Court File and Parties

Barrie Court File No.: CV-00001610 Date: 2019-09-30 Superior Court of Justice – Ontario

Re: In the Matter of the Estate of Daniel Charles Maloney, deceased

Ann Marie Priestner and John Priestner, Estate Trustees for the Estate of Daniel Charles Maloney, Moving Party

And:

Shelley Irene Maloney, Responding Party

Before: Justice V. Christie

Counsel: Sonja Hodis, Counsel, for the Moving Party Shelley Irene Maloney, self-represented

Heard: September 27, 2019

Endorsement

[1] The moving parties, Anne Marie Priestner and John Priestner, Estate Trustees for the Estate of Daniel Charles Maloney, have brought a motion requesting various forms of relief, specifically that:

1. The notice of objection filed by Shelley Maloney be removed pursuant to Rule 75.03(2) of the Rules of Civil Procedure;

2. Directing the Registrar of the Barrie Superior Court to issue, forthwith, the Certificate of Appointment of Estate Trustee with a Will filed by the Moving Party;

3. Shelley Maloney not attend, access, or be on the premises of 1011 Lakeshore Road East, Oro Mendonte or Unit 33 - 2 Albert Street, Barrie, Ontario;

4. Shelley Maloney is not to interfere in any way with the sale of the properties that form part of the estate, including not to contact the purchasers or any potential purchasers, and not to contact any real estate agents involved in the sale of those properties.

[2] The will of Daniel Charles Maloney was finalized on January 13, 2011. The will appointed Anne Marie Priestner Bourque (also known as Mimi Priestner Bourque) and Donald Cranston, jointly, to be the executors and trustees of the will. If either of the named persons were unable or unwilling to act, the will named John Priestner to replace them. The will provided for the estate to be divided equally amongst his children, Shelley Maloney, Thomas Maloney and Matthew Maloney, in addition to an oak china cabinet, that was bequeathed, specifically, to Shelley Maloney.

[3] The consideration for the court on this motion is whether the will is a valid one and whether there is any reason it should not go to probate and be administered.

[4] In the documentation provided by Ms. Maloney, there was a suggestion that a further will or codicil to the will was being considered, but this never came to pass. It was unclear to this court what was being contemplated by Mr. Maloney at that time. Regardless, there was no evidence of another will being in existence.

[5] Daniel Charles Maloney died on November 20, 2018.

[6] Donald Cranston renounced his appointment to become executor and trustee of the will on February 12, 2019. Therefore, pursuant to the terms of the will, John Priestner took his place.

[7] The Moving Parties, the named executors and trustees of the will, filed an Application for Certificate of Appointment of Estate Trustee with a Will dated May 29, 2019.

[8] Two of the beneficiaries, Thomas Maloney and Matthew Maloney, provided their consent to this appointment on September 5 and 6, 2019 respectively. Shelley Maloney, the remaining beneficiary, filed a notice of objection dated June 20, 2019. The notice of objection provided the following reasons:

For many reasons including but not limited to the following:

• Undue influence

• Unfitness to act estate trustees

• It is a conflict of interest for a family member (niece) who is a medical doctor who is / was a Power of Attorney of Health and / or is a coroner to be an Executor of my father’s estate.

• Significant conflict and friction in the family since January 13, 2011 rendering Dr. Ann Marie Priestner and John Priestner unfit as Executors

• I am challenging the will

• more information to follow

[9] While Ms. Maloney raised a number of concerns surrounding her father’s death and the assets that he left behind, the only motion filed at the time of argument was by the moving parties asking for the notice of objection to be removed and the other relief cited above.

[10] Having said that, however, the responding party, Ms. Maloney, submitted that a serious and extensive inquiry must occur in order to establish and recognize the true and accurate intention of her father as to his estate. This would consist of obtaining various documentation, including medical records relevant to the time period of the will, documentation related to a power of attorney that Anne Marie Priestner held in relation to Daniel Maloney, an investigation into her father’s death, an investigation into the coroner’s process, an investigation into the conduct of the proposed estate trustees, just to name a few. She submitted that the will does not reflect what she believes to be her father’s intention in relation to who should administer his estate. She submitted that the will does not speak to many other significant assets/property held by her father, which she found unusual and telling. She submitted that the estate trustees are not acting reasonably for the benefit of the beneficiaries. She seeks various forms of relief in her responding notice of motion, including, but not limited to:

