Court File and Parties

Court File No.: 05-004/15 Date: 2019-03-26 Ontario Superior Court of Justice

Between: HELEN PIEKUT Applicant/Responding Party on Krystyna Romoli’s motion/Moving Party on cross-motion – and – KRYSTYNA ROMOLI and VICTOR WROBLEWSKY Respondents/Moving Party (Krystyna Romoli)/Responding Party (Krystyna Romoli) on Helen Piekut’s cross-motion

Counsel: Jonathan M. Friedman, for the Applicant/Responding Party on Krystyna Romoli’s motion/Moving Party on cross-motion Romeo D’Ambrosio, for the Respondent Krystyna Romoli/Moving Party/Responding Party on Helen Piekut’s cross-motion Paul Trudelle, for the Respondent Victor Wroblewski

Heard: January 10, 2019

Reasons for Decision

Dietrich J.

[1] Stanislaw and Jadwiga Wroblewski worked hard during their lifetimes and amassed various real properties, which they managed for as long as they were able. They had three children, namely, Helen Piekut, Victor Wroblewski, and Krystyna Romoli. Mrs. Wroblewski predeceased her husband. All three children survived their father.

[2] A dispute arose among the children regarding testamentary documents signed by their late parents relating to properties municipally known as 1577 Dundas St. W. and 1579 Dundas St. W., in the City of Toronto (the “Dundas St. properties”). Stanislaw Wroblewski is the registered owner of these properties.

[3] Krystyna asserts that her parents made a gift of the Dundas St. properties to her either by way of a gift during their lifetimes or by way of codicils executed by each of them on July 30, 2006. Helen and Victor dispute that any such gift was made.

[4] Helen brought an application before this court on January 13, 2015, which she amended with the consent of the respondents on June 11, 2018. In Helen’s application, she seeks the court’s determination and declaration as to whether the codicils are valid or invalid.

[5] Krystyna brings this motion for summary judgment seeking the dismissal of Helen’s application on the basis that it is statute-barred pursuant to the Limitations Act, S.O. 2002, c. 24, Sched. B.

[6] Helen brings a cross-motion for summary judgment on her application.

[7] Victor brought a cross-application in support of Helen’s January 13, 2015 application, which he has since withdrawn. He takes no position on Krystyna’s motion and Helen’s cross-motion.

[8] For the reasons that follow, I find that Helen’s application is not barred by the Limitations Act. I further determine and declare that the codicils are invalid.

Issues

[9] The issues in this motion and cross-motion are:

1. Is Krystyna’s motion appropriate for summary judgment?
2. If yes, is Helen’s application barred by the Limitations Act?
3. Is Helen’s cross-motion appropriate for summary judgment?
4. If yes, are the codicils valid or invalid?

Factual Background

[10] On February 2, 2001, each of Mr. and Mrs. Wroblewski executed a Last Will and Testament prepared by their solicitor, Stanley Shier. Under the terms of these wills, each of them appoints Helen, Victor and Krystyna to be the Executors and Trustees of his or her estate, and each leaves the residue of his or her estate to the surviving spouse if he or she survives the deceased spouse for 30 days. If the spouse does not survive the deceased for 30 days, each will provides that the contents of the residence at 17 Warwood Road in the City of Toronto are bequeathed to Helen; a truck is bequeathed to Victor; and the residue of the estate is divided equally among Helen, Victor and Krystyna. None of Helen, Victor or Krystyna disputes the validity of these wills.

[11] On August 13, 2003, Dr. M. Varga, Chief – Geriatrics Service Department of Long-Term Care Community Health Centre, assessed Mr. Wroblewski for cognitive impairment. In Dr. Varga’s report she describes Mr. Wroblewski as an “illiterate labourer” whose score on a mini-mental status examination is 11/29. Dr. Varga classifies Mr. Wroblewski as being in the “severely impaired range” and concludes with a statement that Mr. Wroblewski has a “severe dementing disorder of an Alzheimer’s type.”

[12] In February of 2006, Mrs. Wroblewski transferred real property owned by her at 1701 Dundas St. in Toronto, Ontario, known as the “St. Clarens property”, to Victor.

[13] On July 26, 2006, Mrs. Wroblewski and Victor (purportedly on behalf of his father) signed a letter respecting the wills of Mr. and Mrs. Wroblewski stating that no further changes were to be made to the wills without the knowledge of their accountant, Mr. Sheldon Shore, and their solicitor, Stanley Shier. Victor deposed that he believes that a copy of this letter was sent by Mr. Shore to each of Helen and Krystyna at that time.

[14] Krystyna alleges that, on July 30, 2006, each of her parents executed a declaration of gift and a codicil, and together they executed a “joint” codicil.

[15] The codicil executed by each of Mr. and Mrs. Wroblewski, respectively, is partly typewritten and partly handwritten. Excluding the attestation clause, the signatures of the testator or testatrix, and the signatures and addresses of the witnesses, each codicil reads as follows (the handwritten portions appearing in italics):

[16] THIS IS THE CODICIL to the Last Will and Testament of me, [STANLEY/JADWIGA] WROBLEWSKI of the City of Toronto, which Will is dated the 30 day of July, 2006.

