COURT FILE NO.: 05-148/16 DATE: 20190719 ONTARIO SUPERIOR COURT OF JUSTICE
IN THE MATTER OF THE ESTATE OF FEDELE SILANO, deceased
BETWEEN:
BARBARA SILANO, MARY BENSADOUN and GIULIO SILANO in his personal capacity and in his capacity as the named Estate Trustee of the Estate of Fedele Silano Applicants – and – PASQUALE SILANO in his personal capacity and in his capacity as the named Estate Trustee of the Estate of Fedele Silano Respondent
Counsel: David Morgan Smith, for the Applicants Eddy J. Battiston, for the Respondent
HEARD: March 25, 26 and 27, 2019
DIETRICH J.
Overview
[1] Fedele Silano died on February 2, 2016 at 84 years of age. He was predeceased by his wife Giovanna Silano in 1998. At the time of his death, he was a retired mechanic, living in a house at 23 Burritt Road in Scarborough, Ontario (the “Residence”), which he owned.
[2] Mr. Silano was survived by his four adult children: Giulio Silano (“Giulio”), Barbara Silano (“Barbara”), Mary Bensadoun (“Mary”), and Pasquale Silano (“Pasquale”), and nine grandchildren.
[3] Pasquale and his spouse Trina lived with Mr. Silano at the Residence on and off beginning in 1999.
[4] Mr. Silano made his last will and testament on December 18, 2013 (the “Will”) with the assistance of a lawyer, Steven Bellissimo. It replaced a holograph will prepared by Mr. Silano in his native Italian and signed by him on April 4, 2004.
[5] The principal difference between the two wills is that, under the holograph will, Mr. Silano created a life interest in the Residence for Pasquale, at the end of which the Residence would pass to Mr. Silano’s nine grandchildren named in the holograph will. Under the Will, Mr. Silano left the Residence to Pasquale outright if Pasquale survived him. If he did not, the Residence would pass to Pasquale’s issue in equal shares per stirpes. This difference is the primary source of contention between the applicant Pasquale on one hand, and his three respondent siblings on the other. The grandchildren, all adults, are not parties to the dispute, but have submitted their rights to the court.
[6] Giulio, Barbara and Mary challenged the Will alleging that: Mr. Silano lacked testamentary capacity at the time he made it; he was unduly influenced by Pasquale to make the Will; the Will was not duly executed; and Mr. Silano did not have knowledge of and approve the contents of the Will. At the trial, the applicants did not pursue the first three grounds. They argued only that their father did not have knowledge of and approve the contents of the Will and that there were suspicious circumstances surrounding its preparation.
[7] For the reasons that follow, I do not find that Mr. Silano did not have knowledge of and approve the contents of the Will. The evidence bends toward to the contrary conclusion that Mr. Silano executed the Will with knowledge and approval of its contents.
Background Facts
[8] When Mr. Silano was admitted to hospital in December 2012, following a heart attack, he asked Pasquale to find his holograph will at the Residence. Mr. Silano asked Pasquale to keep the will safe and to take it to a lawyer.
[9] Pasquale contacted Mr. Bellissimo, an Italian speaking lawyer, whose areas of practice included estate planning. Pasquale called Mr. Bellissimo to let him know that his father, Fedele Silano, wanted Pasquale to bring his father’s holograph will to Mr. Bellissimo’s office and that his father wanted to talk to Mr. Bellissimo about his will. Pasquale then dropped the will off at Mr. Bellissimo’s office.
[10] The notarized translation of the holograph will, signed by Mr. Silano, reads as follows:
“I, the undersigned, Silano Fedele, auto mechanic, born in Villanova del Battista, Avellino, Italy, on November 3rd, nineteen-thirty-one, 11/03/1931, declare that I have four children whose names I add herein:
Giulio, born in Foggia on April 19, 1955 Pasquale, born in Accadia on June 21, 1959 Maria Carmella, born in Accadia on October 3, 1964 Anna Barbara, born in Foggia on September 28, 1966
Giulio, for wedding planning had 1,950.00, my will is $7,000.00, and therefore he must have the other $5,050. Pasquale also had $2,000, and therefore, he has to have the other $5,000.00. Maria Carmela had $7,000.00 and she had the other $40,000.00. Anna Barbara had $7,000.00
Now I leave the house to Pasquale as-is for the rest of his life, after his death it will go to all of my grandchildren who are as follows: Giannmarco, Stefano, Francesca, Gabriella, Alexandria, Giuliano and Daniele, Vincenzo and Gianna. I also own a cottage on Lake Scugog and a plot of land in the township of Belmonte: these two properties go to Giulio and Barbara. This is my last will and with this I revoke and annul any other testament of mine. Scarborough, April 4, 2004. “Silano Fedele”
P.S. My only wish, is that you love each other. Your father “Silano Fedele.”