1. An order that the notice of objection not be removed;

2. An order directing the Registrar not to issue the Certificate of Appointment filed by the moving parties;

3. An order to remove the moving parties as Trustees of the Estate;

4. An order to remove Deborah Wall-Armstrong as the lawyer administering the estate;

5. An order to appoint new Trustees;

6. An order for production of financial evidence and proof that the condo needs to be sold rather than rented;

7. An order that the realtor for the estate property be removed;

8. An order that she be allowed to enter the estate properties;

9. An order that the respondent’s offer to purchase any of the estate properties be considered prior to others;

10. An order that the office of the Chief Coroner of Ontario and the OPP conduct an investigation into the death of Daniel Maloney;

11. An order that Deborah Wall-Armstrong lose her licence to practice law and that Dr. Ann Marie Priestner lose her licence to practice medicine;

12. An order for the passing of accounts;

13. An order for paternity testing of the other beneficiaries;

14. An order for various investigations to be conducted into the actions of certain individuals.

[11] It is of note that these requests were not properly before the court as a motion. While there were various documents provided to the court purporting to support the argument for this relief, there was no affidavit evidence and, therefore, no proper evidentiary record upon which the court can grant the relief sought. Further, many of the requests sought are well outside the jurisdiction of this court to grant.

[12] I would also note that, in my view, the affidavit of Deborah Lynn Wall-Armstrong, presented by the moving parties, contains inadmissible hearsay. For example, the affidavit speaks to Ms. Wall-Armstrong being advised that Ms. Maloney exhibited violent and inappropriate behavior toward her family, including pointing a gun at her father. To that extent, those portions of the affidavit are inadmissible and will not be considered by this court as to the truth of their content.

[13] There is no question that this filed objection has stalled the administration of this estate. Without the certificate, there is no ability to sell the properties and there is no ability to access some of the financial accounts. There is evidence that the estate has very little liquidity at this point. A “customer snapshot” from BMO dated September 25, 2019 shows that there are two bank accounts, one with a balance of $11,935.48 and one with a balance of $2500.00. There is, therefore, good evidence that this estate does not have the liquidity to sustain itself. However, there are two properties as part of this estate, a house and a condo, one of which is set to be sold and the transaction to close on October 1, 2019.

[14] It is important to note that even if the objection is successful and the will is set aside, the distribution of property would not, significantly, change. If this will were determined to be invalid, there is no other will to look to in order to determine the wishes of Mr. Maloney. If this becomes an intestacy, the estate would still be distributed equally among the children of Mr. Maloney. The only thing that would change is that Shelley Maloney would lose the oak china cabinet that was bequeathed to her, as all property would need to be divided equally.

[15] Having said that, however, there is absolutely no reason to disregard this will. The lawyer who assisted in the preparation of this will has provided affidavit evidence to demonstrate the circumstances under which this will was created. The following pieces of information from that affidavit are highly relevant to this court’s inquiry as to the validity of the will:

1. The lawyer knew Mr. Maloney for approximately 20 years;

2. Mr. Maloney contacted the lawyer, directly, in 2011 in order to prepare a will;

3. Prior to her initial meeting with Mr. Maloney, he prepared a will questionnaire which was attached at Exhibit 6 to her affidavit. The asset valuations Mr. Maloney provided were consistent with the assets he had at the time of his death;

4. The lawyer had no concerns about Mr. Maloney’s capacity when he signed the will;

5. Mr. Maloney fully understood and approved the contents of the will;

6. His intention was to equally distribute his estate to his three children, except for the china cabinet to be bequeathed to his daughter;

7. The Will was duly executed by Mr. Maloney and properly witnessed;

8. Ms. Wall-Armstong did not believe that Mr. Maloney was unduly influenced or that there were any suspicious circumstances;

9. Mr. Maloney attended at her office by himself to provide her with instructions and at the time he executed the will;

10. Mr. Maloney specifically chose his niece, Anne Marie Priestner, and his financial advisor, Donald Cranston, to be his estate trustees, with John Priestner to be the replacement;

11. Mr. Maloney, specifically, did not want his children, the residual beneficiaries, to be the estate trustees, but he did want them to equally share in the residue of the estate;

12. Anne Marie Priestner and John Priestner have no interest in the residue of the estate.

[16] While Ms. Maloney did make a number of submissions regarding her suspicions surrounding the creation of this Will, there was no evidence to support these suspicions. Most of Ms. Maloney’s submissions address things that she suggested occurred after the Will was prepared in 2011, which is not relevant to the consideration before the court on this motion.

