COURT FILE NO.: 21710/18
DATE: 20190913
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE ESTATE OF Joseph Mills Clarke, deceased
BETWEEN:
ELIZABETH NAISMITH
Moving Party
– and –
ALAN CLARKE and DAVID CLARKE
Respondents
Ian Wright, Counsel for the Moving Party
L. Kuchynski, Counsel for the Respondents
HEARD: May 22, 2019
MCARTHUR, M.D., J.
Introduction
[1] The moving party is the adult daughter and the respondents are the adult sons of Joseph Mills Clarke who died on April 28, 2018.
[2] Mr. Clarke signed a Will on April 6, 2017 (2017 Will). This Will essentially left everything to the moving party and nothing to the respondents unless the moving party had pre-deceased.
[3] The respondents contest the Will and call into question its validity on the basis that
a. the Will was a product of undue influence by Ms. Naismith,
b. Mr. Clarke lacked testamentary capacity; and/or
c. Mr. Clarke failed to know and appreciate the contents of the Will.
[4] Prior orders of this court were made to permit certain steps to be taken for administration of the estate in this proceeding.
The Issue: Evidentiary Threshold
[5] The issue is whether the respondents have met a minimum threshold of evidence to call into question the validity of the Will. The issue is whether there is some evidence that (i) Mr. Clarke failed to know and appreciate the contents of the Will, (ii) that Mr. Clarke lacked testamentary capacity in relation to the Will or (iii) that Ms. Naismith exercised undue influence on Mr. Clarke in relation to the Will.
[6] Essentially, the respondents submit that there is no reasonable explanation that they have been disinherited other than from the manipulations of the applicant upon the deceased.
General Factual Background
[7] Joseph Clarke was born April 13, 1932 and died on April 24, 2018 at the age of 86 years. Mr. Clarke was the father of the parties before the court, namely Elisabeth Naismith born May 13, 1953, Alan Clarke born May 29, 1956 and David Clarke born December 7, 1965. Ms. Naismith resides in London and the respondents now both reside in Thamesford.
[8] Mr. Clarke’s wife, Margaret, and mother of the parties before the court, died on April 2, 2005. At the time of Margaret’s death, Mr. Clarke and his wife owned the home at 83 Brisbin Street in London.
[9] Since approximately 2007, Mr. Clarke lived with Ivy Frost, his partner, at her condominium unit on Cheapside Street in London until approximately 2015 when Ivy was no longer able to live at her home. Mr. Clarke continued to live at the Cheapside condominium until Ivy’s passing.
[10] Both Mr. Clarke and Ivy Frost made and signed Wills in 2010 without the assistance of a lawyer. Ms. Naismith was aware of this Will and discovered it at the Cheapside property upon Ivy Frost’s death. The respondents became aware of the 2017 Will after Mr. Clarke’s death.
[11] Ms. Naismith resided at the 83 Brisbin residence prior to and, except for a few months, after her mother’s death.
[12] Alan Clarke had lived at 81 Brisbin Street, London at the time of Margert Clarke’s death in 2005. Alan Clarke lived at the 83 Brisbin property for some time and would assist his parents when they were living at this property, including cutting the lawn, shovelling snow and performing repairs at the property and preparing dinners for his parents two to three times a week.
[13] Both respondents moved from London in 2010-2011 and now reside in Thamesford. Both have significant health issues.
[14] David Clarke has two daughters; Alexandra Clarke and Taylor Clarke, the latter who lives at the Brisbin Street home with Ms. Naismith.
[15] Ivy Frost died on June 3, 2016. After this, Ms. Naismith contacted the McKenzie Lake law office to assist Mr. Clarke in the administration of Ivy’s estate since he was the named executor. James Elsley was the lawyer in relation to Ivy’s estate and he first met Mr. Clarke on July 21, 2016. Mr. Clarke inherited the Cheapside condominium property and other assets through Ivy Frost’s Will.