[11] On November 26, 2013, about a week after the holograph will had been dropped off at his office, Mr. Bellissimo called Mr. Silano to discuss his will instructions. There is no evidence of any other instructions having been given by Mr. Silano to Mr. Bellissimo prior to the meeting at Mr. Silano’s home on December 18, 2013, during which the Will was executed.
[12] Mr. Bellissimo drafted the Will. The Will provides that Pasquale and Giulio are appointed as Executors and Trustees. Following a direction to the Executors and Trustees, at subparagraph IV (a) of the Will, to pay the debts of the deceased, paragraph IV (b) provides as follows:
(b) I DIRECT my Trustees to pay or transfer the residue of my estate as follows:
(i) the house municipally known as 23 Burritt Road, Scarborough, Ontario and all of the contents therein to my issue PASQUALE for his own use absolutely; provided that should my issue be dead at the date of my death leaving issue him surviving, his share shall be divided equally per stirpes amongst his issue;
(ii) the Lake Scugog cottage municipally known as 73 Williams Point Road, Caesrea, Ontario and all of the contents therein to my issue PASQUALE for his own use absolutely; provided that should my issue be dead at the time of my death leaving issue him surviving his share shall be divided equally per stirpes among his issue; and
(iii) the Wood Lot, located in the Township of Havelock-Belmont-Methuen, known as 50 – Bel Twp 2nd Line, Part Lot 1, Concession 3, Belmont SRO Part 2, Registered Plan 45R-2756, to my issues, GIULIO, MARIA CARMELLA and ANNA BARBARA for their own use absolutely, provided that should my issue be dead at the date of my death leaving issue him or her surviving, his or her share shall be divided equally per stirpes amongst his or her issue.
For clarity, the above dispositions are made as set out above, as in the past, I have given MARIA CARMELLA and ANNA BARBARA $40,000.00 each to help them with their expenses and paid for GIULIO’S education in Italy.”
[13] Mr. Bellissimo took the Will to Mr. Silano’s home on December 18, 2013 to have it signed. Prior to the Will being signed, Mr. Bellissimo read the Will to Mr. Silano in Italian. When he read clause IV (b)(i), Mr. Silano pointed out that Pasquale did not have any children.
[14] Mr. Bellissimo suggested that he redraft the Will to correct this error and return to have the Will signed at a later date.
[15] Mr. Silano dismissed the inclusion of Pasquale’s issue as “superfluous” and insisted on signing the Will despite Mr. Bellissimo’s urging that the Will be revised to address the reference to Pasquale’s issue.
[16] The Will was signed by Mr. Silano and witnessed by Mr. Silano’s friend and neighbor Rosa Giacci and her son Dino Giacci.
[17] Following the execution of the Will, Mr. Bellissimo wrote to Mr. Silano on February 27, 2014. In that letter he reminded Mr. Silano of the incorrect reference to Pasquale’s issue, of his recommendation that the Will be amended to correct the error, and that he had attempted to meet with him so that he could sign a new will, but Mr. Silano did not get back to him.
[18] At the time of Mr. Silano’s death, his assets consisted of the Residence valued at approximately $650,000; the Lake Scugog cottage, valued at $120,000; the woodlot valued at $75,000; and a TD Canada Trust account with a balance of approximately $34,460, which he owned jointly with Pasquale. His liabilities were pension overpayments of less than $3,500. Pasquale acknowledges that the funds in the bank account belong to Mr. Silano’s estate.
[19] Pasquale has been maintaining the properties listed in the Will and paying the bills relating to them from the joint account.
Positions of the Parties
The Applicants
[20] The applicants Giulio, Barbara and Mary submit that Mr. Silano did not have knowledge of or approve the contents of the Will. In support of this argument they assert that:
- the holograph will was provided to Mr. Bellissimo as a template, which reflected Mr. Silano’s testamentary intentions to be included in the Will, but they were not; accordingly, the Will is not a valid expression of Mr. Silano’s testamentary intentions;
- the holograph will was the only written source of information on which the drafting solicitor relied in preparing the Will;
- Mr. Silano would not have left the Residence to Pasquale outright knowing that Pasquale’s spouse, Trina, with whom he did not get along, could one day inherit it; and
- Mr. Silano was not fluent in English and the Will was written in English.
[21] The applicants further submit that there were suspicious circumstances surrounding the preparation of the Will. In this regard, they allege that: Pasquale had a pre-existing relationship with Mr. Bellissimo; Pasquale made the initial contact with Mr. Bellissimo regarding Mr. Silano’s estate planning; Mr. Bellissimo did not know that Pasquale was living with Mr. Silano when the Will was being prepared; the handwriting of the holograph will was poor and could have been misinterpreted by Mr. Bellissimo; it is unknown whether Pasquale was present when Mr. Silano gave instructions to Mr. Silano over the phone; Mr. Bellissimo did not discuss the values of Mr. Silano’s real properties with him; Mr. Silano was prepared to sign the Will knowing that it contained an error; and Mr. Silano did not appreciate the consequences of that error. These circumstances, they submit, shake the foundation of the Will. They further submit that the existence of these suspicious circumstances shifts the burden of showing that Mr. Silano had knowledge of and approved the contents of the Will to Pasquale, who seeks to propound the Will.
