with the medical observations of both Dr. Devaraj and Dr. Varga that the Testator suffered on-going memory problems and required medication to address his dementia condition. It is also inconsistent, among other things, with Glenn’s own statement as recorded in the hospital records made in July 2008 that has been referred to above. While technically hearsay, it is the respondents who have put these hospital records into evidence and who rely upon them.

[95] Second, the respondents suggest that Woodruff’s evidence establishes testamentary capacity. However, I have two problems with her evidence which, in my view, render Woodruff’s evidence unreliable on the issue of the Testator’s testamentary capacity.

[96] First, while Woodruff says she asked typical questions to verify testamentary capacity, there is no evidence of such questions in her notes. The notes refer only to her instructions. Second, as discussed above, the events surrounding the delivery of the Demand Letter are suspicious. Given the foregoing concerns regarding the circumstances pertaining to the delivery of the Demand Letter, I am also not persuaded that Woodruff’s evidence regarding the Testator’s testamentary capacity is reliable.

[97] Lastly, the respondents rely on the medical evidence in the hospital records, principally the records of Dr. Varga, as evidence that the Testator had mental capacity throughout the period until February 2012, when Dr. Varga assessed the Testator as incapable of managing his finances. However, in certain respects, the evidence of Dr. Devaraj and Dr. Varga is consistent. Each doctor reported a condition of at least mild dementia that required medication to be controlled and episodes of paranoia that were also treated by medication. I have broadly relied on this evidence in reaching the conclusions herein.

[98] There is, however, some inconsistency between the results observed by Dr. Devaraj and by Dr. Varga, based largely on the MMSE scores that Dr. Varga obtained, that must be addressed. On balance, I accept the evidence of Dr. Devaraj over that of Dr. Varga for the following reasons.

[99] First, Dr. Devaraj’s observations are more closely linked in time to the events of 2007 and 2008. Dr. Devaraj last saw the Testator on February 7, 2008. He reported that the Testator’s condition had worsened significantly and that he scored 19/30 on the MMSE test. Dr. Varga’s reports begin ten months after Dr. Devaraj’s last meeting with the Testator. At that time she reported that he scored 24/27 on the MMSE test. This would appear to be an error, as the test is apparently scored out of 30. It is therefore also unclear what to make of this score.

[100] Second, Dr. Devaraj conducted an examination of the Testator and made a diagnosis pertaining to his mental condition. It is not clear that Dr. Varga actually examined the Testator, apart from administering the MMSE test, and, in any event, she did not make a formal diagnosis. As such, Dr. Devaraj’s assessment was more detailed than that of Dr. Varga. Further, as noted above, the MMSE is not a substitute for an actual diagnosis. I therefore do not think it is appropriate to place significant reliance on the MMSE scores.

[101] Third, Dr. Devaraj provided an affidavit and was cross-examined. Dr. Varga did not, with the result that the Court is required to interpret Dr. Varga’s notes, which imparts imprecision to the probative value of the notes.

[102] Based on the foregoing, I conclude that the respondents have failed to satisfy the onus on them to prove that the Testator had testamentary capacity when he executed the 2007 Will. Accordingly, the 2007 Will is set aside.

Testamentary Capacity in Respect of the 2006 Will

[103] Given the determination above, it is necessary to address whether the 2006 Will is valid. In this respect, the following considerations are relevant.

[104] First, the respondents have not raised any issue regarding the Testator’s testamentary capacity in executing the 2006 Will.

[105] Second, in my view, the evidence does not raise any “suspicious circumstances” regarding the Testator’s testamentary capacity at the time of execution of the 2006 Will. In these circumstances, the 2006 Will is presumed to be valid and the onus of establishing otherwise rests with the respondents.

[106] Third, the Testator’s actions up to and including the date of execution of the 2006 Will are consistent with a continuing relationship with Gayle, apart from the Demand Letter which, as addressed above, is out of character for the Testator and which I do not consider to be evidence of the Testator’s state of mind in September 2005 for the reasons set out above.

[107] Fourth, the evidence of Dr. Devaraj suggests, based on his assessment of the Testator in February 2008 that any material deterioration in the Testator’s mental capacity would not have begun before 2006. While the medical evidence suggests that the Testator might have been suffering from mild dementia by this time, this condition was regulated by medication. Moreover, after the Testator’s recuperation from the 2002 stroke, there is no evidence of any episode of confusion up to the time of execution of the 2006 Will.

[108] Fifth, the issue for the Court is not whether the Testator would have lacked testamentary capacity at all times in November 2006. Rather, the issue is whether, given the possibility of an episode of confusion and lack of awareness, there is any evidence that this occurred at the time of execution of the 2006 Will. There is no such evidence in the record. The most recent medical evidence is that of Dr. Devaraj who had seen the Testator over a year earlier. Neither party suggests that, while Dr. Devaraj diagnosed mild dementia in September 2005, the Testator lacked testamentary capacity in November 2006.

[109] Sixth, the disposition of the House in the 2006 Will is consistent with the Testator’s apparent intention in giving Gayle the Deed in 2008.

[110] Based on the foregoing, I conclude that the evidence before the Court does not negate the presumption of validity of the 2006 Will. Accordingly, Gayle is entitled to an order that the 2006 Will be restored as the true last will and testament of the Testator.

