COURT FILE NO.: CV-16/248

DATE: 2019/10/01

ONTARIO

SUPERIOR COURT OF JUSTICE

at Pembroke

IN THE ESTATE OF BRUCE BOESE, deceased

B E T W E E N:

BRENDA BAYFORD

Plaintiff

– and –

BRIAN BOESE, KAITLYN BOESE, ALEXANDER BOESE, ERIN McTEER and MICHELLE McTEER

Defendants

Taayo Simmonds, for Plaintiff

Gail S. Nicholls, for the Defendant, Brian Boese

HEARD: at Pembroke, Ontario on November 13 and 14, 2018 (with written submissions delivered in January 2019)

REASONS FOR DECISION

CORTHORN J.

Introduction

[1] At his death in June 2015, Bruce Boese was the sole owner of the 22-acre farm in the Arnprior, Ontario area that he inherited from his parents. Bruce never married and had no children. For two decades prior to his death, Bruce was assisted in the operation of the farm by his friend, Brenda Bayford. Ms. Bayford seeks to prove a will said to have been executed by Bruce in August 2013 (“the 2013 Will”).

[2] Under the 2013 Will the farm property is to be transferred to Ms. Bayford. The residue of Bruce’s estate is then divided equally between two children of Brian Boese (Bruce’s brother and the defendant in this action) and the two children of Bruce’s late sister Rhonda McTeer (by whom Bruce was pre-deceased in early 2013).

[3] Brian has worked as a dentist in Arnprior for 38 years. He last worked on the family farm when he was in university.

[4] This case is not about whether the 2013 Will embodies Bruce’s testamentary intentions. Rather, it is about whether (a) Bruce signed the 2013 Will that he instructed his lawyer to prepare, and (b) he signed the 2013 Will in the presence of witnesses.

[5] Brian does not dispute that the 2013 Will reflects the testamentary instructions given by Bruce to his solicitor. Brian does not allege that the 2013 Will was procured by undue influence exerted by Ms. Bayford, or anyone. Brian does not allege that Ms. Bayford, or anyone, coerced Bruce to make a new will, leaving the farm to Ms. Bayford. Brian raises no issue with respect to Bruce’s capacity to make a new will in 2013.

[6] Brian challenges the 2013 Will on only two grounds. First, Brian alleges that Bruce did not sign the 2013 Will. Second, Brian alleges that, if the signature on the 2013 Will does belong to Bruce, then he did not sign it in the presence of Sophie Gordon and Colleen Desarmia, whose respective signatures appear as witnesses to Bruce’s signature.

[7] Brian asserts that the 2013 Will does not comply with the provisions of the Succession Law Reform Act, R.S.O. 1990, c. 26 (“SLRA”), governing the execution of a will. The theory of Brian’s case is that, after Bruce’s death, Ms. Bayford found a copy of the 2013 Will that Brian had signed but that was not witnessed. She then colluded, connived, or conspired with Ms. Gordon and Ms. Desarmia to procure the 2013 Will by asserting that they witnessed it being signed by Bruce. In the alternative, Brian asserts that Bruce’s signature was forged on the 2013 Will to which Ms. Gordon and Ms. Desarmia signed their names as witnesses.

[8] Brian says that a will executed by Bruce in 1992 (“the 1992 Will”) is Bruce’s last valid will and governs the distribution of Bruce’s estate (“the Estate”). In the 1992 Will, Bruce named his parents as sole beneficiaries of the Estate. Bruce was pre-deceased by both of his parents. Had Bruce not made a new will in 2013, his estate would have passed on an intestacy.

[9] On an intestacy, Brian and Rhonda would have each inherited 50 percent of the Estate. However, Rhonda died in May 2013. Therefore, Rhonda’s 50 percent share of the Estate would have passed to her two daughters, Erin McTeer and Michelle McTeer.

[10] The McTeer daughters are residuary beneficiaries pursuant to the 2013 Will. They are named as defendants in this action. They did not deliver a statement of defence and did not participate in the trial.

[11] Brian’s children, Kaitlyn Boese and Alexander Boese, are also residuary beneficiaries pursuant to the 2013 Will. Like their cousins, they are named as defendants in this action, did not deliver a statement of defence, and did not participate in the trial.

Background

[12] Ms. Bayford is married and has lived in Arnprior since 1992. Ms. Bayford describes Bruce as her best friend. Her husband was also friends with Bruce—the three of them curled together. At one time, Bruce and Ms. Bayford worked together at a bar in Arnprior. Ms. Bayford worked at several other jobs including as a snow-blower operator and, in summer months, at Bayview Lodge.