[22] The applicants assert that the evidence demonstrates that, on a balance of probabilities, Mr. Silano’s intention was to leave Pasquale a life interest in the Residence; and on Pasquale’s death, the Residence would pass to Mr. Silano’s nine grandchildren.
Pasquale
[23] Pasquale submits that there is no evidence to support the applicants’ theory that the holograph will was provided to Mr. Bellissimo as a template or that it reflected Mr. Silano’s intentions at the time he made the Will. On the contrary, he asserts that Mr. Silano gave instructions directly to Mr. Bellissimo, by telephone, on November 26, 2013, and Mr. Bellissimo recorded those instructions contemporaneously. These instructions, in Pasquale’s view, clearly evidence Mr. Silano’s intention to leave the Residence to Pasquale outright and not to limit that gift to a life interest in the Residence. He asserts that the instructions given by phone were reviewed by Mr. Silano with Mr. Bellissimo before Mr. Silano signed the Will and his father did not change his mind about what was written in the Will.
[24] Pasquale further submits that the applicants have not raised any suspicious circumstances that would cause the burden to shift to him to show that the testator had knowledge of and approved the contents of the Will.
[25] Pasquale asserts that he has proven that the Will was duly executed in accordance with the requisite formalities; suspicious circumstances have not been raised that would negate Mr. Silano’s knowledge and approval; and therefore, the onus remains on the applicants to prove that Mr. Silano did not have knowledge of and approve the contents of the Will.
Issues
The issues raised in this matter are:
- Were there suspicious circumstances surrounding the preparation of the Will?
- Did Mr. Silano have knowledge of and approve the contents of the Will?
Legal Principles
[26] A will is only valid to the extent that the testatrix knew and approved its contents. As a result, a court may strike out passages or phrases in a will that have been inserted by mistake where it can be demonstrated that the testatrix did not intend or approve those words: See Balaz Estate v. Balaz, [2009] O.J. No. 1573 (“Balaz Estate”) at para. 7, citing with approval Barylak v. Figol, [1995] O.J. No. 3623 (Gen. Div.), paras. 25 and 26 and Feeney’s Canadian Law of Wills (Fourth Edition), § 3.28.
[27] In Balaz Estate, Justice Brown, as he then was, confirms, at para. 9, that: “[t]he Superior Court of Justice exercises exclusive jurisdiction in testamentary matters – it grants probate and interprets wills.” At para. 10, Justice Brown states: “Suffice it to say, where a court seeks to ascertain whether the testatrix knew and approved of certain language in her will, it can take account of the evidence about the circumstances surrounding the making of the will, including referring to earlier wills or drafts of the particular will, as well as direct evidence of her intention [citations omitted].”
[28] As set out in Vout v. Hay, [1995] 2 SCR 876, at para. 26, if a will is 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.
[29] However, the presumption may be rebutted by evidence of suspicious circumstances relating to one or more of: i) circumstances surrounding the preparation of the will; ii) circumstances tending to call into question the capacity of the testator; or iii) circumstances tending to show that the free will of the testator was overborne by acts of coercion or fraud: Vout v. Hay, para. 25. Where suspicious circumstances are present, the presumption is spent and the propounder of the will reassumes the legal burden of proving knowledge and approval: Vout v. Hay, para. 27.
[30] As stated in Neuberger Estate v. York, 2016 ONCA 191: “Vout v. Hay established that if such evidence is adduced, the legal burden reverts to the propounder.” To discharge the burden of proof, the propounder must dispel the suspicious circumstances.
[31] Suspicious circumstances are pieces of evidence which go to a testator’s knowledge and approval. It is the onus of the propounder of the will to dispel all suspicion arising from them before the Court will grant probate: Re Sguigna Estate, 1994 CarswellOnt 2700, 47 A.C.W.S (3d) 1132 at paras. 6-7.
Evidence
Steven Bellissimo
[32] Mr. Bellissimo testified that he was born in Italy and immigrated to Canada in 1957. He spoke Italian at home and also took some classes in Italian at York University. He testified that he is fluent in spoken and written Italian. Having practiced law at a couple of other law firms, he is now a partner at Chappell Partners LLP.
[33] He testified that approximately 15 to 20 percent of his practice involves estates work and that he has many Italian speaking clients. When dealing with Mr. Silano, he spoke “true” Italian, not a dialect, and he testified that Mr. Silano and he had no difficulty understanding one another.
[34] Mr. Bellissimo testified that he did not meet with Pasquale when he dropped off the holograph will and that he has never provided legal services to Pasquale. He recalled having had a chance meeting with him at a golf tournament or a dance. Mr. Bellissimo recalled having been told by Pasquale that he was referred to him by a mutual friend.