[16] Mr. Elsley met again with Mr. Clarke on October 6, 2016, October 23, 2016 and April 6, 2017 to administer Ivy’s estate and also prepared the 2017 Will.
[17] In this Will there is a specific gift of personal effects to Ms. Naismith with the entire residue to go to her and the respondents to be alternate beneficiaries in the event she predeceased. Before the 2017 Will was executed by Mr. Clarke, his property at 83 Brisbin was transferred as a gift by him to Ms. Naismith.
[18] It is generally accepted by all parties that there were long-standing and continued relationship issues between the respondents and Ms. Naismith. They did not generally meet together and this was well-known by Mr. Clarke at all times.
[19] The affidavits and the examination transcripts of the parties demonstrate there is substantial disagreement, strained relationships and enmity between at least Ms. Naismith and Alan Clarke and David Clarke that involve past loans, loans for a vehicle purchase, addiction allegations, alcohol and marijuana use, misappropriation of funds, the reasons and circumstances for various moves by the parties to and from the 83 Brisbin Street property, negative communication allegations by each other vis-à-vis the deceased, among other matters.
The Legal Principles
[20] The legal principles can be summarized as follows:
a. The court’s role is not to simply to adjudicate upon a dispute between the parties. It is also the court’s function and obligation to ascertain and pronounce what documents constitute the testator’s last Will and are entitled to be admitted to probate. This recognizes the court’s special responsibility to the testator who cannot be present to give voice to his or her true intentions: See Neuberger Estate v. York 2016 ONCA 191 at para. 68.
b. The court has discretion whether to order that a testamentary instrument be proved, as well as the manner in which the instrument is proved: See Neuberger Estate v. York, supra at para. 87.
c. Before the court will accede to a request that the testamentary instrument be proved, an interested person must meet some minimal evidentiary threshold. If the person fails to point to evidence, which if accepted, would call into question the validity of the testamentary instrument, the application should be dismissed: See Neuberger Estate v. York, supra at para. 89.
d. The evidentiary basis must be more than pleading facts to support an action.
e. If the applicant adduces or points to evidence that calls into question the validity of the testamentary instrument and the propounder does not successfully answer, the court should generally order that the testamentary instrument be proved.
f. If the instrument is to be proved, the court has recourse to the powers of r. 75.06(3) and ensure that meaning is given to both rr. 75.01 and 75.06(3) and meet the concerns of the needless depletion of assets. The issue then is what process will best achieve the outcome, be consonant with the goals of the civil justice system and recognize the particular concerns in the estate litigation context: Neuberger Estate v. York, 2016 ONCA 191.
[21] In Neuberger Estate v. York, the Ontario Court of Appeal granted an appeal where the court found (1) that the motions judge had either misapprehended or rejected one of the beneficiaries’ evidence in relation to the degree of relationship that person had with the testator and (2) that the motions judge misapprehended the evidence of the explanation why the beneficiary brought the Will challenge. Justice Gillese cites at paras. 92 to 95 two cases where there was no evidence that the Wills were invalid.
[22] I have also considered the decisions that the parties raised in their materials including Campbell v. Campbell, 2018 ONSC 6336, Carlson c. Carlson, 2018 SKQB 196, Martin v. Martin, 2018 ONSC 1840, Shannon v. Hrabovsky, 2018 ONSC 6953 and Seepa v. Seepa, 2017 ONSC 5386. These cases provide helpful guidance and context in Will-contest situations.
[23] In Seepa v. Seepa, a minimal evidentiary basis was made out where the youngest son stood to inherit the entire estate under a Will made four years before the deceased’s death. In a prior Will dated a year earlier, the son was to receive a 20 percent interest. The same lawyer drafted both Wills.