1. I WISH TO GIFT MY DAUGHTER, KRYSTY ROMOLI, the PROPERTY 1577 DUNDAS ST W AND 1579 DUNDAS ST W.
2. (sic) In all other respects I confirm my Will.

IN TESTIMONY WHEREOF I have to this Codicil to my Last Will and Testament, written on this page, subscribed my name this 30 th day of July, 2006.

The codicil is signed by the testator/testatrix and two witnesses. Krystyna admits that the handwriting portion of the codicils (other than the signatures and addresses of the witnesses) is hers.

[17] The “joint” codicil contains the very same language as shown above, but substitutes the individual testator’s/testatrix’ name with “Stanley & Jadwiga”, typewritten. It is signed by both Mr. and Mrs. Wroblewski. The witnesses’ signatures are similar to the signatures on the other codicils. Krystyna admits to having cut and taped certain information, including her parents’ names, onto the joint codicil document and then photocopying it for execution.

[18] Each of Mr. and Mrs. Wroblewski, separately, executed another document, which Krystyna describes in her evidence as a “Declaration of Gift.” This document is wholly in handwriting and reads as follows (not including the respective signatures of each of Mr. and Mrs. Wroblewski and the signatures and addresses of the witnesses):

JULY 30/2006 I, [JADWIGA/STANLEY] WROBLEWSKI WISH TO GIFT THE PROPERTY 1577 AND 1579 DUNDAS ST W., TO MY DAUGHTER KRYSTY ROMOLI.

Each such document is signed by Mr. or Mrs. Wroblewski, respectively, and allegedly witnessed by the same persons who witnessed the signing of the codicils. The witnesses’ addresses appear in handwriting beneath their signatures.

[19] It is not disputed that the signatures on all of the documents in issue, allegedly made on July 30, 2006, are in fact the signatures of Mr. and Mrs. Wroblewski, respectively.

[20] It is also not disputed that the witnesses are Henri Kuntz, a personal friend of Krystyna and a former tenant who resided in a property owned by her, and Krystyna Holuvowicz, a former personal support worker for Mr. and Mrs. Wroblewski. Mr. Kuntz has since died and Krystyna has been unable to locate Ms. Holuvowicz.

[21] On August 8, 2006, Helen, Victor and Krystyna entered into a one-page agreement, handwritten by Krystyna, in which it is agreed that Victor will return the St. Clarens property to his parents and he will be paid an annual salary to maintain, repair and supervise the St. Clarens property as well as the real properties owned by their parents, including the Dundas St. properties and a property at 1970 Keele St. in Toronto, Ontario.

[22] On December 28, 2006, the August 8, 2006 agreement is formalized and expanded into a 6-page typewritten agreement and signed by each of Helen, Victor and Krystyna. Among other things, the agreement specifically states that: i) Mr. Wroblewski is the registered owner of the Dundas St. properties; ii) on the death of the survivor of Mr. and Mrs. Wroblewski, the parties will not sell any of the said properties without the unanimous consent of the parties; and iii) Victor’s salary of $50,000 and his expenses for maintaining the properties, following their parents’ deaths, will be paid out of the rental income from the said properties.

[23] At the time the agreement among the siblings was being discussed and prepared, Krystyna did not disclose the existence of any of the codicils or the declaration of gift documents signed by her parents on July 30, 2006.

[24] On December 29, 2006, Victor transferred the St. Clarens property back to his mother.

[25] On August 29, 2007, Dr. Leszek Marchow wrote a letter to Mrs. Wroblewski following her attendance at his office and confirmed his clinical impression that she could no longer “attend to a rather complicated business on a day to day basis” and recommended that “someone else take over all responsibilities. Subsequently, your children, who have authorized power of attorney, can easily alleviate your burden.”

[26] Mrs. Wroblewski died on or about June 4, 2008 and Mr. Wroblewski died shortly thereafter on or about July 31, 2008.

[27] Having survived Mrs. Wroblewski for more than 30 days, Mr. Wroblewski inherited all the property owned by Mrs. Wroblewski and included in her Last Will and Testament. Neither of their estates has been administered pending the determination of the issues that are the subject of these motions.

[28] Later in 2008, Helen, Victor and Krystyna attended at the law office of Peter Meyrick to discuss the administration of their late parents’ respective estates. It was at that meeting that Krystyna first revealed the existence of the codicils (and the handwritten declarations of gift) to her siblings. Helen responded by refusing to acknowledge the validity of these documents.

[29] It was agreed that Mr. Meyrick would keep the original codicils and the declarations of gift at his office. Having reviewed those documents, Mr. Meyrick advised Helen, Victor and Krystyna that he could not represent any of them in the administration of their parents’ respective estates, and each would need to obtain independent legal advice regarding the codicils.