[35] Regarding the preparation of the Will, Mr. Bellissimo testified that he called Mr. Silano’s home on November 26, 2013, about a week or so after the holograph will had been dropped off, for the purposes of discussing Mr. Silano’s will. He could not recall whether it was Pasquale or Mr. Silano who answered the phone but confirmed that he spoke with Mr. Silano and that it was he who provided the instructions. He testified that when he spoke with Mr. Silano on the phone that day, he had the holograph will in front of him. Mr. Bellissimo’s notes from that meeting were admitted into evidence.
[36] It is Mr. Bellissimo’s evidence that he reviewed the holograph will with Mr. Silano line by line and Mr. Silano said he wanted to change it. Mr. Bellissimo testified that Mr. Silano shared with him that he was a widower and was concerned about his son Pasquale. During that discussion, Mr. Bellissimo asked Mr. Silano for the dates of birth of his children. He could not recall them, but directed Mr. Bellissimo to the holograph will where, he said, they were all set out.
[37] Mr. Bellissimo testified that he asked Mr. Silano what he wanted to do with his assets. According to Mr. Bellissimo’s evidence, Mr. Silano’s instructions were that the house and cottage were to be left to Pasquale and the woodlot was to be left equally to the other three children, including Mary, who was not a beneficiary of the woodlot under the holograph will. Mr. Bellissimo testified that he asked Mr. Silano why he was leaving so much to Pasquale as compared to his other children. Mr. Silano responded by saying that he had helped his other children a lot but he felt that he had not helped Pasquale enough. Specifically, Mr. Silano explained to Mr. Bellissimo that he had helped his son Giulio get a legal education and had given $40,000 to each of his daughters, which Mr. Silano observed was a greater amount than he had provided for them in the holograph will. Mr. Bellissimo also testified that Mr. Silano told him that Pasquale helped him, especially by taking him to his medical appointments.
[38] Mr. Bellissimo testified that he had no concerns regarding Mr. Silano’s testamentary capacity. He found Mr. Silano to be cheerful and perceived that he was either well-educated or well-read. He observed that Mr. Silano had a good vocabulary and had done a good job on his holograph will.
[39] Mr. Bellissimo testified that Mr. Silano knew the contents of his holograph will and knew the properties he had to distribute. Once he had taken these instructions, Mr. Bellissimo testified that he prepared the Will and had no further discussions with Mr. Silano or Pasquale until the meeting on December 18, 2013 when the Will was executed.
[40] Mr. Bellissimo testified that in the evening of December 18, 2013, he attended at Mr. Silano’s home and was met at the door by Pasquale. Following an exchange of pleasantries, Pasquale then retired to the basement while Mr. Silano and Mr. Bellissimo discussed Mr. Silano’s will in the kitchen. Mr. Bellissimo recalled that he spent an hour or more at the Residence and made notes of the meeting the next day or the day after.
[41] He testified that, at that meeting, Mr. Silano told him about Giulio and the fact that he was a lawyer and then he made some jokes about lawyers. Mr. Bellissimo testified that he withdrew some coins from his pocket and asked Mr. Silano to identify the denominations of the coins and to add up the value. He testified that he does this with his older clients to test their capacity. Mr. Silano reacted somewhat aggressively and said “What is this? A test? I thought you were here to sign the Will.” Nonetheless, according to Mr. Bellissimo’s evidence, Mr. Silano co-operated and was correct in identifying the denominations and stating the total value of the coins. Mr. Bellissimo then produced the holograph will and the Will to be signed. Mr. Bellissimo testified that the Will had not been sent to Mr. Silano in draft so he was seeing it for the first time.
[42] The Will was written in English, but Mr. Bellissimo testified that he read it to Mr. Silano in Italian and he reviewed it with Mr. Silano paragraph by paragraph. When Mr. Bellissimo discussed the provision directing the Executors and Trustees to pay the debts, Mr. Silano said he had none. Mr. Bellissimo explained that these debts included funeral expenses and taxes and Mr. Silano accepted that these would be legitimate expenses. Mr. Silano then observed that a person who sells properties does not need to pay “purchaser’s tax”, demonstrating that Mr. Silano understood that when his executors and trustees sold his properties they would not have to pay land transfer tax.
[43] Mr. Bellissimo testified that he read aloud, word for word, the dispositive section of the Will, which deals with “residue” after the payment of debts, translating from English into Italian. When they got to the provisions regarding the gifts of property to Pasquale, if he survived his father, Mr. Silano remarked that the Will provided a gift over to Pasquale’s issue, if Pasquale predeceased his father, but Pasquale had no children.
[44] Mr. Bellissimo testified that he then told Mr. Silano that the Will should not be signed, but changed to take this fact into account. Mr. Bellissimo’s evidence is that Mr. Silano considered the point and then observed that because Pasquale had no children, the gift over provision was “superfluous.” Mr. Bellissimo testified that he was impressed with Mr. Silano’s use of this word because it demonstrated Mr. Silano’s insight into what was essential to a particular provision and what was not. Mr. Bellissimo’s testified that he nevertheless encouraged Mr. Silano to allow him to revise the Will to address the fact that Pasquale had no issue, but Mr. Silano did not want to wait for a new version of the Will and said “Life is strange … you never know.” suggesting that it was not impossible that Pasquale might have children.