[24] In his analysis, Justice Meyers refers to the beneficiary’s physical proximity as caregiver to the testator; a joint account between the beneficiary and the testator; and the fact that one of his other children were disinherited amongst other points mentioned in para. 42. The issues were testator incapacity and breach of fiduciary duty. Justice Meyers also outlines the beneficiary’s response in paras. 43 and 44. I recognize what Justice Myers found most compelling was that the beneficiary had consented to the relief sought, notwithstanding that such consent was not binding on the court.
[25] Like this court, Justice Meyers was expressly concerned with the goals of affordability in a modest case and a reluctance to consign estates and beneficiaries to intrusive, expansive and expensive, slow standard-form fishing expedition. Justice Meyers was provided a proposed order giving directions to which both parties consented. He refused, for which there was an insufficient evidentiary record to warrant such an order. Essentially, he wanted the order to be tailored to make sense given what was at issue. He looked to customize the process to the evidence to promote these goals.
[26] In Martin v. Martin, the deceased had executed primary and secondary Wills four years before her death. There were four adult children. Under the primary Will, one beneficiary was to have exclusive use on a property paid for by the estate with the residual property to be divided equally between the four adult children. A secondary Will held assets in trust for a specified date with a power to distribute and encroach on the capital in certain percentages before a specified date. On that specified date, there was to be a distribution to only grandchildren, not to any of children of the deceased.
[27] The evidence that supported the objection is outlined in para. 11 with the response in para. 12 of the decision. Justice Pattillo states the test for suspicious circumstances is, namely this: is there some evidence, if accepted, that would tend to negate knowledge and approval of testamentary capacity. He states that the evidence must be more than suspicion and, at this stage, the threshold for evidence is low in view of documentary discovery. He found the threshold had been met in that case.
[28] In Campbell v. Campbell, the minimal evidentiary threshold was likewise established. The case involved allegations the testator lacked testamentary capacity, she did not have knowledge nor approve the contents of the Will and undue influence. The matter was a contest between two adult children of the deceased that included disputes about and the extent of payments over time and the purchase of real estate by one adult child from funds from the deceased prior to the deceased’s death. There is also evidence suggesting the testator had issues with her memory. One of the adult children had assumed a caregiver roll in relation to the testator.
[29] In Shannon v. Hrabovsky, there was a dispute between two adult children of the testator who had suffered a stroke that left him severely impaired. There was significant and different medical evidence from the parties presented. The testator suffered another stroke later that year as well as additional strokes in later years with resulting dementia. He became dependent on others.
[30] The testator had earlier transferred a cottage to the son. After the first stroke, the testator signed three subsequent Wills. A significant dispute arose concerning a use of the testator’s credit cards by the daughter and a demand letter sent to the sister as arranged by her brother who was also the son of the testator. The final Will was signed after the demand letter.
[31] Justice Wilton-Siegel had no difficulty in finding a number of suspicious circumstances that collectively suggested a lack of testamentary capacity with respect to the last Will. Among other findings, the judge found some actions and conduct that were inconsistent on the facts and were also contrary to the testator’s past-stated intentions.
Analysis
Lack of testamentary capacity and failure to know and appreciate the contents of the Will
[32] The respondents submit that Mr. Clarke did not have testamentary capacity when he signed the 2017 Will and/or that he failed to know and appreciate its contents. The respondents submit there are a number of red flags in the circumstances.
[33] The respondents maintain Mr. Clarke indicated to them in 2017 that Ivy Frost had left him the Cheapside condominium. He had been getting his affairs in order. He offered to purchase a small house for the respondents. He said all children were to receive under the Will prepared by the lawyer dealing with Ivy Frost’s estate and that Ms. Naismith would continue to live in the Brisbin Street residence. There was hearsay evidence that Mr. Clark on one occasion was involved in a minor motor vehicle accident and they were told by the police that he demonstrated a high level of confusion when interacting with them. Despite this, Mr. Clarke completed some driving process and continued to drive. I have not considered the hearsay evidence for this decision.