Issue 1: Is Krystyna’s motion appropriate for summary judgment?

[30] Rule 20.04 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, provides that where there is no genuine issue requiring a trial with respect to a claim or a defence, the court shall grant summary judgment accordingly. Rule 20.04(2) states that the court shall grant summary judgment if: (a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or a defence; or (b) the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment.

[31] Accordingly, the court may grant summary judgment: where the parties agree; where the claim is without merit; or where the motions judge is able to dispose of the matter and the trial process is not required in the interests of justice: Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764 at paras. 41-44.

[32] In Hryniak v. Mauldin, 2014 SCC 7 (Hryniak), the Supreme Court held that the summary judgment rules must be interpreted to favour proportionality and fair access to affordable, timely and just adjudication of claims. In this regard, a trial is not required if the court can make a fair and just determination by making the necessary findings of fact and applying the law to those facts, and if the process is a proportionate, more expeditious and less expensive means of achieving a just result than a trial.

[33] Following the guidance provided in Hryniak, based on the evidence before me, I must determine whether there is a genuine issue requiring a trial, whether I can fairly and justly adjudicate the dispute, and whether the motion is a timely, affordable, and proportionate procedure. If there is no genuine issue requiring a trial, I must grant summary judgment.

[34] In this regard, the evidence need not be equivalent to that at trial, but must be such that the judge is confident that she can fairly resolve the dispute: Hryniak, at para 57.

[35] In Krystyna’s motion to strike Helen’s application on the basis that it is statute-barred there are no material facts in dispute. No additional facts would emerge at trial. The application of an absolute limitation period is generally a fairly straightforward factual analysis. I am confident that, based on the evidence before the court, this matter can be resolved without a trial. Proceeding to trial on this narrow issue would be not be expeditious and would likely result in a costlier means of achieving a just result.

Issue 2: Is Helen’s application barred by the Limitations Act?

[36] The relevant provisions of the Limitations Act are as follows:

Basic limitation period

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.

Discovery

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).

Presumption

(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.

Demand obligations

(3) For the purposes of subclause (1) (a) (i), the day on which injury, loss or damage occurs in relation to a demand obligation is the first day on which there is a failure to perform the obligation, once a demand for the performance is made.

Same

(4) Subsection (3) applies in respect of every demand obligation created on or after January 1, 2004.

No limitation period

16(1) There is no limitation period in respect of,

(a) a proceeding for a declaration if no consequential relief is sought.

Position of the Parties

Krystyna’s Position

[37] Krystyna asserts that Helen had discovered all of the material facts required to commence her application by August 19, 2009, being the date on which, by her own admission, Helen received copies of the codicils. Krystyna asserts that, in addition to having copies of the codicils, Helen believed that the codicils were signed by her parents, she knew that they contained Krystyna’s handwriting and that Krystyna was present when they were executed. She further asserts that Helen sought legal advice within a few months of learning of the codicils, she was aware of the mental state of both parents around the time they executed the codicils and was already in possession of relevant medical records when Krystyna produced the codicils.

[38] Krystyna submits that Helen’s application is, in essence, a will challenge and that a party seeking to challenge a will must do so within two years from the date of the deceased’s death, subject to the discoverability rules in the Limitations Act. In this regard, she relies on Leibel v. Leibel, 2014 ONSC 4516 (Leibel) and Shannon v. Hrabovsky, 2018 ONSC 6593 (Shannon).

[39] Krystyna further submits that Helen cannot rely on s. 16(1)(a) of the Limitations Act for an exemption from a limitation period because Helen is seeking consequential relief in addition to declaratory relief in her application.

Helen’s Position

[40] Helen submits that her application is not statute-barred. She agrees that the Limitations Act provides that, generally, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day in which the claim was discovered. Helen also admits that, while the precise date on which she discovered the codicils is in dispute, she did not commence her application within two years of discovering the codicils. However, she also submits that she did not commence or amend her application with the aim of circumventing applicable limitation periods, but, rather, as a means to ensure that her parents’ wills could be submitted to the probate process and their respective estates properly administered.

[41] Helen submits that when she first saw the codicils, around August 2009, she informed Krystyna that she did not accept their validity. Helen further submits that her application does not challenge the codicils based on a possible lack of testamentary capacity; as such, the two-year limitation period, which applies to will/codicil challenges does not apply in this case. Helen asserts that she is not seeking an order finding the codicils to be invalid based on a lack of testamentary capacity. The only reference to a lack of testamentary capacity in her application appears with reference to her request for alternative relief. There she seeks directions from the court on issues that have been raised relating to the validity and effect of the codicils, including allegations of lack of testamentary capacity.