[45] Mr. Bellissimo testified that he discussed with Mr. Silano the provision in the Will that explains why there is an unequal division among Mr. Silano’s children. Mr. Bellissimo’s evidence was that Mr. Silano said that Pasquale “needs help” and that he had given his other children more than he had given Pasquale, and that he had given his daughters more than the legacies reflected in the holograph will. Mr. Bellissimo testified that Mr. Silano wanted to explain why Pasquale was getting more, so he included the paragraph in the Will that sets out the explanation. Mr. Bellissimo further testified that he summarized the remaining provisions of the Will, which primarily dealt with the powers of the Executors and the Trustees. When they got to the signing page, he asked Mr. Silano if anything had been left out and Mr. Silano said “no.” Mr. Bellissimo testified that he asked Mr. Silano, privately, before the witnesses arrived, whether anyone had been telling him what he should do with his property and he confirmed that no one had.
[46] Mr. Bellissimo then called Pasquale to come up from the basement and asked for him to arrange for the neighbours, Rosa Giacci and Dino Giacci, to act as witnesses. At the request of Mr. Bellissimo’s secretary, who had inserted their names into the Will and prepared affidavits of execution, they had been notified in advance that they would be called on to act as witnesses. Mr. Bellissimo testified that before the witnesses arrived he explained to Mr. Silano how wills are witnessed and where his initials and signature would be required. Mr. Bellissimo also testified that Pasquale was not in the kitchen while the Will was being signed and witnessed.
[47] Mr. Bellissimo testified that once the Will was signed, he again recommended that the Will be amended to address the matter regarding Pasquale’s issue. Mr. Silano confirmed that no amendment was necessary. Notwithstanding Mr. Silano’s views, Mr. Bellissimo testified that he called Mr. Silano to discuss revising the Will to remove the reference to Pasquale’s issue but got no reply and, when he reported to Mr. Silano on the Will, in his letter dated February 27, 2014, he again reminded Mr. Silano of his advice to amend the Will to deal with that matter. Mr. Bellissimo testified that he got no reply to his letter or any further instructions from Mr. Silano.
[48] In cross-examination, Mr. Bellissimo was unshaken. I found him to be both professional and credible.
Pasquale
[49] Pasquale was born in Italy in 1959 and came to Canada when he was 10 years of age. After high school, he took courses at University of Toronto for about five years and then did renovation work for a construction company. He has been a safety consultant since 2016. He married Trina in 1999. She operates a spa in Toronto.
[50] Pasquale testified that he has lived in the Residence his entire life with a couple of exceptions. The first was a period of time between 1999 and 2001. He and his spouse Trina moved into the Residence following their honeymoon. There was a falling out between Mr. Silano and Trina; he asked them to leave, and they went to live with Trina’s parents. Eventually, Mr. Silano invited them back. They returned in 2001 and stayed until 2012 when there was another flare-up involving Trina and Mr. Silano, and they returned to her parents’ home to live. Following Mr. Silano’s discharge from hospital in 2013, Pasquale divided his time between the Residence and Trina’s parents’ home because he wanted to be available to assist his father as required. Initially, he spent two to three days per week with his father. His time spent with Mr. Silano increased in 2014 and increased again in 2015 as Mr. Silano’s need for assistance grew. Pasquale testified that Trina stayed with her parents because she was recovering from hip surgery and needed their assistance.
[51] Pasquale described his father as hardworking, naturally very intelligent and shrewd of character. Up until his heart attack in 2012, Pasquale testified, his father as very strong and capable of looking after himself and his properties. He requalified for his driver’s licence at age 82. He described his father as strong-willed and not one to take instructions. He did what he wanted.
[52] After his hospitalization in 2013, Mr. Silano required more assistance. Pasquale testified that, at that time, a caregiver came to the Residence to assist Mr. Silano with light housekeeping and bathing. Pasquale described his father as someone who would have been too proud to permit family members to assist him to bathe. Pasquale testified that he did some dressing changes and drove his father to places he wanted or needed to go two or three times a week.
[53] Pasquale testified that around the time of his father’s hospitalization in 2013, his father asked him to get the holograph will from Mr. Silano’s bedroom to “make it safe.” Pasquale testified that his father asked him to take the holograph will to a lawyer because his father “wanted to make sure it was okay.” Pasquale testified that he dropped the holograph will off at Mr. Bellissimo’s office and he could not recall if Mr. Bellissimo came out to greet him.
