COURT FILE NO.: 01-4293/18
DATE: 20191210
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE MATTER OF THE ESTATE OF ZENTA AUSMA PALMA, deceased
BETWEEN:
RONALD JOMA
Applicant/Moving Party
– and –
ROBERT JAUNKALNS, in his capacity as ESTATE TRUSTEE OF THE ESTATE OF ZENTA AUSMA PALMA
Respondent/Responding Party
Alexander Turner, for the Applicant/Moving Party
Emilio Bisceglia, for the Respondent/Responding Party
HEARD: November 18, 2019
REASONS FOR DECISION
Dietrich J.
[1] This matter involves the estate of Zenta Ausma Palma (the “Deceased”), who died a widow, without children, on September 27, 2018. Her siblings and her only niece, Brigita Joma, predeceased her.
[2] The Deceased was survived by the moving party, Brigita’s brother and the Deceased's nephew, Ronald Joma (“Mr. Joma”). Mr. Joma is not a beneficiary under the Deceased’s last will and testament, executed by her on July 13, 2012 (the “2012 Will”). The Deceased was also survived by Brigita’s children, Michael Joma-Jaunkalns (“Michael”) and Emily Joma-Jaunkalns (“Emily”). Mr. Joma, Michael and Emily are the Deceased’s next-of-kin.
[3] Brigita’s husband, a widower, is Robert Jaunkalns. He is named as the executor and trustee under the 2012 Will. The alternative executor and trustee is Mr. Jaunkalns’s brother, Vincent Jaunkalns, and Victor’s three children are named as legatees under the 2012 Will. Michael and Emily are the residual beneficiaries under the 2012 Will.
[4] To successfully bring his challenge to the 2012 Will, Mr. Joma must show that he has a financial interest in the Deceased’s estate, and that he has met a minimal evidentiary basis threshold for sustaining his notices of objection. Accordingly, he brings this motion for directions, which would include the production of documents.
[5] For the reasons that follow, I find that Mr. Joma has a financial interest in the Deceased’s estate and has met the minimal evidentiary basis threshold. An order giving directions shall issue.
Position of the Parties
[6] Mr. Joma asserts that he has a financial interest in the estate, because he would share in the Deceased’s estate on an intestacy. Also, he was named as a residual beneficiary under an earlier will. Such an earlier will has not been located, but Mr. Joma asserts that he was told by the Deceased that she made a will in which Brigita was named as the executrix and trustee, and he was named as the alternative executor and trustee. He would receive one half of the Deceased’s estate. The other half would go to Brigita’s children, Michael and Emily.
[7] Mr. Joma further asserts that his evidence respecting the circumstances surrounding the execution of the 2012 Will satisfy the minimal evidentiary burden. These include the facts that the Deceased was taking anti-anxiety medication around that time and was vulnerable. She was then 84 years of age, living alone and grieving the loss of her only two siblings and her niece Brigita, who died by suicide. The only family members who lived close by were Michael, Emily and their father, Mr. Jaunkalns. Mr. Joma alleges that at that time the Deceased lacked testamentary capacity and was unduly influenced by Mr. Jaunkalns.
[8] Mr. Jaunkalns concedes that Mr. Joma has a financial interest in the estate. However, he asserts that Mr. Joma is on a “fishing expedition” based on speculation and therefore disputes that Mr. Joma can meet the minimal evidentiary burden. He asserts that Mr. Joma’s evidence is mere suspicion, which is insufficient to discharge Mr. Joma’s onus.
The Evidence
a) Evidence of Mr. Joma
[9] The Deceased executed the 2012 Will on July 13, 2012. Earlier, in June 2010, she had executed a power of attorney for property in which Mr. Joma was named as her attorney for property. The Deceased’s husband of 61 years had died in 2009. The Deceased then looked to her sisters, Gundega Eiche and Vija Joma (“Vija”), Brigita, and Mr. Joma, for support. Vija is the mother of Brigita and Mr. Joma. Vija and Brigita lived in Toronto as did the Deceased, and the Deceased relied on them for transportation to church, social functions and events in the Latvian community. Mr. Joma, a chartered accountant living in New Jersey, assisted the Deceased, by telephone, with her financial affairs.
