COURT FILE NO.: 1401/19

DATE: 20191206

ONTARIO SUPERIOR COURT OF JUSTICE

IN THE MATTER OF the Succession Law Reform Act, S.O. 1990, c. s. 26

AND IN THE MATTER OF the Estate of Madge Olive Linton

Peter Tijiri, in his capacity as Estate Trustee for the Estate of Madge Olive Linton

Applicant

Joseph J. Neal, for the Applicant

John O’Sullivan, for the Respondents

HEARD: November 29, 2019

Woodley, J.

OVERVIEW

[1] This application seeks to prove in solemn form the last Will and Testament of Madge Olive Linton dated November 25, 2014.

[2] The application was required as the attesting witnesses to the Will refused to swear an affidavit of execution. The Estate Trustee was therefore required to prove the Will in solemn form as to due execution before a Certificate of Appointment of Estate Trustee with a Will could issue from the Court.

ISSUE

[3] There is one issue to be determined on this application: Has the Estate Trustee, Peter Tijiri, proven the Last Will and Testament of Madge Linton dated November 25, 2014, in solemn form as to due execution?

FACTS

[4] Madge Olive Linton (“Madge”) was born on May 17, 1961, and died on April 9, 2018, at 56 years of age.

[5] At her death Madge was survived by her spouse Peter Tijiri (“Peter) and their two daughters S.C.L.-T. (born 1992) and N.L.-T. (born 1999). [^1]

[6] Following Madge’s death, Peter retrieved from his papers what he believed to be Madge’s last Will dated October 18, 2009.

[7] The October 18, 2009 Will was located with Peter’s last Will, which is a mirror Will of Madge’s Will bearing the same date, October 18, 2009.

Will dated October 18, 2009

[8] Although there is no application before me regarding the October 18, 2009 Will, there was great discussion about it at the hearing. For this reason - I will review the document.

[9] Peter testified that he couldn’t remember whether he or Madge filled in the empty spaces contained in the 2009 pre-printed Will prior to execution but recalled that they prepared and executed the Wills together.

[10] Madge’s 2009 Will was prepared using a Will Kit blank form document from “SELF-COUNSEL PRESS-CDN-W (2-1) O1”. As noted, the Will was prepared in conjunction with Peter, who executed a mirror Will on the same date, using the same witnesses.

[11] The Will Kit blank form contains pre-printed clauses accompanied by blank spaces to be completed by the testator used to insert information including their choice of executor, beneficiaries, guardians, and assets to be distributed (for example).

[12] My review of Madge’s 2009 Will indicates that the testator and/or drafter who inserted the information into the blank portions of the 2009 Will did not understand the import of the legal language used in the pre-printed portion of the Will. The result is that the 2009 Will contains serious errors.

[13] The dispositive portions of the 2009 Will are found at page 2, paragraph 4 of the Will and provide as follows:

4. Any beneficiary who dies within a period of 30 days following my death will be deemed not to have survived me, and their gift will then become part of the residue of my estate.

a. I DISTRIBUTE my assets as follows:

Jewellery, clothing

Equity in the properties of xxx xxx Drive, xxx, and xxx xxx Street, xxx, Ontario.

Savings, Bonds, RRSP.

b. I DISTRIBUTE any residue of my estate as follows:

Contents of home to Peter Tijiri and/or (two daughters) S.C.L.-T. and N.L.-T.

[14] As for para 4a, there is no beneficiary noted for the specific assets listed. This failure to designate a beneficiary could result in a finding that the listing of assets is inconsequential, and all assets are to be distributed as per para 4 b. or that the listing of the assets is of consequence and as there is no designated beneficiary the assets would be distributed on intestacy.

[15] As for para 4b., despite the direction to distribute the “residue” - the drafter inserted “contents of the home” which is a specific bequest unless it is intended that the “contents of the home” represented the residue remaining after distribution at para 4a. above (which has no designated beneficiary). Further, even if all assets were found to be distributed pursuant to para 4b – distribution remains uncertain as the use of “and/or” does not provide any clear direction as to the mode of distribution (is it a gift over or an outright gift) or the relative shares to be distributed (one, two, or three).