[54] Pasquale testified that it was he who answered the phone when Mr. Bellissimo called to get instructions from Mr. Silano on his will. He testified that his father was in the living room when he gave instructions to Mr. Bellissimo over the phone, but Pasquale was not present. He further testified that his father would not have had the holograph will in front of him because the original had been delivered to Mr. Bellissimo and there were no copies.
[55] In cross-examination, Pasquale agreed that his father’s handwriting was difficult to read and that it was possible that the holograph will may not have been entirely properly transcribed into English.
[56] Pasquale testified that his father did not discuss with him the instructions he gave to Mr. Bellissimo. However, Pasquale was not surprised to learn that his father had left the house to him because after the holograph will had been delivered to Mr. Bellissimo, his father would say to him, from time to time, “you have the house to do with what you will.” In cross-examination, he testified that he knew that he was entitled to have the house for the rest of his life and that his father did not have to articulate this specifically. He knew by “osmosis” that his father always wanted him to live with him and that his father would leave him the Residence. He testified that “it was just a feeling.” Pasquale also testified that his sisters were also aware that it was their father’s intention that Pasquale would have the Residence for the rest of his life.
[57] Pasquale testified that it may have been him who received the call from Mr. Bellissimo’s office asking that his father provide the witnesses to the Will execution and their names. Pasquale testified that he met with the witnesses, Rosa Giacci and Dino Giacci, rarely, but that his father was a good friend of Mrs. Giacci, a widow, whom he saw practically daily over seven or eight years prior to his death.
[58] Pasquale testified that he was not present for the Will execution or the meeting with Mr. Bellissimo that preceded it and he heard nothing of what his father and Mr. Bellissimo discussed regarding the Will. He did speak with Mr. Bellissimo briefly when he left the house following the Will execution. He recalled Mr. Bellissimo telling him that his father was a “sharp guy.”
[59] Pasquale testified that after Mr. Bellissimo left the Residence, following the Will signing, Mr. Silano made a brief statement in Italian that translates into “free of thoughts” or “no worries” and he expressed contentment that the Will had been completed. He did not mention any error in the Will. Pasquale testified that he learned the contents of the Will from his sisters after his father’s death.
[60] In cross-examination, Pasquale was asked why Mr. Silano would leave the Residence outright to Pasquale knowing that it could, potentially, become the property of his spouse Trina when Mr. Silano did not like Trina and caused her to leave the Residence twice. Pasquale testified that he and his wife left the Residence because of friction between Mr. Silano and Trina and went to live with Trina’s parents. He also testified that he returned to the Residence to assist his father following Mr. Silano’s discharge from hospital. He testified that he did this more out of a desire to assist his father than because his father needed him to be there. Pasquale agreed that his wife did not return with him, but testified that she was unable to, having just had surgery herself and in need of caregiving that her parents were providing. Pasquale testified that Trina and his father had reconciled and that she had come to have lunch at the Residence with him before he died.
[61] Pasquale testified that he knew that his father was aware of the value of the cottage property and the woodlot because he had made inquiries in anticipation of selling them. Regarding the Residence, Pasquale could only assume that his father knew the market value because his father read the newspaper regularly and would have paid attention to real estate prices.
[62] I found Pasquale to be a credible witness. He answered the questions put to him in a forthright manner and his evidence regarding the preparation and execution of the Will was largely consistent with the evidence given by Mr. Bellissimo. His evidence regarding the execution of the Will was in all material respects consistent with the evidence of Rosa Giacci and Dino Giacci.
Rosa Giacci
[63] Rosa Giacci testified as to the execution of the Will and also gave evidence as to the relationships between Mr. Silano and his children. Her testimony regarding the due execution of the Will was not challenged. The applicants concede that the Will was duly executed.
[64] Mrs. Giacci volunteered additional information relating to the testamentary wishes of Mr. Silano which was unsolicited. She testified that Mr. Silano told her that he had made a (holograph) will but he wanted to change it to “help” Pasquale because he had not helped him in the same way that he had helped his other children. She also testified that Mr. Silano told her that his other children did not come to visit him. She testified that Mr. Silano wanted to give the Residence to Pasquale because he was the only child who helped his father.
[65] Mrs. Giacci also testified that Mr. Silano told her that the lawyer had not correctly followed his instructions to make Barbara the recipient of the cottage and that he should change that.
[66] Mrs. Giacci’s evidence is otherwise consistent with Mr. Bellissimo’s evidence. That is, Mr. Silano was deliberate in his decision to benefit Pasquale to a greater extent than his other children. The applicants submit that Rosa’s evidence differs from Mr. Bellissimo’s in one key respect. Mr. Bellissimo’s evidence is that the rationale for benefiting Pasquale more than the others was to equalize the benefits the other children had already received and Mr. Bellissimo included the explanation in the Will. The applicants argue that Mrs. Giacci’s evidence is inconsistent with this statement because she suggested that Mr. Silano’s intention was to punish the other children who did not visit him enough. I do not interpret Mrs. Giacci’s evidence in this way. I do not find that her evidence, in its totality, established any basis for concluding that Mr. Silano intended to punish any of his children through his estate planning. I accept that Mrs. Giacci was simply repeating what Mr. Silano had told her; that is, that he wanted to benefit or “help” Pasquale more than his other children through the Will.