[13] Beginning in the early 1990’s, Bruce’s parents became less involved in the operation of the family farm. Bruce continued to work on the farm. During their lifetime, Bruce’s parents transferred 50 per cent of the ownership of the farm to Bruce; he inherited the remaining 50 per cent ownership of the farm following the death of his parents.

[14] Also in the early 1990’s, Ms. Bayford began to assist Bruce with the day-to-day operation of the farm. At the time of Bruce’s death, Ms. Bayford had been assisting Bruce at the farm for over 20 years. Ms. Bayford’s evidence with respect to Bruce’s characteristics as a farmer and her role at the farm is uncontradicted:

• Bruce’s focus was growing the crops. Managing the paperwork and doing the books was not his strength;
• Bruce had an office within the farmhouse. He kept old-fashioned, hand-written ledgers. He had a photocopier and a filing cabinet; and
• Ms. Bayford did her best to see that paperwork related to the farm was kept up-to-date and tax returns were prepared annually.

[15] In addition to being Bruce’s friend and assisting him with the farm, as of February 2009, Ms. Bayford was named by Bruce as his attorney for property. Bruce’s parents had both passed away by then. Ms. Bayford’s evidence is that by early 2009 Bruce was essentially estranged from Brian.

[16] The long-time lawyer for Bruce’s parents and for both Bruce and Brian was Timothy B. Colbert. The 1992 Will was prepared by Mr. Colbert. In the summer of 2013, Mr. Colbert’s legal assistant of approximately 20 years prepared a draft will for Bruce. The draft will was provided to Bruce for review and comment. He did not, however, attend at Mr. Colbert’s office to revise and/or execute that document.

[17] The 2013 Will is dated August 15, 2013. The date is typed and appears on the third and final page of the document. A copy of the 2013 Will was marked as an exhibit at trial. It has the word “DRAFT” stamped on every page and it includes Bruce’s signature and those of the two witnesses, Ms. Gordon and Ms. Desarmia.

[18] Based on her conversations with Bruce in 2013, including those after Rhonda passed away, Ms. Bayford understood that Bruce was going to revise the 1992 Will and leave the farm property to her. Ms. Bayford’s evidence is that she was never told by Bruce that he had made the 2013 Will.

[19] In the days and weeks following Bruce’s death, Ms. Bayford searched for a will and found a copy of the 2013 Will that had Bruce’s signature without witness signatures (“Version 1”). Ms. Bayford’s evidence is that she took Version 1 to Mr. Colbert’s office, fully expecting that office to have the original 2013 Will signed by Bruce with the signatures of two witnesses. Ms. Bayford testified that she was surprised to find out that Mr. Colbert’s office did not have that document.

[20] From a conversation with Ms. Desarmia several weeks after Bruce’s death, Ms. Bayford learned that Ms. Gordon and Ms. Desarmia had witnessed Bruce’s signature on the 2013 Will. After that conversation, Ms. Bayford returned to the farm and searched again for the will. She found the 2013 Will with Bruce’s signature and the signatures of the witnesses (“Version 2”).

[21] The 2013 Will names Ms. Bayford as the sole Trustee of the Estate. She applied for a Certificate of Appointment as Estate Trustee. Brian filed a notice of objection and an order for directions was subsequently made. Pursuant to that order, Ms. Bayford is the plaintiff in this action. Brian, his two children, and Rhonda’s two children are the defendants in the action. Pleadings in the action were exchanged in 2016.

[22] Ms. Bayford asserts that the 2013 Will was executed in compliance with the provisions of the SLRA and is valid. Brian alleges that upon finding only Version 1, Ms. Bayford persuaded Ms. Gordon and Ms. Desarmia to sign their names as witnesses. Brian asks the court to find that (a) he has rebutted the presumption of validity of the 2013 Will; (b) without that presumption, Ms. Bayford has failed to prove that the 2013 Will is valid; and (c) the 1992 Will is Bruce’s last valid will.

The Issues

[23] Based on the objections raised by Brian, the issues to be determined are:

1. Was the 2013 Will signed by Bruce?
2. If so, was the 2013 Will signed by Bruce in the presence of the two witnesses, Ms. Desarmia and Ms. Gordon?

Disposition

[24] I find that Ms. Bayford has met her onus of establishing that the 2013 Will was (a) signed by Bruce in the presence of Ms. Desarmia and Ms. Gordon, and (b) executed in accordance with the requirements of the SLRA. I conclude that the 2013 Will is valid and is Bruce’s last will and testament.