[10] Over the span of a little more than a year, the Deceased lost three of the four family members. Brigita died by suicide in April 2011; Gundega died suddenly in December 2011; and Vija died after a short illness in June 2012. Her only remaining close blood relatives were Mr. Joma and Brigita’s children, Michael and Emily.
[11] Mr. Joma asserts that the deaths of Brigita, Gundega and Vija left the Deceased emotionally unstable and that she told him that she had been prescribed medication to cope with the losses. Specifically, Mr. Joma’s evidence is that he saw the Deceased taking pills at the time of Brigita’s funeral in 2011 and that she told him that they were prescribed to “tranquilize” her. When Vija fell ill and was hospitalized before her death in 2012, the Deceased told Mr. Joma that she was taking anti-anxiety medication.
[12] Following Brigita’s death, in 2011, Mr. Joma’s evidence is that the Deceased told him that Brigita’s share of the estate would pass to Michael and Emily. In October 2011, the Deceased gave Mr. Joma written instructions regarding her investment accounts and a safety deposit box.
[13] Mr. Joma’s evidence is that he came to Toronto twelve times between 2011 and 2012. Further, he deposed that notwithstanding that the Deceased relied on him, expressed to him her testamentary intentions, and gave him instructions regarding her finances during that time, he was not named as an executor and trustee or beneficiary under the 2012 Will. Instead, Mr. Jaunkalns was named the executor and trustee, and Mr. Jaunkalns’ brother, Viktors Jaunkalns, was named the alternative executor and trustee. Mr. Jaunkalns’ children, Michael and Emily, were named the residual beneficiaries of the entire residue of the estate, while Viktors’ children were named legatees.
[14] Mr. Joma asserts that the Deceased was unduly influenced by Mr. Jaunkalns to make the 2012 Will that excluded Mr. Joma.
b) Evidence of Mr. Jaunkalns
[15] Mr. Jaunkalns’ evidence is that about a year before she passed away, the Deceased handed to him a copy of the 2012 Will and a power of attorney for property naming him as her attorney for property. She told him that she wanted him to have them.
[16] Mr. Jaunkalns attests that he did not accompany the Deceased to the lawyer’s office when she prepared the 2012 Will and that he does not know the lawyer who drafted that will. He deposed that he and his family, including his brother Victor and Victor’s children, were very close to the Deceased. From 2001 onward, family functions included the Deceased and her husband, and these family functions were always held at the residence he shared with Brigita. He deposed that Mr. Joma, who has been residing in the U.S.A. for the past 20 years, was not part of the family gatherings and that Mr. Joma has never met Michael and Emily.
[17] Mr. Jaunkalns further deposed that the Deceased did not rely on Mr. Joma for her financial and personal affairs and was not in frequent contact with him. Mr. Joma was asked to provide his phone records and he did not, stating that he no longer has the records for calls made eight or nine years ago.
[18] For 31 years, Mr. Jaunkalns has been a senior staff physician at Sunnybrook Health Sciences Centre, where he runs the medical psychiatry program. For the past 25 years, he has taught the senior resident course on delirium, cognitive impairment, and consent and capacity issues. Mr. Jaunkalns concedes that it would not be appropriate for him to provide expert evidence in this case, but he deposed that it is his “informed opinion” that the Deceased was “of sound mind” and had “no cognitive difficulties whatsoever.” He testified that at all materials times, the Deceased continued to drive herself to buy groceries, to do her banking and to do her volunteer activities at the Latvian community centre. He testified that it was not until 2017 or 2018 that she gave up her driver’s licence. His evidence is that the Deceased was directing her financial affairs up until “the day before she died.”
[19] Mr. Jaunkalns deposed that the Deceased was not taking any prescription medication that affected her mental capabilities. However, in cross-examination, he conceded that he did not know what prescription medication the Deceased was taking but nonetheless asserted that “[h]er mental capabilities were fine.”