[67] I found Mrs. Giacci to be a credible witness. It was clear that she and Mr. Silano were good friends and comfortable in each other’s company. The evidence is that they saw one another frequently for seven or eight years. It is not surprising that they, as widow and widower, with adult children, would talk to each other about their children in ways that they may not speak to their children directly.
Dino Giacci
[68] Dino Giacci witnessed the Will, together with his mother. He testified, as did his mother, that he was reluctant to witness the Will. He does not speak Italian and did not want to get involved in a neighbour’s business, but, ultimately, he agreed to go with his mother. His evidence regarding the due execution of the Will in accordance with the formalities is consistent with his mother’s evidence on the point. It was not challenged.
[69] His evidence that Mr. Silano spoke highly of Pasquale and disparagingly of his daughters is not helpful in explaining why Mr. Silano chose to benefit Pasquale to the detriment of his grandchildren.
Analysis
Suspicious Circumstances
[70] No witness testified as to the existence of suspicious circumstances. Attempts were made to elicit this evidence in the cross-examination of Mr. Bellissimo, Pasquale and, to a lesser extent, Mrs. Giacci. I am not persuaded that each of the alleged suspicious circumstances raised by the applicants rises to the level of a suspicious circumstance, but, in any event, I find that Pasquale has dispelled any and all alleged suspicious circumstances.
[71] Pasquale’s relationship with Mr. Bellissimo was very casual at best. Each testified that they had had a chance meeting with each other once at a golf tournament or possibly a dance. Mr. Bellissimo was referred to Pasquale by a mutual friend. They were not friends. Mr. Bellissimo testified that he never advised or represented Pasquale as a client.
[72] There is no evidence to suggest that Pasquale was present or dictating to his father the instructions Mr. Silano gave to Mr. Bellissimo over the phone. Notwithstanding that Pasquale was living with his father on a part-time basis when the Will instructions were given and the Will was signed, there is no evidence of any undue influence by Pasquale over his father. The evidence of both Mr. Bellissimo and Pasquale is that Mr. Silano made his own decisions and was not easily persuaded. Both witnesses to the Will, as well as Mr. Bellissimo, confirmed that Pasquale was in the basement when the Will was signed by Mr. Silano in the kitchen upstairs. Mr. Bellissimo also testified that Pasquale was in the basement when the Will was read to Mr. Silano by Mr. Bellissimo and discussed with him.
[73] There is also no evidence before the court to suggest that the holograph will was, in fact, inaccurately translated. However, even if that were the case, the instructions Mr. Silano gave to Mr. Bellissimo over the phone represented a significant departure from the holograph will. The legacies were eliminated altogether, the beneficiaries of the cottage and the woodlot were changed and the gift of the Residence became an outright gift to Pasquale as opposed to a life interest in the Residence. The holograph will became a largely irrelevant document in the drafting of the Will.
[74] Mr. Silano’s intelligence is supported by the evidence. Pasquale’s evidence is that his father would have known the values of the cottage property and woodlot, having done research in anticipation of selling them, and would likely have had a good sense of the value of the Residence from reading the daily newspaper is persuasive.
[75] Regarding the inadvertent reference to Pasquale’s issue, I accept Mr. Bellissimo’s evidence that he wrongly concluded that one or more of the nine grandchildren identified in the holograph will were children of Pasquale and he therefore included the reference to Pasquale’s issue. When the Will was being read to Mr. Silano in Italian, it was he who identified the error in this inclusion of Pasquale’s issue. When Mr. Bellissimo strongly suggested that the Will be changed to correct the error, Mr. Silano objected, noting that the addition was “superfluous.” Mr. Silano wished to sign the Will regardless, musing that it was still possible that Pasquale could have or adopt children by saying “Life is strange … you never know.” In making that statement, it is reasonable to infer that Mr. Silano would have been content for Pasquale’s children (to the exclusion of his other grandchildren) to inherit the Residence if Pasquale predeceased Mr. Silano. At that point, Mr. Silano did not consider the drafting erroneous, but, rather, drafting to cover off a future possibility should it occur.
[76] Mr. Silano’s acceptance of the gift of the Residence to Pasquale as set out in the Will is further evidenced by his reaction to Mr. Bellissimo’s attempts following the execution of the Will to persuade Mr. Silano to have the Will amended and to re-execute it. Mr. Silano had the opportunity to amend the gift to Pasquale to create a life interest in the Residence for him if that was his intention and he did not. In Mr. Bellissimo’s reporting letter to Mr. Silano, dated February 27, 2014, he writes:
We confirm that on reviewing your Last Will and Testament that you advised that your son, Pasquale, did not have any issue. The undersigned recommended that the Will be amended to remove or cross out all references to same, you advised the undersigned not to, as it was “superfluous” and that “life is strange … you never know”. In accordance with your instructions and contrary to the undersigned’s advice, you executed the Last Will and Testament. Subsequent to the execution of the Last Will and Testament, the undersigned further attempted to meet with you to sign a new Will to amend the above, however, you did not get back to us.