[42] Helen submits that she is seeking relief in the form of a declaratory judgment. Specifically, are the codicils valid or invalid? She submits that she remains neutral in this determination, but asserts that the declaratory judgment is essential. Without this assistance from the court, the Executors and Trustees cannot agree on the testamentary documents to be submitted to the probate process. In this regard, Helen relies on paragraph 16(1)(a) of the Limitations Act and asserts that she is seeking declaratory relief only and not seeking consequential relief, e.g., an order compelling the Executors and Trustees of her late father’s estate to deal with the Dundas St. properties in a particular way. Helen relies on Skylark Holdings Ltd. v. Minhas, 2017 ONSC 1328 and McMurtry v. McMurtry, 2016 ONSC 2853 (“McMurtry”) in support of her position.

Analysis

[43] In the case of Leibel, at paras. 50-53, Justice Greer held that the limitation period in respect of a will challenge begins to run on the date of death of the testator, subject to the discoverability rules. In a subsequent case involving a will challenge, Birtzu v. McCron, 2017 ONSC 1420 (Birtzu), Justice Bloom confirmed that the limitation period in respect of challenge to a testamentary document is two years, subject to the discoverability rules, and found that once the plaintiffs were aware that the will denied them any benefit and that the deceased suffered from dementia, as reasonable persons, they ought to have known their claim (see para. 50).

[44] In Shannon, at para. 67, Justice Wilton-Siegel concludes that 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, but 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. Subsection 5(2) of the Act establishes a presumption which, if rebutted, brings in the operation of the “discoverability principle.”

[45] Unlike in the cases of Leibel, Birtzu and Shannon, where steps had been taken by the executors and trustees to propound the will in question, no such step has been taken to propound the codicils in this case. It would have been in Krystyna’s interest to do so since she has a vested interest in proving them. Had she brought such an application and had Helen responded to the application with a challenge to the validity of the codicils, the two-year limitation period, subject to the discoverability rules, would have applied. However, in the absence of such an application to prove the codicils, it remains open to Helen to bring an application for declaratory relief.

[46] As noted by Justice Lang, as she then was, in Harrison v. Antonopoulos (2002), 62 O.R. (3d) 463 (S.C.), quoting from Zamir & Woolf: The Declaratory Judgment, 3 rd ed. (London: Sweet & Maxwell, 2002), at para. 26: “a [declaratory] judgment ‘is a formal statement by a court pronouncing upon the existence or non-existence of a legal state of affairs.’ It is restricted to a pronunciation on the parties’ rights.”

[47] I must also consider whether, in addition to the declaration, Helen is seeking consequential relief. The declaration would, naturally, result in consequences for the Executors and Trustees in the administration of their late parents’ estates as well as for them as residual beneficiaries of the estates. However, these consequences are distinct from consequential relief as illustrated in the McMurtry case, in which the facts are not dissimilar to the case at bar.

[48] In McMurtry, Keith McMurtry died owning 10 shares of a company. His son John claimed that his late father had made a gift of these shares to John, which was not completed before he died, but that he, as executor and trustee of his late father’s estate, could complete the gift following his father’s death. Mr. McMurtry’s widow was the residual beneficiary of her late husband’s estate. She claimed that the residue of his estate included the shares. Mrs. McMurtry sought a declaration that she was the lawful owner of the shares and an order directing that the corporate minute book be updated to reflect the proper ownership of the shares. She also sought an order removing John from all positions he held in the company and sought damages against him. Finally, she sought an order for the company’s assets to be valued and liquidated and for a receiver to be appointed. In considering whether Mrs. McMurtry’s claim was for consequential relief and not simply declaratory relief, Justice Corthorn stated at paras. 134-135:

The case law and academic authorities emphasize that “declaratory relief” is to be construed narrowly – specifically because relief in that form is not subject to a limitation period. In the Law of Declaratory Judgments, 3rd. ed. (Toronto: Carswell, 2007) at p. 3, the author introduces the subject as follows:

The essence of a declaratory judgment is a declaration, confirmation, pronouncement, recognition, witness and judicial support to the legal relationship between the parties without an order of enforcement or execution …

If a declaration is merely ancillary to consequential relief which is statute-barred, the entire resource is considered as consequential relief and will fail.

I find that Mrs. McMurtry’s claim with respect to ownership of the Shares is restricted to declaratory relief. Resort to the court for additional relief would not be required for Mrs. McMurtry to enjoy the benefits of ownership of the Shares if she were to be declared the owner. It is the potential for additional resort to the judicial process, and not the potential for additional administrative or other steps to be required, that is meant by ‘consequential’ relief.”

[49] On the distinction between administrative and consequential relief, Justice Corthorn states, at paras. 138 – 140:

It would be open to the executors and trustees to take the steps necessary, in the context of the administration of the estate, to facilitate a transfer, unconditionally, of the Shares from the Estate to Mrs. McMurtry. … An order of the Court requiring the executors and trustees of the Estate to fulfill their obligations would not be required as a consequence of the declaration requested being made. Such an order, if required, would arise from and be consequential to a failure on the part of the executors and trustees of the estate to fulfill their obligations in accordance with the terms of the Will (i.e. as relates to the residue of the estate). Such an order would be based on a cause of action distinct from that upon which Mrs. McMurtry’s claim for declaratory relief is based. … The legal consequences which naturally flow from a declaration which pronounces on a legal position do not constitute “consequential relief .” [Emphasis added.]