[25] In making the above findings, I have accepted the evidence of Ms. Desarmia and Ms. Gordon with respect to the execution of the 2013 Will. I conclude that Bruce signed the 2013 Will in the presence of the two attesting witnesses, who then signed their names.

[26] The existence of Version 1 and Version 2 of the 2013 Will is explained by Ms. Bayford’s evidence, which I accept, that Bruce (a) was not well-organized when it came to paperwork, and (b) had access to a photocopier in his home. The existence of Version 1 does not affect the validity of Version 2 of the 2013 Will.

[27] Ms. Bayford was a close friend to Bruce. In the more than 20 years that Ms. Bayford assisted Bruce in the operation of the farm, she developed a connection to it. The friendship between Bruce and Ms. Bayford is reflected in Bruce’s decision, in 2009, naming Ms. Bayford as his attorney for property. Bruce’s decision, in 2013, to revise his will is in keeping with that friendship and Ms. Bayford’s continuing connection to the farm. In addition, by revising his will in 2013, Bruce avoided the intestacy that would otherwise have arisen because both of his parents had passed away.

The Law

[28] Section 4(1) of the SLRA sets out three requirements that must be met for a will to be valid. Those requirements are that:

a) at its end [the will] is signed by the testator or by some other person in his or her presence and by his or her direction;

b) the testator makes or acknowledges the signature in the presence of two or more attesting witnesses present at the same time; and

c) two or more of the attesting witnesses subscribe the will in the presence of the testator.

[29] In Vout v. Hay, the Supreme Court of Canada summarized the burden of proof to be met by the propounder of a will (1995 CanLII 105 (SCC), [1995] 2 S.C.R. 876). The propounder of a will has the burden to establish on a balance of probabilities due execution, the testator’s knowledge, and approval as to the contents of the will, and testamentary capacity (Vout, at p. 889):

Upon proof that the will was duly executed with the requisite formalities, after having been read over to or by a testator who appeared to understand it, it will generally be presumed that the testator knew and approved of the contents and had the necessary testamentary capacity.

[30] Given the nature of Brian’s challenges to the validity of the 2013 Will, the focus in this action is on whether Ms. Bayford has shown that it was duly executed with the requisite formalities as referenced in the first part of the passage quoted above.

Analysis

a) The 2013 Will Accords with Bruce’s Instructions

[31] The only evidence with respect to the preparation of the 2013 Will was provided by Tracey Fraser. As of 2013, Ms. Fraser had worked in the law office of Mr. Colbert for 18 or 19 years. Ms. Fraser was called as a witness as part of Brian’s case.

[32] Brian is not alleging that the 2013 Will reflects anything other than the instructions given by Bruce to Mr. Colbert with respect to the substantive terms of the will. Ms. Fraser’s uncontradicted evidence is that she prepared the 2013 Will based on instructions she received, through dictation, from Mr. Colbert. I accept that evidence.

[33] Ms. Fraser’s uncontradicted evidence is that Mr. Colbert was getting ready to retire from the practice of law at the end of August 2013. Based on Ms. Fraser’s evidence as to the manner in which the 2013 Will was prepared, I draw an inference and find that:

a) The draft document was prepared prior to August 15, 2013;

b) The draft document was sent to Bruce by mail in advance of August 15, 2013, in anticipation that he would attend Mr. Colbert’s office on or about that date to execute the 2013 Will;

c) Mr. Colbert and Ms. Fraser handled the preparation of the 2013 Will in that manner in an effort to complete that work for Bruce prior to Mr. Colbert’s anticipated retirement date (the end of August 2013); and

d) Bruce had the 2013 Will in his possession no later than August 15, 2013.

b) The Two Versions of the 2013 Will

[34] Brian challenges the validity of the 2013 Will because of the existence of Versions 1 and 2 of the document and because of Ms. Bayford’s delay in finding and producing Version 2.

[35] Ms. Bayford’s uncontradicted evidence is that, after Bruce died, she checked the drawers of the filing cabinet at the farmhouse for a copy of his will and found Version 1. On the day following Bruce’s death, Ms. Bayford took Version 1 to Mr. Colbert’s office.

[36] Ms. Bayford expected that the original and fully-executed 2013 Will was at the lawyer’s office. There is nothing unreasonable about Ms. Bayford’s expectation in that regard. What she expected is the normal course when a lawyer is retained to prepare a will. In addition, Version 1 is stamped “DRAFT”; it was reasonable for Ms. Bayford to expect there was another version of the document.