[17] The propounder of the will must prove the validity of the will by demonstrating that it was duly executed, that the testator knew what the will said, that the testator had the capacity to sign the will, and that it is in fact the testator’s signature. In other words, the person propounding the will has the legal burden of proof with respect to due execution, knowledge and approval: See Vout v. Hay, [1955] 2 S.C.R. 876. The affidavit of the lawyer confirms all of this in this case. Ms. Wall-Armstrong took instructions, prepared the will, and witnessed the signing of the will. She had no concern about capacity and had no doubt that Mr. Maloney knew what he was signing.

[18] In Martin v. Martin 2018 ONSC 1840, Justice Pattillo outlined the burden on the person challenging a will. He stated:

[17]…Once that burden is met, the burden shifts to those challenging the will to establish “suspicious circumstances” – evidence which, if accepted, would tend to negate knowledge and approval or testamentary capacity. If such evidence is adduced, the burden switches back to the propounder. If undue influence is alleged, the burden is on those attacking the will: Neuberger Estate at paras. 77-78

[19] While Ms. Maloney submitted that there was undue influence, there was absolutely no evidence of that in this case. The fact that Ms. Maloney does not agree with the terms of the will or believes that her father would have done things differently is not proof in that regard.

[20] With respect to the second reason that she provided, that the moving parties are unfit to act as trustees, she does not substantiate why she is saying that with evidence. If she is combining this with the third ground of objection, being the conflict of interest for a family member who is also a doctor, there is simply no basis in law for this proposition. I was referred to sections of the Substitute Decision Act, 1992 S.O. 1992, Chapter 30, specifically sections 24 and 46(3), which state that in the context of a court appointment of a guardian of property or power of attorney for personal care, a person who provides health care or support services to an incapable person for compensation shall not be appointed, although there is a specific exception where the person is a relative. Therefore, even in circumstances where healthcare providers are precluded, there is an exception for relatives. Having said that, I am not aware of any similar prohibition in the context of estates.

[21] Lastly, the responding party suggested that there was a conflict in the family, thereby, rendering the moving parties unfit. There is no basis in law for excluding someone from acting for that reason. Conflict in families is not rare and, unfortunately, can be quite common in estate litigation.

[22] Mr. Maloney made his wishes perfectly clear. Those wishes were put forward in a valid will. According to the lawyer, he specifically did not choose his children to be estate trustees, but rather chose his niece and financial advisor, and as an alternative, his nephew. Mr. Maloney’s three adult children are to, equally, inherit his estate. In circumstances where there was no issue with his signing the will or his ability to sign the will, this court must honour Mr. Maloney’s wishes.

[23] In Martin, supra, Justice Pattillo described how the courts have moved away from allowing discontented relatives to come forward with bald assertions and thereby hold up the administering of an estate to a point where the estate assets are depleted. Justice Pattillo stated in part as follows:

[25] In Neuberger Estate, the court considered the question of whether an Interested Person has an automatic right to proof of the will in solemn form and concluded, based on a plain reading of rules 75.01 and 75.06 that while an Interested Person has the right to request formal proof of a will, they are not entitled, as of right, to require the will be proved in solemn form.

[26] After setting out her reasons for reaching the above decision, Gillese J.A., who wrote the decision for the court in Neuberger Estate, stated at para. 89 of the decision:

[89] Based on the above analysis, in my view, an applicant or moving party under rule 75.06 must adduce, or point to, some evidence which, if accepted, would call into question the validity of the testamentary instrument that is being propounded. If the applicant or moving party fails in that regard or if the propounder of the testamentary instrument successfully answers the challenge, then the application or motion should be dismissed. If, on the other hand, the applicant or moving party adduces or points to evidence that calls into question the validity of the testamentary instrument which the propounder does not successfully answer, the court would generally order that the testamentary instrument be proved. In determining the manner in which the instrument be proved, the court would have recourse to the powers under rule 75.06(3).

[32] Finally, the above approach ensures that objections which have no validity are dealt with on a summary basis and at minimal cost to the Estate and the parties.

[33] In Neuberger Estate, the Court did not elaborate on the strength of the minimal evidentiary threshold that must be met beyond stating that, in the case of a will challenge, the evidence adduced should, if accepted, call the validity of the will into question. At the same time, the Court noted that it is open to the propounder to answer the evidence.