[16] My point in reviewing this 2009 Will is that on a plain reading of the document it does not necessarily provide for distribution in the manner that the witnesses to this proceeding have suggested. Further, and more importantly, the 2009 Will is not relevant to my determination of whether the 2014 Will was duly executed.

Payment of Insurance Proceeds

[17] Following Madge’s death, Peter located and forwarded a copy of Madge’s October 18, 2009 Will to Madge’s insurance broker seeking payout of insurance proceeds.

[18] Coincidentally, Madge’s insurance broker is one of the attesting witnesses to Madge’s 2014 Will who appeared as a witness at this application. The insurance broker (Karen F.) acknowledged that following Madge’s death, Peter provided her with a copy of Madge’s 2009 Will for the purpose of obtaining payout of insurance proceeds.

[19] Peter testified that he did receive payment of Madge’s insurance proceeds – which were presumably paid to Peter as Executor under the 2009 Will. Thereafter, Peter forwarded two undated cheques ($17,500) referencing “insurance” on the memo line to his daughters and advised them that the cheques could be negotiated when the Estate was settled. Although not relevant to the proceedings before me - Peter confirmed that he intended to pay these funds ($17,500 each) to each of his daughters regardless of the outcome of the within application.

Will Dated November 25, 2014

[20] Following payout of the insurance proceeds, Peter located another Will amongst Madge’s papers, being the Will dated November 25, 2014.

[21] Peter testified that he had never seen the document prior to the date that he found it and had no knowledge that the document previously existed. Peter further testified that as the 2014 Will appeared to be a valid Will, he forwarded it to his lawyer.

[22] Similar to Madge’s 2009 Will – this Will dated November 25, 2014 is also a Will Kit Will prepared using a Will Kit blank form document from “SELF-COUNSEL PRESS-CDN-WILL (Page 1 of 4) O5”.

[23] Unlike the 2009 Will, Peter was unaware of the existence of the Will, did not assist in the drafting of the Will, and was not present at execution of the document.

[24] Peter had no evidence to provide with respect to this 2014 Will except:

a. He provided the original of the Will in the form that it was found to his lawyer;

b. He did not alter or switch out any of the pages of the Will; and

c. As the Will was executed shortly after he transferred his interest in the parties’ matrimonial home - he believes that Madge made the Will to ensure that he would receive return of his interest in the home returned as he and Madge had agreed and discussed together.

[25] It appears that the person who filled in the blanks for the 2014 Will is not the same person who completed the 2009 Will and/or the person perhaps had some legal training or assistance as the distribution provisions found at p. 2, para 4, of the 2014 Will are fully and properly completed.

[26] Page 2, para 4 of the 2014 Will provides as follows:

4. Any beneficiary who dies within a period of Five days following my death will be deemed not to have survived me, and their gift will then become part of the residue of my estate.

a. I DISTRIBUTE my assets as follows:

My house located at xxx xxx Drive, xxx, Ontario

To Peter Tijiri

b. I DISTRIBUTE any residue of my estate as follows:

To Peter Tijiri

c. Should Peter Tijiri die before or at the same time as me, I DISTRIBUTE my house and estate to my two children, S.C.L.-T. and N.S.L.-T.

[27] As is apparent on a plain reading of the Will, Madge’s house and residue is left to Peter, with a gift over to Peter and Madge’s children, if Peter had predeceased.

[28] Given the length of Peter and Madge’s relationship, the fact that they were married and not separated at the date of the 2014 Will and at the date of Madge’s death, the fact that the daughters are equally the children of both parties, and the fact that Peter had 5 days previous transferred his interest in their shared matrimonial home - I see nothing suspicious or extraordinary with the manner the estate was distributed by this Will.

[29] In fact, the distribution provided for in the 2014 Will (all to spouse with a gift over to children in the event spouse predeceases) is the ordinary and common form of disposition between spouses who share children.