[37] When at the lawyer’s office, Ms. Bayford spoke with Ms. Fraser. I accept Ms. Bayford’s evidence that, in the circumstances described immediately above, she was taken aback when informed by Ms. Fraser that the lawyer’s office did not have a fully executed version of the 2013 Will.

[38] Based on the evidence of Ms. Bayford and Ms. Fraser, I find that Ms. Fraser made a photocopy of Version 1 and returned the original of Version 1 to Ms. Bayford.

[39] Ms. Fraser’s evidence is that when Ms. Bayford was at the office on the day following Bruce’s death, she told Ms. Fraser, “I saw him sign it”—referring to the 2013 Will. Ms. Bayford denies making such a statement. I prefer the evidence of Ms. Bayford on that point.

[40] Ms. Bayford’s evidence is that she was not in the farmhouse kitchen when Ms. Desarmia and Ms. Gordon were there with Bruce. The uncontradicted evidence of Ms. Bayford, Ms. Desarmia, and Ms. Gordon is that Ms. Bayford was in or near the machine shed when Ms. Desarmia and Ms. Gordon were in the kitchen with Bruce witnessing his signature on the 2013 Will. The machine shed is more than 100 feet away from the farmhouse. I accept this evidence as to Ms. Bayford’s whereabouts when the 2013 Will was signed.

[41] Brian also relies on the evidence of Leonard Stavenow, the proprietor of an equipment rental store in Arnprior. It is undisputed that Ms. Bayford was at the store on June 20, 2015, approximately two weeks after Bruce’s death. Ms. Bayford spoke to Mr. Stavenow of having lost her best friend.

[42] Mr. Stavenow testified that Ms. Bayford confided in him regarding the status of Bruce’s will. His evidence is that Ms. Bayford said both “it was not signed” and “but the rough copy shows intent”. Mr. Stavenow’s evidence is that he is unable to recall what he said to Ms. Bayford in response. He recalls that he tried to be kindly towards Ms. Bayford, knowing that Bruce had only recently passed away.

[43] Ms. Bayford’s evidence at trial is that she does not recall telling Mr. Stavenow that Bruce’s will was not signed. In an effort to demonstrate a prior inconsistent statement, Brian’s counsel took Ms. Bayford to the transcript from her examination for discovery. The transcript shows, however, that Ms. Bayford’s evidence on examination for discovery includes two answers on that point.

[44] First, Ms. Bayford said that she told Mr. Stavenow that the will was not signed (Q. 201). Second, Ms. Bayford changed or corrected her answer to say that she told Mr. Stavenow that the will was not witnessed (Q. 205). I find that there is no contradiction between Ms. Bayford’s evidence at trial and her evidence on examination for discovery on this point.

[45] Mr. Stavenow presented as a straightforward person. He is a credible witness. I find that his evidence is not, however, reliable with respect to what Ms. Bayford said about Version 1. He was in the middle of his workday, moving from one customer to the next. By Mr. Stavenow’s estimate, his conversation with Ms. Bayford lasted three to five minutes. Mr. Stavenow and Ms. Bayford were not the only people in the store at the time. Mr. Stavenow was taken aback by the nature of Ms. Bayford’s conversation with him. I find that, in the circumstances, he misunderstood what Ms. Bayford said about Version 1.

[46] Mr. Stavenow’s evidence with respect to the date on which Ms. Bayford was in the store assists in understanding the chronology of events leading to Ms. Bayford finding Version 2. Ms. Bayford was at the store on June 26, 2015—13 days after Bruce died.

[47] Ms. Desarmia testified that “a couple of weeks” after Bruce passed away, she met Ms. Bayford by chance in downtown Arnprior. On that occasion, Ms. Bayford mentioned that she could only find Version 1. Ms. Desarmia responded by informing Ms. Bayford of the existence of Version 2.

[48] Ms. Bayford’s evidence is that the chance meeting with Ms. Desarmia occurred three or more weeks after the date of Bruce’s death. The difference between Ms. Bayford’s estimate and Ms. Desarmia’s estimate as to when that meeting took place is not so significant as to amount to contradictory evidence. I find that the chance meeting occurred within two or more weeks following Bruce’s death—including that it occurred after Ms. Bayford attended at Mr. Stavenow’s store.

[49] Neither Ms. Desarmia nor Ms. Gordon was cross-examined as to any other circumstances under which they might have met with Ms. Bayford following Bruce’s death (including to address the lack of witness signatures on Version 1). I accept the evidence of both Ms. Bayford and Ms. Desarmia with respect to the occurrence of their chance meeting and the substance of their conversation at that time.