[34] The respondents also proffered the evidence of Alexandra Clarke, a granddaughter of the deceased and daughter of David Clarke, who observed a gradual decline in the cognitive and emotional state of Joseph Clarke in the last two years of his life and he appeared to be getting senile and easily susceptible to suggestions. She also indicated that Mr. Clarke maintained consistent communications, although limited in later years. She was also aware that after Ivy Frost’s death, Mr. Clarke was speaking to a lawyer to implement estate plans.
[35] The moving party produced evidence of Mr. Elsley who was also cross-examined. Mr. Elsley did meet with Mr. Clarke on three occasions over four months from July to October. He also then met with him on April 6, 2017, approximately five months after the last of the initial meetings. Ms. Naismith drove Mr. Clarke to all meetings at his office. Mr. Elsley’s evidence over these occasions can be summarized as follows:
a. On July 21, 2016, he met the deceased. Ms. Naismith was present. He understood that Ms. Naismith was assisting Mr. Clarke with his day to day needs including driving him to appointments. The meeting was approximately one hour and involved primarily the administration of the estate of Ivy Frost. Mr. Elsley stated, contrary to Ms. Naismith’s evidence, that no prior Will of Mr. Clarke was presented nor discussed other than Mr. Clarke wanted to have a Will and power of attorney executed and that he did not have a Will.
b. On October 6, 2016, Ms. Naismith was present for the first five to ten minutes of the meeting. Ms. Naismith was not present for any of the estate planning matters. Mr. Clarke told Mr. Elsley he wanted to leave everything to Elizabeth but was hesitant not to include Alan Clarke and David Clarke. Mr. Clarke became quite emotional and did not make any decisions at this meeting. Mr. Elsley had thought the ideal would have been an equal distribution to his children, but it seemed that Mr. Clarke was concerned about what his sons would do with an inheritance. He expressed concerns about one or both of his sons and substance abuse and that neither of his sons at that time was actively involved in his life.
c. On October 23, 2016, Mr. Elsley met only with Mr. Clarke and went over the nature of his assets and relationships. Mr. Clarke also wanted the Brisbin Street house to go to Ms. Naismith outside of the Will and that he was going to continue to reside at the Cheapside property. Mr. Elsley did not ask Mr. Clarke if anyone was influencing him since there was nothing there. The Will and other instructions were provided and the Will and transfer documents were subsequently prepared.
d. On April 6, 2017, Mr. Clarke attended Mr. Elsley’s office. Mr. Elsley had earlier emailed Ms. Naismith that the estate planning documents and the Will were ready to be signed. Ms. Naismith was excluded from the first part of the meeting with Mr. Clarke. Mr. Elsley did not suggest to Mr. Clark that he should tell the respondents that he had excluded them from this Will and saw no purpose in explaining that to them. Ms. Naismith was included in the second part of the meeting as it involved the transfer of the 83 Brisbin Street property to her.
e. Throughout these meetings, Mr. Elsley observed Mr. Clarke to be lucid, coherent and able to respond appropriately to questions. He displayed no signs of confusion or memory loss. There were no behaviours that called into question Mr. Clarke’s mental capacity or would have prompted him to take regarding testamentary capacity, undue influence or the possibility of fraud overcoming his free will. Mr. Elsley indicated that Mr. Clarke was sharp, made decisions of his own volition, understood the extent of his assets, his responsibilities and the effect that his Will and power of attorney would have. He did not have any discussions with Ms. Naismith about Mr. Clarke’s Will.
[36] 1 find the evidence suggesting lack of testamentary capacity or that Mr. Clarke failed to know and appreciate the contents of the Will is substantially answered by the evidence of Mr. Elsley in these circumstances. The necessary implication of Neuberger Estate v. York permits a limited weighing. After a limited weighing of the evidence here, no minimal evidentiary basis remains supporting a lack of testamentary capacity or his failure to know and appreciate the contents of his Will.
Undue influence by Ms. Naismith
[37] The respondents also submit that Ms. Naismith exercised undue influence upon Mr. Clarke and point to the following as evidence in support of this.