[20] Mr. Jaunkalns’ evidence is that the Deceased had reason not to trust Mr. Joma. Mr. Jaunkalns asserts that Mr. Joma’s mother, Vija, was ill and, immediately prior to her death, Mr. Joma arranged to have Vija’s house transferred into the names of Vija and himself as joint tenants with right of survivorship. This resulted in litigation between Brigita’s children and Mr. Joma following Vija’s death. Mr. Jaunkalns asserts that the Deceased was aware of this litigation and it was pivotal in turning her against Mr. Joma.
The Evidentiary Threshold
[21] The issue in this matter is whether Mr. Joma has met the evidentiary threshold required to be granted his request for the 2012 Will to be proven.
[22] Mr. Jaunkalns concedes that Mr. Joma has a financial interest in the estate which grounds his motion for directions pursuant to rule 75.06 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
[23] As an “interested person”, pursuant to rule 75.06(1), Mr. Joma must meet some minimal evidentiary threshold. The Ontario Court of Appeal, in Neuberger Estate v. York, 2016 ONCA 191, at para. 89, held that he must “adduce, or point to, some evidence which if accepted, would call into question the validity of the testamentary instrument that is being propounded.”
[24] In Martin v. Martin, 2018 ONSC 1840, at para. 35, Pattillo J. stated that when the next step in the proceeding is documentary discovery, the threshold to maintain an objection is low, “but the evidence supporting the validity of the objection must be more than the suspicion of the objector.”
[25] I am satisfied that the evidence adduced by Mr. Joma amounts to more than suspicion and, if accepted, would call into question the validity of the 2012 Will. Mr. Joma points to evidence that shows that the Deceased, an 84-year-old widow, was reliant on her two sisters and her niece and nephew for support and assistance. In a little over a year, all but her nephew passed away. It is Mr. Joma’s evidence that the Deceased had been taking prescribed medication that, at the time of her niece’s death in 2011, the Deceased said would “tranquilize” her. He also points to evidence that the Deceased was taking anti-anxiety medication or sedatives around the time of the Deceased’s sister Vija’s illness and death in June 2012, the month before she executed the 2012 Will.
[26] Mr. Jaunkalns, a physician with experience assessing capacity, deposed that the Deceased never had any cognitive impairment. I find this to be a broad conclusory statement. Mr. Jaunkalns offers no evidence of having examined the Deceased or knowing exactly what medication she was taking, when, and in what dosage. That the Deceased was or could have been using prescription medication that could have a “tranquilizing” effect around the time she made the 2012 Will raises more than a suspicion that her testamentary capacity could have been affected.
[27] A review of the Deceased’s medical records would assist in determining the question of whether the medication that the Deceased was taking around the time she executed the 2012 Will could have had an impact on her capacity to make a will.
[28] Notes on what medication the Deceased was taking around the time she made the 2012 Will might also be found in the file of the drafting solicitor.
[29] Mr. Joma also adduces evidence to suggest that the Deceased may have been vulnerable to undue influence, in particular, by Mr. Jaunkalns. At the time she made the 2012 Will, she was 84 years of age and could no longer rely on her only two siblings and her niece for support. Her nephew lived in the United States and was not a frequent visitor to Toronto. Mr. Jaunkalns’ evidence is that the Deceased gave him a power of attorney naming him as her attorney for property, but he has failed to produce it. When asked, he also declined to answer the question of whether he had asked the Deceased for money. Mr. Joma testified that it was himself who had been given a power of attorney by the Deceased and that the Deceased had given him detailed instructions for her investment accounts in the year before the 2012 Will was executed.