[50] Ms. Bayford testified that within half an hour of concluding her conversation with Ms. Desarmia, she returned to the farm to search again for the 2013 Will. Her evidence, which I accept, is that she:

• re-checked the drawers of the filing cabinet;
• found a ladder in the house and checked at higher levels in the kitchen; and
• found Version 2 in an envelope on top of a cupboard in the kitchen.

[51] Ms. Bayford testified that she and Bruce placed the Power of Attorney for property on top of a cabinet in the kitchen where the microwave was kept. She found Version 2 on the top of another cabinet in the kitchen. Ms. Bayford was not cross-examined as to why the Power of Attorney was placed on the top of a cabinet, given that Bruce had an office and a filing cabinet. Nor was Ms. Bayford cross-examined as to why Version 2 would have been on the top of a kitchen cabinet rather than in the filing cabinet.

[52] Based on Ms. Bayford’s evidence, I draw an inference and find that it would not have been unusual for Bruce to place the 2013 Will on the top of a kitchen cupboard. I accept Ms. Bayford’s evidence that she found Version 2 on the top of a kitchen cupboard.

[53] The theory of Brian’s case is that Ms. Bayford colluded, conspired, or connived with Ms. Desarmia and Ms. Gordon to create Version 2. I find that Ms. Bayford’s conduct in the days and weeks following Bruce’s death runs contrary to that theory. Ms. Bayford’s conduct enhances the credibility of her evidence as to when and how she discovered the existence of Version 2:

• Why would she, on the day following Bruce’s death, attend at Mr. Colbert’s office with Version 1 and acknowledge to Ms. Fraser that she did not have a fully-executed version of the 2013 Will?
• Why, approximately 12 days after speaking with Ms. Fraser, would Ms. Bayford acknowledge publicly (to Mr. Stavenow in front of others) that the 2013 Will was unsigned in some way?

c) The Original of Version 1

[54] Brian argues that a negative inference should be drawn against Ms. Bayford because she did not produce the original of Version 1 as part of her evidence at trial. A photocopy of Version 1 is Exhibit 2 in this trial.

[55] Ms. Bayford’s evidence at trial is that on the day after she found Version 2, she drove to the office of an Ottawa law firm, Low Murchison Radnoff (“LMR”), with the intention of meeting with a lawyer. She was able to do so and, ultimately, LMR was retained to represent Ms. Bayford with respect to an application for a certificate of appointment as Estate Trustee.

[56] As to the timing of her meeting at LMR, Ms. Bayford testified that in the weeks following Bruce’s death, her husband was in the hospital, having suffered a heart attack. She waited until after her husband was home from the hospital before she went to see a lawyer.

[57] Ms. Bayford was cross-examined as to the whereabouts of Version 1. Her evidence at trial is that when she met with the LMR lawyer, she left that individual with the originals of both Version 1 and Version 2. In cross-examination, Ms. Bayford was taken to question 173 from her examination for discovery: “What became of [the] original of [Version 1]?” To that question on examination for discovery Ms. Bayford responded, “I have misplaced it as well as the direct funds that were to go to the funeral home”. When presented at trial with that question and answer, Ms. Bayford responded:

• She did not recall being asked that series of questions;
• “I know it went to my lawyers”; and
• “I may have said that, but everything went to my lawyer”.

[58] I find that Ms. Bayford’s evidence at trial in that regard is a correction of her answer given on examination for discovery.

[59] There is no evidence that Ms. Bayford’s discovery answer was corrected in accordance with the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. There is also no evidence as to why that answer was not corrected prior to trial. Subrule 31.09(1) sets out the obligation on a party to correct an answer when it is subsequently discovered that an incorrect answer was given on examination for discovery. The potential sanctions for failure to correct an answer are prescribed by subrule 31.09(3).

[60] The sanctions imposed under subrule 31.09(3) depend on whether the corrected answer is favourable or unfavourable to the party’s case. Where the information subsequently discovered is favourable to the party’s case, “the party may not introduce the information at trial, except with leave of the trial judge” (r. 31.09(3)(a)). Where the information subsequently discovered “is not favourable to the party’s case, the court may make such order as is just” (r. 31.09(3)(b)).

[61] Brian did not object to the admission of Ms. Bayford’s evidence at trial as to what she had done with Version 1. In any event, and as I have already noted, the existence of the original of Version 1 does not affect the validity of Version 2. For that reason, it is difficult to classify the corrected information as favourable to Ms. Bayford’s case.