[50] I find that Helen’s question with respect to the validity of the codicils is restricted to declaratory relief. She is not seeking consequential relief. She is not asking the court to determine the ultimate beneficiary of Dundas St. properties or to vest the properties in any particular beneficiary or beneficiaries.

[51] Following the declaration as to whether the codicils are valid or not, the next steps would be administrative. The Executors and Trustees of the respective estates of each Mr. and Mrs. Wroblewski would apply for a Certificate of Appointment of Estate Trustee with a Will, if required, and administer the respective estates in accordance with the deceased’s last will (including any valid codicil). Any further order of the court that may be required would arise in the context of the due administration of the estate and not as a consequence of the declaratory relief sought.

[52] Because Helen is seeking a declaration with no consequential relief, I find that Helen’s application is not barred by the Limitations Act.

Issue 3: Is Helen’s cross-motion appropriate for summary judgment?

[53] As noted above, the Rules of Civil Procedure provide that the court shall grant summary judgment if: (a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or a defence; or (b) the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment.

[54] On a motion for summary judgment, I must first determine if there is a genuine issue requiring a trial based only on the evidence in the motion record. I am entitled to assume that each of the parties has “put his best foot forward” and has placed before the court all of the evidence that will be available for trial. If there is sufficient evidence to fairly and justly adjudicate the dispute and a summary judgment would be a timely, affordable and proportionate procedure, summary judgment should be granted. If there may be a genuine issue requiring a trial, I must exercise my discretion to determine whether the need for a trial can be avoided by using the fact finding powers available to me pursuant to rules 20.04(2.1) and (2.2), provided that such use will not be contrary to the interests of justice and will lead to a fair and just result, and serve the goals of timeliness, affordability, and proportionality in light of the litigation as a whole. The fact-finding powers available to the court pursuant to rule 20.04(2.1) allow me to: i) weigh the evidence; ii) evaluate the credibility of a deponent; and iii) draw any reasonable inference from the evidence.

[55] The party moving for summary judgment has the onus of establishing that there is no genuine issue of material fact requiring a trial.

[56] Krystyna submits that summary judgment is not appropriate on Helen’s cross-motion because Helen has not adduced sufficient evidence for the court to determine the validity of the codicils.

[57] It appears that the parties have put before the court all the evidence that is currently available, through affidavits and transcripts of cross-examination. Evidence that would have been helpful to the court in determining the validity of the codicils is not available at this time; but, it is also unlikely to be available at trial. The missing evidence includes the testimony of the persons who allegedly witnessed the execution of the codicils and the declarations of gift and the evidence of the family physician, Dr. Marchow, who treated Mr. and Mrs. Wroblewski. One of the witnesses to the codicils has died and, according to Krystyna’s evidence, the other cannot be found. Also, according to Krystyna’s evidence, Dr. Marchow, has retired and, despite efforts by Krystyna’s counsel, neither he nor his files can be located.

[58] As noted, the court will assume that the parties have placed before it all of the evidence that will be available for trial. A responding party may not rest on mere allegations or denial of the party’s pleading, but must set out in affidavit material or other evidence, specific facts showing that there is a genuine issue requiring a trial: Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200, at paras. 33-34.

[59] Based on the undisputed evidence before the court, and by using the powers available to me pursuant to rule 20.04(2.1) to assess the evidence, I believe I can make a fair determination as to the validity of the codicils, and that this determination does not require a trial. Accordingly, I find that Helen’s application is appropriate for summary judgment, which would provide a timely and proportionate means to a fair resolution of the dispute.

Issue 4: Are the codicils valid or invalid?

[60] Helen, as one of the Executors and Trustees, and a beneficiary, named in each of Mr. Wroblewski’s will and Mrs. Wroblewski’s will, brings her application pursuant to rules 75.01 and 75.06(1) of the Rules of Civil Procedure. Rule 75.01 permits an estate trustee or any person appearing to have a financial interest in an estate to bring an application pursuant to rule 75.06 to have a testamentary instrument that is being put forward as the last will of the deceased proved in such manner as the court directs.

[61] Rule 75.06(1) permits a person appearing to have a financial interest in an estate to apply for directions as to the procedure for bringing any matter before the court.

[62] Proving a will in solemn form requires the propounder of a will to prove, in open court upon notice to all parties having a financial interest in the estate, that the will was duly executed, the testator had testamentary capacity and that the testator had knowledge and approved the contents of the will: Neuberger v. York, 2016 ONCA 191 (Neuberger), at para. 77.

[63] Although the propounder of the will, including a codicil, has the legal burden with respect to due execution, knowledge and approval, and testamentary capacity, the propounder is assisted by a rebuttable presumption. If the propounder can prove that all of the will was executed in compliance with all requisite formalities, after having been read over by a testator, who appeared to understand it, it will generally be presumed that the testator knew and approved the contents and had the necessary capacity: Vout v. Hay, [1995] 2 S.C.R. 876 (“Vout v. Hay”), at para. 27; and Neuberger, at para. 78.