[38] The respondents submit Ms. Naismith was in a position to unduly influence the deceased because she had knowledge of the prior Will, had knowledge of the distribution of the deceased’s assets and suggested that the deceased create a new Will. She transported the deceased to all meetings with Mr. Elsley and she was the primary contact between Mr. Elsley’s office and the deceased. She prearranged the appointments for the preparation and execution of the Will.
[39] The respondents also submit that Ms. Naismith provided inaccurate information to Mr. Clarke and the respondents about each other, interfered in the relationship among them and inserted herself into Mr. Clarke’s personal and financial affairs. They also submit Ms. Naismith influenced the testamentary decisions of Mr. Clarke as his capacities diminished, particularly from 2015 onward.
[40] The moving party denies any influence or fraud upon Mr. Clarke. She never discussed with Mr. Clarke what was in the Will including who the named beneficiaries were and was uninterested in the estate planning and administration.
[41] Ms. Naismith alleges that neither respondents worked and they had a history of excessive drinking. This caused Mr. Clarke disappointment with his sons and there was a general ongoing family estrangement. She maintains the respondents only visited Mr. Clarke approximately eight times over the last five years of his life.
[42] James Elsley noted that Mr. Clarke was living independently and he never perceived Ms. Naismith was keeping him away from his sons. However, I also am aware that Mr. Elsley’s knowledge of Mr. Clarke did not extend outside of his office or the enquiries that he made. A broader context and information are required in the circumstances.
[43] As mentioned, the respondents only need lead minimal evidence which, if believed, would suggest undue influence by Ms. Naismith upon Mr. Clarke before and when the Will was signed. On the record before me, there was clearly a breakdown between Ms. Naismith and the respondents.
[44] There is also the specific allegation that Ms. Naismith inserted herself into the testator’s affairs and was in a position of control and influence over Mr. Clarke’s financial and testamentary decisions. The evidence of the parties is substantially divergent in this way. The conflicts in the evidence in this way cannot be resolved on this record at this preliminary stage.
[45] It is a necessary to first address whether the potential for domination inheres given the nature of the relationship itself. See Geffen v. Goodman Estate, 1991 CanLII 69 (SCC), [1991] 2 S.C. R. 353 paras. 369-70
[46] I find there is evidence of potential for domination in the parent and adult child relationship at various times. This evidence involves both the moving party and the respondents vis-à-vis the testator.
[47] The next enquiry involves examining the nature of the transaction. See also Geffen v. Goodman Estate, supra. It is only in commercial transactions where, to trigger the presumption of undue influence, it must be shown that the situation worked an unfairness in that one was unduly disadvantaged or the other person unduly benefitted. This is not necessary in non-commercial cases. The presumption arises where the presence of a dominant relationship is established.
[48] As mentioned above, both the moving party and the respondents raise features of potential for domination at various proximate times by the other in the parent/adult child relationship vis-à-vis the testator. Here, on this record, no satisfactory determinations can be made one way or the other nor can the presumption be rebutted either way. The matter also requires more than a limited weighing of the evidence presented in this regard.
[49] The moving party has adduced some evidence on her own, which is supported in some ways by Mr. Elsley. Such evidence goes partially, but not entirely, toward answering the concerns of undue influence.
[50] I am also aware some statements by the respondents are bald and conclusory. For example, the respondents submit that the true value of the estate may be higher due to the concerns of the misappropriation of funds as well as the alleged gift. There is no evidence supporting the allegation of misappropriation by Ms. Naismith. The gift of the property, in these circumstances and based on evidence adduced, appears to have been an intentional gift, completed separately and with expressed instructions to a lawyer. I place no weight or consideration on such bald or conclusory assertions.
[51] In the end, I find there remains minimal evidence which, if true, might support undue influence.
Additional contextual considerations
[52] In the volley of affidavits and allegations, there is obvious enmity between Ms. Naismith and the respondents and other family members. Enmity alone will seldom be the basis for further enquiry. However, in the course of the exchange of affidavits and replies in this case, some additional matters of note arise and should be mentioned.