[62] I also consider that if the existence of the original of Version 1 was significant to Brian’s case, there were several options available to him arising from Ms. Bayford’s evidence that she left that document at the offices of LMR. Those options included (a) asking Ms. Bayford to obtain the original from LMR and produce it at trial, (b) serving a summons on the lawyer at LMR whom Ms. Bayford retained and requiring that individual to bring their file (including the original of Version 1) to the trial, and (c) arranging for the forensic document examiner (see below) to inspect the original of Version 1. Any one or more of those steps could have been taken, even if it meant an adjournment of the trial for a brief period or otherwise.

[63] It was not incumbent upon Ms. Bayford to produce the original of Version 1. The existence of that document is relevant to the theory of Brian’s case, not to the theory of Ms. Bayford’s case. Regardless, after its existence was disclosed at trial, Brian chose not to pursue the production of the original of Version 1.

[64] As a result, I find there is no prejudice to Brian by reason of Ms. Bayford’s correction, at trial, of her answer on discovery with respect to what she did with Version 1. Ms. Bayford’s evidence in that regard is admitted.

d) The Original of Version 2

[65] There is no evidence that LMR filed anything other than the original of Version 2 in support of Ms. Bayford’s application for Certificate of Appointment of Estate Trustee. I take judicial notice of the fact that the original of the 2013 Will would have had to be filed with that application unless Ms. Bayford sought an order that a Certificate issue in respect of a copy of the 2013 Will because the original could not be located. There is, however, no evidence that the application for a Certificate of Appointment is made on the latter basis.

e) Forensic Document Examiner

[66] Jane A. Lewis was called by Brian to give expert opinion evidence with respect to Bruce’s signature as it appears in Versions 1 and 2. Ms. Lewis has, since 2001, been a forensic document examiner working in Milwaukee, Wisconsin. Her previous work experience includes service with the Wisconsin State Crime Laboratory, the United States Secret Service, and the FBI. Her qualifications were not questioned by the plaintiff.

[67] Ms. Lewis was qualified to give opinion evidence on two matters. First, she was permitted to give opinion evidence as to whether the photocopies that were made of Exhibit 1 (Version 2) and Exhibit 2 (Version 1) were forgeries based on comparison with other documents containing signatures known to be Bruce’s. Second, Ms. Lewis was permitted to give opinion evidence as to whether the signature on Exhibits 1 and 2 are the same—with one signature being a copy of the other.

[68] Ms. Lewis was never provided with nor did she ever see the original of either document. Her opinion is based entirely on a comparison of photocopies. Brian did not call any evidence to explain why Ms. Lewis was not given the opportunity to inspect the original documents. There is no evidence that requests to inspect either document were served and refused. There is no evidence of any failed negotiations with respect to production of originals for inspection.

[69] Ms. Lewis’ evidence is that, based on her review of photocopies of the documents;

• she could neither identify or eliminate Bruce as the person who signed each of Version 1 and Version 2; and
• it was “completely likely” that Bruce’s signature as it appears on Version 1 and Version 2 are copies of the same signature.

[70] Ms. Lewis testified that with average-or-better quality photocopies a forensic document examiner is able to carry out their work “quite well”. She acknowledged, however, that having original documents available is always “the best way” and “preferable”. She also testified that nothing about the documents led her to consider that the signature on one of the documents was traced from the other.

[71] In the written submissions delivered on Brian’s behalf, Ms. Lewis’ evidence is described as “clear and unequivocal”. That description is an overstatement of the nature of the Ms. Lewis’ opinion evidence.

[72] It is, in any event, difficult to understand how Ms. Lewis’ evidence is helpful to Brian. As discussed below, I find both Ms. Desarmia and Ms. Gordon to be credible witnesses with respect to the circumstances surrounding the execution of the 2013 Will. Ms. Lewis’ evidence does nothing to detract from the credibility of Ms. Desarmia and Ms. Gordon in that regard. Ms. Lewis’ evidence does not support a finding that Ms. Bayford colluded, connived, or conspired with Ms. Desarmia and Ms. Gordon with respect to Version 2.

f) Execution of the 2013 Will

[73] The only evidence with respect to the execution of the 2013 Will is from Ms. Desarmia and Ms. Gordon. Both testified that they were at the farm on the afternoon of August 15, 2013, albeit for different reasons. Neither went to the farm expecting to be a witness to Bruce’s signature on the 2013 Will. Each testified that they were asked by Bruce that afternoon to witness his signature on his Will and agreed to do so.