Undue Influence

[111] Based on the foregoing, it is not necessary to address the alternative claim of undue influence. I have however addressed this issue in case I have erred in reaching the foregoing determination.

[112] As a preliminary matter, the issue of undue influence in this case is complicated by the relationship between Gayle and Glenn, which Gayle characterizes as one of bullying and lack of respect for her since childhood. Regardless of the truth of these allegations, the issue of undue influence is limited to whether Glenn’s relationship with the Testator involved Glenn’s coercion of the Testator. Glenn’s relationship with Gayle is relevant only to the extent that his character, as revealed in that relationship, could have had a bearing on his relationship with the Testator.

Was the Testator in a Vulnerable Relationship in respect of Glenn?

[113] The evidence indicates that the Testator became increasingly isolated after his stroke in 2002 for several reasons. The Testator chose to remain in his house, living independently after his discharge from the hospital. As a result of the stroke, he lost his driver’s licence. As a consequence, his contact with other persons apparently became restricted to visitors to the house, being Glenn, Michael and Gayle.

[114] Further, the Testator became dependent on Glenn or Gayle driving him in order that he could do his shopping and his banking. The evidence also indicates that Glenn had substantially more contact with the Testator than Gayle. Because Gayle lived some distance away and had her own family, her visits were limited to approximately one visit per week. Glenn lived closer and apparently visited on almost a daily basis and, on occasion, slept over at the Testator’s house. While Michael suggests that the Testator continued to visit his house, it is not clear how this could have occurred without Glenn driving him.

[115] As a result, in my view, the Testator became increasingly dependent on Glenn and, in that sense, vulnerable. For his part, Glenn also became more controlling of his father’s activities, including in particular, over his father’s finances. It is also relevant for present purposes that Glenn was an individual who expected to get his way and became angry when he did not. This lessened the Testator’s capacity for independent action and increased the Testator’s vulnerability as he relied heavily on Glenn for support. This vulnerability was heightened by the fact that, from 2006, the Testator had begun to suffer dementia and confusion.

[116] In such circumstances, the law presumes that an individual is in a vulnerable relationship and that, therefore, a potential for undue influence exists. Accordingly, the respondents have the onus of rebutting the presumption of undue influence.

Have the Respondents Rebutted the Presumption of Undue Influence?

[117] The respondents argue that the evidence regarding the execution of the 2007 Will before Woodruff rebuts the presumption of undue influence. They say that Glenn was not present when Woodruff interviewed the Testator or when she read him the will and he signed it. They also say that there is no evidence that Glenn bullied him or influenced him in any way.

[118] In my view, this argument fails to address the entirety of the situation that the Court must consider in the following respects.

[119] First, the evidence of Greg and Gayle indicates that Glenn was a bully who became mean and aggressive when he didn’t get what he wanted. I see nothing in the evidence to contradict this suggestion.

[120] Second, as mentioned, the evidence suggests that the Testator increasingly relied on Glenn. He was therefore increasingly in a position in which he was unable to oppose Glenn’s wishes.

[121] Third, as mentioned above, there is no evidence from Woodruff regarding the circumstances of the Demand Letter. For the reasons set out above, there is a real possibility that Glenn instructed Woodruff, or someone else at her law firm, to write the Letter purporting to act on the Testator’s behalf. If this were the case, it is also possible that he pressured the Testator into re-writing his will in July 2007. At a minimum, it is quite possible that Glenn encouraged the Testator to think ill of Gayle which then triggered, or fed, an episode of paranoia.

[122] Fourth, as discussed above more fully, there is no compelling reason for the Testator’s change of instructions in the 2007 Will. The evidence of the Testator’s relationship with Gayle both before and after the execution of the 2007 Will suggests that it is at least possible that Glenn encouraged the Testator to change his will in July 2007.

[123] The issue for the Court is therefore whether, notwithstanding the foregoing considerations, the respondents have rebutted the presumption of undue influence that arises based on the finding that the Testator was in a vulnerable relationship with Glenn.

[124] In my view, notwithstanding the foregoing circumstances and considerations, the respondents have rebutted the presumption of undue influence for the following reasons. First, there is no evidence that Glenn ever suggested to the Testator that he should revise his will in the manner of the 2007 Will. Second, while there is reason to question whether the Demand Letter represents the Testator’s state of mind in September 2005, the Court cannot draw an inference that Glenn coerced the Testator into sending the Letter on the basis of the evidence in the record. Third, the evidence of Glenn’s character – specifically that he was a bully who became angry when he did not get his way – does not, on its own, justify an inference of undue influence over the Testator. To establish undue influence, such behaviour must be accompanied by evidence of an actual attempt to influence the Testator’s actions. However, as noted, there is no such evidence suggesting that Glenn exerted pressure in some manner over the Testator to procure the 2007 Will.

[125] Based on the foregoing, I therefore find that Gayle has failed to establish, on a balance of probabilities, that the 2007 Will was executed by the Testator when he was subject to undue influence on the part of Glenn.

Conclusion

[126] Based on the foregoing, the 2007 Will is set aside as being invalid by reason of a lack of testamentary capacity and the 2006 Will is restored as the true last will and testament of the Testator.

Costs

[127] If the parties are unable to agree on costs, they shall have thirty days to provide written costs submissions not exceeding five pages in length accompanied by a costs outline as required by the Rules of Civil Procedure.

Wilton-Siegel J. Date: November 2, 2018