[64] Suspicious circumstances may arise through events: i) surrounding the preparation of the will; ii) tending to call into question the capacity of the testator; or iii) tending to show that the free will of the testator was overborne by acts of coercion or fraud: Vout v. Hay, at para. 25.

[65] Regarding the due execution of a will, which includes a codicil, the Succession Law Reform Act, R.S.O. 1990, c. S.26, provides that a will is not valid unless: a) at its end it is signed by the testator or by some other person in his or her presence and by his or her direction; b) the testator makes or acknowledges the signature in the presence of two or more attesting witnesses present at the same time; and c) two or more of the attesting witnesses subscribe the will in the presence of the testator.

[66] Regarding the amendments to a will or codicil, section 18 of the Succession Law Reform Act provides that unless an alteration that is made in a will after the will has been made is made in accordance with the provisions of the Act governing making of the will, the alteration has no effect except to invalidate words or the effect of the will that it renders no longer apparent. An alternation that is made in a will after the will has been made is validly made when the signature of the testator and subscription of witnesses to the signature of the testator to the alteration, are made: (a) in the margin or in some other part of the will opposite or near to the alteration; or (b) at the end of or opposite to a memorandum referring to the alteration and written in some part of the will.

Position of the Parties

Helen’s Position

[67] Helen submits that her application is necessary to advance the administration of her late parents’ respective estates. It has been over ten years since her parents have passed away and their Executors and Trustees cannot agree on the testamentary documents to be submitted to the probate process. She further submits that Krystyna takes the position that the codicils are valid, but has not taken any step to propound them. Helen admits that she disputes that the codicils are valid, as does Victor.

[68] Helen asserts that the codicils are invalid for the following reasons:

1. The codicils operate to amend wills made by each of Mr. and Mrs. Wroblewski dated July 30, 2006, but there are no such wills.
2. There are no initials next to the handwritten portions of the codicils to indicate that each of Mr. and Mrs. Wroblewski approved the handwritten additions to the preprinted form, which suggests that the handwritten changes could have been added after Mr. and Mrs. Wroblewski signed the codicils.
3. No affidavit of execution has been produced in which one or both witnesses attest to the fact that the both witnesses were present at the same time and at the time each of Mr. and Mrs. Wroblewski signed his or her respective codicil to corroborate Krystyna’s evidence on this point. Therefore there is no evidence as to the execution of the codicils in accordance with formalities set out in the Succession Law Reform Act.
4. There is no affidavit or other evidence from the witnesses to confirm whether any handwritten changes were made to the codicils after they were executed by Mr. and Mrs. Wroblewski.

[69] Helen further submits that the following facts are relevant to determining the validity of the codicils:

1. The fact that Krystyna handwrote the part of the codicils in which the Dundas St. properties were devised to herself raises the specter of suspicious circumstances, as do the facts that Krystyna prepared the codicils and she was present when they were executed.
2. Mr. and Mrs. Wroblewski may have lacked the requisite capacity to execute the codicils.
3. Mr. Wroblewski was illiterate in English and there is no evidence, other than Krystyna’s, that he appreciated what he was signing when he executed his codicils.
4. Krystyna may have unduly influenced Mr. and/or Mrs. Wroblewski to sign the codicils.
5. Krystyna admits to having altered a “precedent” codicil provided to her by her mother to create the codicils her parents signed on July 30, 2006, but Helen doubts the veracity of Krystyna’s testimony on this point. Krystyna deposed that her late mother, of her own initiative, had retrieved a “precedent” codicil from her office and then asked Krystyna to add in the written devise of the Dundas St. properties to Krystyna. Helen submits that Krystyna found a draft of a codicil that had been prepared by Mr. Marek Malicki in 1998 amending her parents’ June 30, 1998 wills and then manipulated it by removing the existing paragraph 1 and replacing it with the handwritten devise of the Dundas St. properties to herself to create the July 30, 2006 codicils. Helen supports this version of events by pointing out that the same paragraphing error appears in the codicils prepared by Mr. Malicki and the codicils signed by Mr. and Mrs. Wroblewski on July 30, 2006; that is, the paragraphs are numbered 1 and 3, as opposed to 1 and 2. Helen submits that these facts also contribute to the suspicious circumstances surrounding the preparation of the codicils.
6. Krystyna has taken no step to propound the codicils or probate the will and codicil for either parent’s estate.
7. Four days prior to the preparation and execution of the codicils, a letter signed by Mrs. Wroblewski was sent to Mr. Malicki, stating that he was not to make any “changes to the properties of the Wroblewski family” without the consent of their accountant Mr. Sheldon Shore, and that no further changes were to be made to their wills without the knowledge of Mr. Stanley Shier, who had prepared their latest wills. Helen submits that Krystyna had received a copy of this letter from Mr. Shier, the lawyer who was then assisting Mr. and Mrs. Wroblewski in their estate planning, prior to the preparation and execution of the codicils.
8. Notwithstanding the contents of the codicils, Krystyna signed an agreement with Helen and Victor, which restricts Krystyna’s ownership interest in the Dundas St. properties to something less than that provided for her in the codicils. The agreement requires her to pay rent for occupying the Dundas St. properties to Mr. Wroblewski’s estate commencing one month after the date of death of the last of her parents to die. Krystyna entered into the agreement with her siblings without disclosing the existence of the codicils or their contents.