[74] In summary, Ms. Desarmia’s evidence was:

• Ms. Bayford is the cousin of Ms. Desarmia’s ex-husband; Ms. Desarmia had known Bruce for eight to ten years, having met him through Ms. Bayford;
• Ms. Bayford and Ms. Desarmia are friends who see one another during the summer months. They also see one another when working together on the large and labour-intensive, annual, theme-based Halloween displays that Ms. Bayford has in her yard at her home in Arnprior;
• Although Ms. Desarmia does not typically help with work on Halloween displays until early October each year, the work on the 2013 display began early because the display was going to be so expansive;
• Ms. Desarmia went to the farm late in the afternoon on August 15, 2013 (at 4:30 p.m., after finishing work at 4:00 p.m.) to help Ms. Bayford with work on the western-themed Halloween display;
• Ms. Desarmia saw Bruce, who expressed frustration about not being able to get his will done. In response, Ms. Desarmia explained that Bruce did not need to go to his lawyer’s office to sign the Will and have his signature witnessed;
• Ms. Desarmia offered to assist Bruce by witnessing his signature on the will. Bruce accepted that offer;
• Bruce, Ms. Desarmia, and Ms. Gordon were in the kitchen of the farmhouse when Bruce signed the will and the two women witnessed his signature; and
• After witnessing Bruce’s signature on the will, Ms. Desarmia remained at the farm for approximately two or three hours to assist Ms. Bayford with the work on the Halloween display.

[75] Ms. Desarmia is college-educated. When she testified at trial in the fall of 2018, she was employed as the office manager with the Arnprior and District Family Health Team. Ms. Desarmia was not cross-examined as to any potential motive she had to assist Ms. Bayford in perpetrating a fraud with respect to the 2013 Will. She acknowledged in cross-examination that she understood the significance and potential consequences of perjury. Ms. Desarmia concluded her cross-examination stating that she did not wish to recant any of her evidence, and added, “I do know that I witnessed him sign his will.”

[76] I turn to Ms. Gordon’s evidence. In summary, her evidence was:

• In 2013, Ms. Gordon was living on the same street as Mr. and Mrs. Bayford. Ms. Gordon knew Bruce, having met him previously when he was at the Bayford home helping with the Halloween display. As of 2013, Ms. Gordon had known Bruce, as an acquaintance or friend, for about ten years;
• August 15, 2013 was Ms. Gordon’s mother’s birthday. Ms. Gordon was hosting a large family celebration at her home that evening;
• Ms. Gordon knew that Ms. Bayford was at Bruce’s farm that afternoon. Ms. Gordon went to the farm to get tomatoes to add to hamburgers she intended to cook that evening;
• While at the farm, she was asked by Bruce if she would do him the favour of witnessing his will;
• Ms. Gordon, Bruce, and Ms. Desarmia were in the kitchen of the farmhouse when Bruce signed the will and the two women witnessed his signature;
• Ms. Gordon left the farm shortly after witnessing Bruce’s signature on the will; Ms. Desarmia remained at the farm.

[77] Ms. Gordon works as a rental agent. As of November 2018, when she testified at trial, she had moved to and was living in Ottawa. Ms. Gordon was not cross-examined as to any potential motive she had to assist Ms. Bayford in perpetrating a fraud with respect to the 2013 Will. She denied that she was fabricating her evidence.

[78] There are discrepancies between the evidence at trial of Ms. Desarmia and Ms. Gordon with respect to the specific mechanics of Bruce signing the will and their witnessing of his signature. For example, Ms. Desarmia testified that she believed that both she and Ms. Gordon remained standing while Bruce was seated at the kitchen table when he signed the 2013 Will. Ms. Gordon’s evidence was that she believed she was the only person standing and that both Bruce and Ms. Desarmia were seated. Ms. Gordon acknowledged, however, that she was not entirely certain in that regard.

[79] There were also some inconsistencies between their respective evidence on examination for discovery and their evidence at trial. In cross-examination at trial, Ms. Desarmia testified that Bruce used one pen and both she and Ms. Gordon used another pen when signing the 2013 Will. On examination for discovery, Ms. Desarmia’s evidence was that the three of them all used the same pen. When taken to that answer, Ms. Desarmia changed her evidence at trial and agreed “we used one pen”.

[80] These inconsistencies are in keeping with the frailty of human memory, including with the passage of time, and do not cause me concern with respect to the credibility of either Ms. Desarmia or Ms. Gordon.

[81] In the written submissions delivered on Brian’s behalf, reference is made to an alleged inconsistency between Ms. Gordon’s evidence on examination for discovery and her evidence at trial with respect to the order in which she, Bruce, and Ms. Desarmia each signed the will. Brian relies on that alleged inconsistency in an effort to undermine the evidence relied on by Ms. Bayford with respect to the execution of the will.