[53] It is not lost on the court that if Joseph Clarke had predeceased Ivy Frost, Ivy Frost stood to solely inherit his estate. The Will of Ivy Frost and Joseph Clarke’s 2010 Will were both located by Ms. Naismith after Ivy Frost’s death. Both Wills were provided to Mr. Elsley when Ivy Frost’s estate was to be administered. It is somewhat troubling that Mr. Clarke indicated to Mr. Elsley at the first meeting that he did not have a Will. This prior Will by Mr. Clarke had apparently been discovered by Ms. Naismith.
[54] Another issue involved a loan to Alan Clarke for the purchase of a 2004 Toyota Corolla vehicle. Alan Clarke indicates he initially loaned the money from his father. Ms. Naismith maintains that she loaned the money to Alan Clarke. However, Ms. Naismith also indicated in a Facebook posting and exchange with Alexandra Clarke that the loan came from the deceased, which Alan did not pay back. Ms. Naismith then states in a subsequent affidavit that she was mistaken. No explanation for the mistake is provided.
[55] The uncertainty on the loan raises concerns at least as to the determination of assets of the estate. This likewise cannot be resolved on the basis of competing, contradictory and inconsistent affidavit evidence. Such factual features and issues of the credibility, accuracy or veracity of the parties cannot be tested or determined at this stage.
[56] The moving party also provides the basis and reasons of the testator not providing any entitlements to the respondents under the Will. These include the alcohol and drug use history by the respondents. The respondents admit past difficulties in this respect but states the concerns are dated and no longer relevant. The respondents otherwise indicate a good relationship with the deceased. This is yet another of many examples of a substantial conflict on the evidence before the court.
[57] The respondents complain that the moving party has not provided any financial, medical or legal records to ease the respondents’ concerns even though she has the authority to do so. I will address this momentarily.
[58] The respondents also complain that that the moving party had entered in an agreement of purchase and sale for the residential property owned by the estate in view of the objection filed by the respondents. Nothing turns on this feature at this point in this case.
Conclusion
[59] I find that a minimal evidentiary basis exists as to undue influence.
[60] I am also mindful to address the special policy concerns in estate matters as referred to in Seepa v. Seepa.
[61] This court gives the following directions under r. 75.06(3) insofar as some financial, medical and other records pertain to the deceased:
a. The parties are entitled on request to the production of the solicitor records of James Elsley in relation to the Will and power of attorney of Joseph Mills Clarke. Such records shall include notes and documents relating to appointments, interviews, instructions and communications in the preparation of a Will and power of attorney for Mr. Clarke. The court lifts and relieves Mr. Elsley or his staff’s duty of confidentiality in this respect.
b. The parties are empowered to demand and compel the release of financial records from all banking or financial institutions which held assets solely or jointly of Joseph Mills Clarke for the years 2015 to 2018 inclusive.
c. Any request must be made by either party within 30 days of this order.
d. The costs of the productions ordered shall be paid by the estate subject to adjustment at the conclusion of the litigation. Copies of all documents shall be provided to all parties forthwith upon receipt.
e. This Motion for Directions is adjourned sine die, returnable on ten days notice to permit the disclosure of documents and the determination of the issues in this proceeding. The parties, including any third parties from whom documents are requested or demanded, may request further the advice, opinion, direction or relief of this Court following production of the documents ordered.
[62] The issue of costs shall be left to the judge hearing the application after productions are completed and the parties require further directions.
“Justice M. D. McArthur”
Justice M. D. McArthur
Released: September 13, 2019
COURT FILE NO.: 21710/18
DATE: 20190913
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ELIZABETH NAISMITH
Moving Party
– and –
ALAN CLARKE and DAVID CLARKE
Respondents
REASONS FOR JUDGMENT
McArthur J.
Released: September 13, 2019