[70] Helen submits that it is no longer open to Krystyna to attempt to prove that Mr. and Mrs. Wroblewski had a contrary intention to the intention set out in their wills as the limitation period to bring such an application has expired.

[71] Further, Helen submits that the suspicious circumstances surrounding the preparation and execution of the codicils and tending to call into question the capacity of Mr. Wroblewski shift the burden of proving knowledge, approval and capacity to Krystyna, who wishes to propound the codicils.

Krystyna’s Position

[72] Krystyna does not dispute that the handwriting in the codicils is hers. She submits that when her parents wished to make a gift to any of the children the parent(s) would typically dictate the terms of the gift to the child who would write them down. Then, the parent would review and sign the written document. Krystyna also submits that her mother had a copy of the typewritten “precedent” for the codicils in her office and Krystyna only filled out the handwritten parts of the codicils as instructed by her parents. With respect to the “joint” codicil” she admits to having cut and taped her parents’ names to it and photocopied it for execution by them.

[73] Krystyna also submits that she signed the agreement with her siblings relating to their parents’ real estate in order to create family harmony and so that Victor would have a steady source of income for a number of years.

[74] Krystyna further submits that, owing to Helen’s delay in bringing her application, Krystyna is prejudiced. She can no longer obtain affidavit evidence of Mr. Kuntz, her friend and former tenant who witnessed the codicils, because he passed away in April of 2018 and she has been unable to locate the other witness, Ms. Holuvowicz, who was her parents’ support worker. Also, efforts by her counsel, in 2017, to locate her parents’ family physician, Dr. Marchow, or his medical records relating to her parents, have been fruitless.

[75] Krystyna submits that Helen bears the onus to prove that the codicils are invalid.

Analysis

[76] Though Krystyna, as an Executor and Trustee of her late father’s estate, at any time following his death, could have brought an application before the court to prove the codicils, she did not. Based on the evidence, it is difficult to see how Krystyna could have succeeded in proving that the codicils executed by each of her parents complied with all requisite formalities and that each of her parents had read their respective codicils and appeared to understand them before they executed them. Without this proof, Krystyna cannot rely on the rebuttable presumption that each of her parents knew and approved the contents of their respective codicils: Vout v. Hay.

[77] Further, there were suspicious circumstances that cannot be ignored. Based on Krystyna’s submissions, the evidence relevant to the creation and execution of the codicils would not likely improve at a trial. All the evidence that is available to assist the court appears to have been submitted by the parties. Where the facts are in dispute, I may rely on the fact-finding powers available to me on a summary judgment motion.

[78] Each of the codicils refers to a July 30, 2008 will, but there is no evidence of any will having been executed by either Mr. Wroblewski or Mrs. Wroblewski on that date. No explanation as to why the codicils make reference to this date has been provided to the court. To form part of the respective last wills of each of the late Mr. Wroblewski and Mrs. Wroblewski, the codicils would need to have referenced their respective February 2, 2001 wills.

[79] Further, the only evidence of the wills having been duly executed in compliance with the Succession Law Reform Act is uncorroborated. It comes from Krystyna only and she alone stands to benefit should the codicils be found to be valid. Without affidavit evidence of at least one of the witnesses, there can be no certainty that the witnesses were present at the same time as each other and at the same time as each of Mr. and Mrs. Wroblewski executed their respective codicils, and that no amendments were made to the codicils after they were signed. That evidence is no longer available, at least from Mr. Kuntz, whom Krystyna deposed was someone she was seeing regularly right up to the time of his death in 2018. It ought to have been relatively easy for Krystyna to obtain his evidence in the form of an affidavit of execution at least up until 2015, when, according to Krystyna’s evidence, Mr. Kuntz would not have had the capacity to give such evidence.

[80] Further, the specter of suspicious circumstances is evident from the record before the court. Krystyna, by her own admission, was involved in the preparation of the codicils. She handwrote the dispositive portions of the codicils, which create the devise of the Dundas St. properties to herself. Krystyna deposed that her mother of her own initiative retrieved from her office a “precedent” codicil that she had received earlier. That “precedent” codicil was then used to gift the Dundas St. properties to Krystyna. Helen deposed otherwise.