[30] Mr. Jaunkalns testified that the Deceased had turned against Mr. Joma and cut him out of the 2012 Will, because of Mr. Joma’s conduct at the time of Vija’s death. In response to Mr. Jaunkalns’ evidence that Mr. Joma’s conduct around the time of Vija’s cremation caused the Deceased to distrust and turn against Mr. Joma, Mr. Joma asserts that Mr. Jaunkalns’ evidence on this point is inconsistent. In the affidavit sworn by Mr. Jaunkalns in 2012, he attests that the Deceased was welcomed at Vija’s cremation but Mr. Jaunkalns and his family were not. However, in a later affidavit and on cross-examination, Mr. Jaunkalns testified that he, his family, and the Deceased were not invited to the cremation, that they attended regardless, and a confrontation ensued. Mr. Joma asserts that the Deceased was welcomed and did attend the cremation. There is no corroborating evidence of either Mr. Joma’s or Mr. Jaunkalns’ version of Mr. Joma’s conduct around the time of Vija’s death.
[31] Mr. Joma’s evidence includes Mr. Jaunkalns’ refusal to respond to the question about whether he had asked the Deceased for money. Mr. Jaunkalns also declined to produce the power of attorney for property that authorized him to transfer funds on behalf of the Deceased.
[32] Mr. Joma’s evidence of Mr. Jaunkalns’ involvement in the Deceased’s finances raises the spectre of the latter’s potential undue influence over the Deceased concerning the disposition of her estate. Mr. Joma points to a banking transaction undertaken by Mr. Jaunkalns on behalf of the Deceased that upset the Deceased and she asked Mr. Jaunkalns to reverse it immediately. Mr. Jaunkalns stands to gain, albeit indirectly, if the Deceased left the residue of her estate to his children to the exclusion of Mr. Joma.
[33] A review of the Deceased’s financial records could assist in determining who had authority to deal with the Deceased’s accounts, over what period of time, and what transactions, if any, were undertaken on the Deceased’s behalf.
[34] A review of the solicitor’s notes could assist in determining the rationale for the Deceased’s decision not to include Mr. Joma as a beneficiary of her 2012 Will notwithstanding that she had told him that he was a beneficiary of her estate and she entrusted him with instructions relating to her investment accounts.
[35] I do not find that the production of the medical records, the financial records and the will- drafting solicitor’s file in this case would result in a “fishing expedition” of the type described by Myers J. in Seepa v. Seepa, 2017 ONSC 5368. Rather, I find that Mr. Joma “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”: Seepa, at para. 35.
Disposition
[36] I make no findings concerning the evidence at this stage except insofar as I am satisfied that the applicant/moving party, Mr. Joma, has met his onus. He has established the minimal evidentiary threshold to permit his request that the 2012 Will be proven.
[37] Accordingly, an order shall issue for the production of the solicitor’s file relating to the Deceased’s 2012 Will, as well as the medical records of the Deceased, covering the period from 2011 until the 2012 Will was executed in July 2012, and the Deceased’s financial records since 2011. The parties are strongly encouraged to agree on a timetable for the exchange of pleadings in the action. If the parties cannot agree on the order giving directions, they may attend a 9:30 am chambers appointment before me to settle the terms of the order.
Costs
[38] Mr. Joma, having succeeded in his motion, is entitled to his costs from the responding party, Mr. Jaunkalns, as Estate Trustee of the Estate of Zenta Ausma Palma. The parties are encouraged to agree on the matter of costs. Should they be unable to agree, the moving party may serve and file written submissions on costs not exceeding three pages in length (excluding a bill of costs or costs outline and offers to settle, if any), within 14 days. The responding party shall serve and file written costs submissions not exceeding three pages in length (excluding a bill of costs or costs outline and offers to settle, if any) 14 days thereafter. Reply submissions may only be made with leave.
Dietrich J.
Released: December 10, 2019
COURT FILE NO.: 01-4293/18
DATE: 20191210
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE MATTER OF THE ESTATE OF ZENTA AUSMA PALMA, deceased
BETWEEN:
RONALD JOMA
Applicant/Moving Party
– and –
ROBERT JAUNKALNS, in his capacity as ESTATE TRUSTEE OF THE ESTATE OF ZENTA AUSMA PALMA
Respondent/Responding Party
REASONS FOR DECISION
Dietrich J.
Released: December 10, 2019