[82] It was Ms. Gordon’s evidence at trial that Bruce signed the will, and “slid” the will to Ms. Gordon. She witnessed Bruce’s signature, followed by Ms. Desarmia. That evidence is consistent with Ms. Desarmia’s evidence at trial with respect to the order in which the three individuals signed the document.

[83] In cross-examination, Ms. Gordon was taken to a series of questions and answers from her examination for discovery. The key point from that series of questions and answers was Ms. Gordon’s description of Bruce signing the document last—after both witnesses had signed it. Ms. Gordon did not, however, recall that series of questions and answers. She repeated her earlier evidence that she believed that Bruce signed first, followed by Ms. Gordon and then Ms. Desarmia. She also acknowledged that she could not be certain of the order in which the document was signed.

[84] I find that Ms. Gordon’s uncertainty about the order in which the document was signed is in keeping with the nature of the event. Ms. Gordon was unexpectedly asked to do a favour for a friend. The signing of the will took only five to ten minutes (by Ms. Gordon’s estimate). This event occurred on what was a busy day for Ms. Gordon; she was preparing for a large family celebration of her mother’s birthday. Her lack of certainty about the order in which the document was signed does not negatively impact on my assessment of Ms. Gordon’s credibility.

[85] For the following reasons, I find that Bruce was the first person to sign the will, followed by Ms. Gordon and Ms. Desarmia. First, I accept the evidence at trial of Ms. Desarmia and Ms. Gordon in that regard. I find that Ms. Gordon was mistaken in her answer on examination for discovery.

[86] Second, Ms. Desarmia is college-educated and, as of 2013, held an administrative position. Ms. Gordon was a rental agent. Based on their respective education and/or work experience, I draw an inference and find that they each had sufficient experience in completing paperwork to know that a witness to a document signs after the document is signed by the principal signatory.

g) Affidavits of Execution

[87] In the written submissions on Brian’s behalf, reference is made to the affidavits of execution. It is undisputed that both Ms. Desarmia and Ms. Gordon swore affidavits of execution in support of Ms. Bayford’s appointment as estate trustee named in the 2013 Will. The affidavits were not presented to the witnesses for authentication and entry as exhibits at trial.

[88] Bruce died in June 2015. Based on the circumstances in which Ms. Bayford discovered the 2013 Will, I draw an inference and find that the affidavits of execution were sworn by each of Ms. Desarmia and Ms. Gordon sometime after Bruce’s death.

[89] Neither of Ms. Desarmia or Ms. Gordon was cross-examined at trial about the circumstances under which they swore their respective affidavits of execution. They were not questioned (including during cross-examination) as to what motivation, if any, they had, other than to attest to the truth, when swearing those affidavits. There is no evidence to support a finding that, when the affidavits of execution were sworn, Ms. Desarmia and Ms. Gordon were colluding, conniving or conspiring with Ms. Bayford with respect to the 2013 Will.

Summary

[90] I find that the 2013 Will was executed in accordance with s. 4(1) of the SLRA.

[91] I order that, upon the filing with this court of the requisite application materials, including the originally executed 2013 Will, a Certificate of Appointment as Estate Trustee of the Estate of Bruce Boese shall be issued to Brenda Bayford in respect of the originally executed 2013 Will.

[92] If any further orders are required and the parties are unable to agree upon the terms of those orders, then the parties may schedule an appearance before me to address those matters.

Costs

[93] In the event the parties are unable to agree upon one or both of the scale for and quantum of costs, they shall make submissions as follows:

a) The submissions shall be limited to a maximum of four pages (excluding the bill of costs);

b) Written submissions shall comply with Rule 4 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194;

c) Hard copies of any case law or other authorities relied on shall be provided with the submissions and shall comply with Rule 4 of the Rules of Civil Procedure with respect to font size;

d) The submissions, the documents referred to therein, case law, and other authorities, shall be on single-sided pages;

e) Written submissions shall be delivered pursuant to the following deadlines:

• By the plaintiff, no later than 4:00 p.m. on the twentieth business day following the date on which this ruling is released;
• By the defendant(s), no later than 4:00 p.m. on the thirtieth business day following the date on which this ruling is released; and
• By the plaintiff in reply, if any, no later than 4:00 p.m. on the thirty-fifth business day following the date on which this ruling is released. Reply submissions, if any, shall comply with paragraphs (a) to (d) above.

[94] If no submissions are delivered pursuant to subparagraph (e) above, there will be no further order with respect to costs.

Madam Justice Sylvia Corthorn

Date: October 1, 2019