[81] Using the fact finding powers available to me pursuant to rule 20.04(2.1) of the Rules of Civil Procedure, I am able to evaluate the credibility of a deponent. Having reviewed the evidence of each of Helen and Krystyna, and examined the codicils, I prefer Helen’s evidence on the creation of the codicils. I find that it is more likely than not that Krystyna created the codicils based on a draft codicil prepared by Mr. Malicki to her parents’ June 30, 1998 wills and not from a precedent provided to her my her mother. Apart from the insertion of the testator’s or testatrix’ name, the date at the beginning and the end of the codicils, and the insertion of a different paragraph 1, the three codicils prepared by Krystyna are virtually identical to the draft prepared by Mr. Malicki, including: the error in the paragraph numbering, the format, and the style and size of font. It also appears that the “Ju” of “July, 2006” in the heading of each codicil prepared by Krystyna is typewritten whereas the rest is handwritten. It is likely that “the 30 day of Ju” was preserved from the “30 day of June, 1998” (including the extra space between “30” and “day”) that formed part of Mr. Malicki’s draft and the “ly” was added in handwriting to create “the 30 day of Ju ly.” Also, Mr. Wroblewski’s first name “STANLEY” as it appear in the heading of his codicil is identical in font and size to his first name as it appears under the signature line in the draft prepared by Mr. Malicki. It appears that it may have been cut and taped from a copy of Mr. Malicki’s draft of Mr. Wroblewski’s codicil. Jadwiga’s first name and her full name under the signature line appear in different size and font and were presumably produced and taped into place by Krystyna. A similar cutting and taping of names appears in the “joint codicil, though Krystyna admits to having done some cutting and taping to create this codicil.

[82] Krystyna actively participated in the preparation of the codicils notwithstanding that the evidence is that she had recently received a letter signed by her mother indicating that no further changes should be made to her parents’ wills without the knowledge of their lawyer and accountant. The witness, Mr. Kuntz, was a close personal friend of Krystyna and Krystyna was present throughout the creation and the execution of the codicils. Further, within days of overseeing the execution of the codicils, Krystyna entered into an agreement with her siblings regarding the management of their parents’ portfolio of properties following their deaths and she made no mention of the fact that she alone stood to inherit the Dundas St. properties, putting them beyond of the scope of the agreement.

[83] The evidence shows that at the time the codicils were made and signed, there is good reason to question whether Mr. Wroblewski had capacity to make a codicil. Dr. Varga’s report in August of 2003, three years prior to his execution of the codicils, strongly suggests that it is doubtful that Mr. Wroblewski could have could appreciated the consequences of executing the codicils. In her report, Dr. Varga made note of Mr. Wroblewski’s severe dementing disorder and described him as “illiterate”.

[84] Taken together, I find that the evidence before the court cannot lead to a declaration that the codicils of each of Mr. and Mrs. Wroblewski and the “joint” codicil are valid. There is insufficient evidence to find that the codicils were executed in compliance with the requisite formalities as set out in the Succession Law Reform Act. There is no evidence, other than Krystyna’s uncorroborated evidence, to confirm that the codicils were executed by two witnesses who were present at the same time as each other and at the same time as the testator and testatrix and who saw the latter sign the codicils. There is also no evidence to show that the testator and testatrix reviewed the codicils and signed them in the presence of the witnesses. In addition to the possible non-compliance with the requisite formalities, there is evidence of a probable lack of testamentary capacity on behalf of Mr. Wroblewski, and there are suspicious circumstances surrounding the preparation and execution of all codicils.

[85] It is unlikely that a trial judge would be in any better position to make an assessment on the validity of the codicils. The parties are required, on a summary judgment motion, to put “their best foot forward” or risk a judgment against them. Krystyna had the opportunity to provide corroborative evidence on the execution of the codicils at least while Mr. Kuntz was alive and capable of providing testimony. She did not, despite the fact that she had a vested interest in proving the codicils. On the evidence, she made little effort to locate the other witness, Ms. Holuvowicz. Even with that evidence, there would remain suspicious circumstances surrounding the preparation of the codicils and tending to call into question Mr. Wroblewski’s testamentary capacity.

[86] Based on the evidence before the court, I determine and declare that the each of codicils executed by Mr. Wroblewski and by Mrs. Wroblewski on July 30, 2006 is invalid.

Disposition

[87] Krystyna’s motion for summary judgment is dismissed. Helen is successful in defeating Krystyna’s motion and has succeeded on her cross-motion. She is entitled to summary judgment on her application.

[88] An order shall issue declaring that the codicil of Stanislaw Wroblewski, dated July 30, 2006 is invalid; the codicil of Jadwiga Wroblewski, dated July 30, 2006 is invalid; and the “joint” codicil executed by both Stanley Wroblewski and Jadwiga Wroblewski is invalid.

Costs

[89] The parties have agreed that the successful party on these motions shall be entitled to costs of $35,000 payable from the assets of the estate of Stanley Wroblewski. Accordingly, Helen Piekut shall be entitled to costs of $35,000 payable from the said estate.

[90] Victor Wroblewski submitted a factum in these motions in which he stated that he shall not be entitled to any costs of the motions.

Dietrich J.

Released: March 26, 2019