[77] Despite Mr. Bellissimo’s efforts, in the period of more than two years between executing the Will and his death, Mr. Silano took no step to change the provisions relating to Pasquale. In a discussion with Mrs. Giacci about the Will, Mr. Silano suggested that the lawyer may have made an error in not providing that the cottage should be left to Barbara, but he did not mention the gift to Pasquale as also being erroneous.
Knowledge and Approval of the Contents of the Will
[78] I find that Pasquale has dispelled each suspicious circumstance raised by the applicants surrounding the preparation of the Will or tending to show that the free will of Mr. Silano was overborne by acts of coercion. The burden of proof to show that Mr. Silano did not have knowledge of or approve the contents of the Will rests with the applicants. I find that the applicants have not discharged this burden.
[79] No witness testified that the testator did not have knowledge of or approve the contents of the Will. The applicants’ argument that the holograph will was intended to serve as a template for an updated will is unsubstantiated. Mr. Bellissimo testified that he had the holograph will in front of him when he took instructions from Mr. Silano. His notes corroborate this fact. The evidence is that Mr. Bellissimo queried why Pasquale’s interest in the estate was disproportionate when compared to the interests of his siblings. The distribution as among Mr. Silano’s children was a material change from the holograph will. Mr. Silano provided his rationale, which Mr. Bellissimo included in the Will.
[80] Based on all of the evidence I am satisfied that Mr. Silano did not intend to leave a life interest in the Residence to Pasquale with a gift over to his nine grandchildren on Pasquale’s death. I accept Pasquale’s evidence that his father told him that the house was his and he could do with it what he wanted. Once the inadvertent inclusion of Pasquale’s non-existent issue was brought Mr. Silano’s attention, he had the opportunity to reconsider the outright gift to Pasquale and re-instruct Mr. Bellissimo. He did not. He accepted the Will as drafted and did not make any changes. When he discussed the Will with Mrs. Giacci, he mentioned what he perceived to be an error with respect to the gift of the cottage, which he did nothing to correct; but he made no mention of any error respecting the gift of the Residence to Pasquale.
[81] In the cross-examination of Pasquale, the applicants attempted to show that Mr. Silano’s relationship with Pasquale’s wife Trina had deteriorated to the point that he would never have made a gift of the Residence to Pasquale if there were any chance that the it could one day become Trina’s property. They offered little evidence to support this assertion. Pasquale’s evidence was that his father and Trina had reconciled before his death and that she would have returned to the Residence sooner but for her surgery and the caregiving she required from her parents.
[82] The applicants rely on Mrs. Giacci’s evidence that Mr. Silano told her that Mr. Bellissimo made an error in the Will in failing to name Barbara as the beneficiary of the cottage. They assert that this evidence supports their position that Mr. Silano executed a will in which he did not know and approve the contents (regarding the cottage). I reject this argument. If the disposition of the cottage was a real concern to Mr. Silano, it was open to him to contact Mr. Bellissimo and to make a change. Mr. Bellissimo’s evidence is that he made more than one attempt to persuade Mr. Silano to change his will to deal with the issue relating to Pasquale’s issue but Mr. Silano took no steps to do so.
[83] The applicants concede that the Will was executed with the requisite formalities. On the evidence before the court, the Will was read to Mr. Silano in his native language by Mr. Bellissimo and Mr. Silano understood it. Accordingly, Mr. Silano is presumed to have known and approved the contents of his will and had the necessary testamentary capacity: Vout v. Hay at para. 26.
Disposition and Costs
[84] Based on my finding that Mr. Silano had knowledge of and approved the contents of the Will, the Will is valid and may be admitted to probate.
[85] Having succeeded in this matter, the respondent is entitled to his costs payable by the applicants. The parties are encouraged to agree on the matter of costs. If they cannot, the respondent may serve and file written cost submissions not exceeding three pages in length (not including a bill of costs and offers to settle, if any) within 14 days hereof. The applicants may serve and file written costs submissions not exceeding three pages in length (not including a bill of costs and offers to settle, if any) within 14 days of receipt of the respondent’s submissions.
Dietrich J. Released: July 19, 2019
COURT FILE NO.: 05-148/16 DATE: 20190719 ONTARIO SUPERIOR COURT OF JUSTICE IN THE MATTER OF THE ESTATE OF FEDELE SILANO, deceased BETWEEN: BARBARA SILANO, MARY BENSADOUN and GIULIO SILANO in his personal capacity and in his capacity as the named Estate Trustee of the Estate of Fedele Silano Applicants – and – PASQUALE SILANO in his personal capacity and in his capacity as the named Estate Trustee of the Estate of Fedele Silano Respondent