[34] In the recent decision of Seepa v. Seepa, [2017] O.J. No. 4649 (SCJ), Myers, J. discussed the application of the Neuberger Estate test at para. 35:

[35] While the tests are clearly and succinctly set out by the Court of Appeal, there remains much room for uncertainty in their application. What is the standard of proof at play? What does the applicant have to do to answer the minimal evidentiary threshold? Is it enough that the proponent denies the applicant's evidence? In my view, it cannot be enough to just join issue. Issues beg for resolution. Need there be a "genuine issue requiring a trial?" That phrase, of course, is drawn from Rule 20.04 (2)(a) that governs summary judgment. Need a proponent show that he or she would be entitled to summary judgment in order to avoid proof in solemn form? That too cannot be right. At this preliminary stage, the issue is not whether the applicant has proven his or her case but whether he or she ought to be given the tools, such as documentary discovery, that are ordinarily available to a litigant before he or she is subjected to a requirement to put a best foot forward on the merits. Normally, a litigant must just plead facts that support a cause of action to become entitled to use the full panoply of fact-finding tools provided by the Rules. In estates cases, more is required. Some evidentiary basis to proceed is required in order to address the specific policy concerns that are discussed above.

[24] In order for Ms. Maloney to be successful, the evidence adduced by her should, if accepted, call the validity of the will into question. Ms. Maloney has not provided any evidentiary basis to support a further investigation into the validity of this will.

[25] The court is permitted to remove the notice of objection pursuant to s. 75.03(2) of the Rules of Civil Procedure. Courts, as noted above, have endorsed a summary procedure for doing this where evidence is not provided.

[26] In my view, there is no evidence here to question the validity of the will. The highest that Ms. Maloney seems to be able to put her submission is that she does not believe her father would have drafted his will in such a way, given such indicators as the language used, the absence of various items of his property, and the trustees that he chose. However, Ms. Maloney stated that her father’s intention would have been to distribute his estate equally among his children. This is exactly what Mr. Maloney has done.

[27] Further, there is affidavit evidence from the lawyer who assisted with the drafting. The lawyer had no concerns about capacity, knowledge or execution. The lawyer makes it clear that there was no other will.

[28] The reality is that regardless of what this court does, the result will be the same. If the court approves the will and allows the appointment of estate trustees, Mr. Maloney’s three children will benefit equally under the will, with the added benefit to Shelley Maloney of receiving the oak china cabinet. If the court does not approve the will, there is no other will to take its place and, therefore, this matter will proceed as an intestacy. As a result, Mr. Maloney’s three children will benefit equally under the will, however, Shelley Maloney will lose the oak china cabinet that it would appear her father wanted her to have. All beneficiaries, including Ms. Maloney, are losing as a result of this litigation.

[29] The motion brought by the moving parties is granted to the extent that the notice of objection filed by Shelley Maloney is removed and the Registrar of the Barrie Superior Court of Justice shall issue, forthwith, the Certificate of Appointment of Estate Trustee with a Will filed by the moving party.

[30] Further, this court orders that Shelley Maloney is not to interfere in any way with the sale of the properties at 1011 Lakeshore Road East, Oro Medonte or Unit 33 - 2 Albert Street, Barrie, Ontario, including that she is not to contact the purchaser or potential or future purchasers for either of the properties, and is not to contact any real estate agents involved in the sale of either of the properties.

[31] I am not inclined to forbid Ms. Maloney from accessing either of the properties as I do not feel that I have a sufficient evidentiary basis upon which to do so. The default judgment provided by the moving parties during oral argument, not part of the motion record, suggested that Ms. Maloney was noted in default in relation to a small claims action that was brought against her in relation to alleged damages that were caused to unit #303 – 1653 Richmond Street in London Ontario on February 28, 2019. I have no idea whether it is alleged that Ms. Maloney caused these damages or simply that she was responsible for the unit. I have no idea what the circumstances were of the default. This is not sufficient evidence upon which this court can order the relief sought. I do note, however, that a trespass to property notice has already been served on Ms. Maloney with respect to the two estate properties and that it has no termination date.

[32] If the parties are unable to agree as to costs of this motion, the court will accept written submissions on costs, which shall be no more than three pages in length, excluding supporting documentation, and which shall be provided to the court office in hard copy or by email no later than October 7, 2019. The parties are permitted to serve each other with their submissions by email.

CHRISTIE J.

Date: September 30, 2019