Application for Appointment as Estate Trustee

[30] After Peter had forwarded the original of the 2014 Will to his lawyer, an application for appointment as Estate Trustee for the 2014 Will was prepared for submission to the Court.

[31] On November 23, 2018, Peter swore an application for certificate of appointment as Estate Trustee with a Will for the Will dated November 25, 2014.

[32] On November 26, 2018, Peter’s former lawyers, Mathews Professional Corporation, filed the application for appointment together with various necessary documents including an affidavit as to the deceased’s signature, but without an affidavit of execution.

[33] On January 31, 2019, the application came before me for review. By Endorsement of that same date I held that I was not satisfied with the Will as their does not appear to be any evidence that the document was executed as per the formal requirements. I required that the Application be served upon the children as next of kin and the matter was to return to me following service with an affidavit of execution.

Motion for Directions

[34] On May 16, 2019, Peter filed a Notice of Motion for Directions that sought to prove the Will in solemn form. The reason noted for commencing the Motion was that the witnesses to the Will refused to swear an affidavit of execution.

[35] The Motion for Directions came before me on May 23, 2019 in chambers. By Endorsement of that same date I noted that I remained concerned that the “Will Kit Will” was not properly executed and may not qualify as a formal will. In the circumstances I required that the Will be proven in solemn form before the court and that the witnesses to the Will may be summoned to provide evidence regarding execution.

Application to Prove the Will in Solemn Form

[36] The matter returned before me during the trial sittings on November 29, 2019.

[37] The application was commenced by Peter who filed an application record, exhibit book and book of authorities. Peter’s daughters filed a Notice of Appearance and were represented by counsel but did not file any material beyond a copy of the undated $17,500 cheques delivered to them by their father.

[38] The witnesses to the 2014 Will, being Michelle G.-R. (“Michelle) and Karen F. (“Karen”),[^2] attended in response to the subpoena served upon them.

Testimony of Michelle G.-R.

[39] Michelle is the sister of the deceased and the first noted witness on the 2014 Will. Michelle had previously refused to sign an affidavit of execution and appeared at the hearing in response to the summons to witness.

[40] Michelle was extremely upset that she had been subpoenaed and required to attend the hearing. Michelle testified that she wasn’t happy at “being thrown in it”. She advised that while she was at the hearing it was not “voluntary”.

[41] Michelle acknowledged her signature on the Will and acknowledged that the address printed on the Will was her correct address. Michelle further confirmed that her occupation noted on the Will as being the “Director of XXXXX, XXXX College”, was also correct.

[42] Michelle denied having any recollection of witnessing her sister’s signature on this Will and denied having any recollection of attending together with Karen and her sister Madge on any occasion.

[43] Michelle was specifically directed to Madge’s signature as it appears on the Will. Michelle testified that she could not identify her sister’s signature from this document.

[44] However, Michelle testified that the signature contained at Tab 1 of Exhibit 2, being the 2009 Will, appears to be her sister’s signature – but she couldn’t say 100%.

[45] Prior to her attendance at court Michelle advised that she had discussions with several individuals about the Will including Peter and Karen.

[46] Michelle testified that she had a discussion with Peter – wherein she told him that she wanted Madge’s daughters to inherit under her sister’s Will as her sister had intended.

[47] Michelle also testified that she called Karen to discuss the “Will that was going around” that was signed. Michelle testified that her discussion with Karen also included a reference to the 2009 Will that was used for payout of the insurance proceeds that provided for Madge’s daughters to inherit.

Testimony of Karen F.

[48] Karen testified that she had been an insurance broker since 1996. Karen advised that she had known Madge since 1999 and considered herself a close friend. She advised that she was also a friend of Peter.

[49] Karen testified that she recalls being asked to witness the Will “a long time ago” but does not remember seeing the Will executed and has no recollection of signing the Will.

[50] Karen did confirm that it was her signature beside her name on the signature page of the Will. Karen also confirmed that the address noted on the Will as being her address is correct and that the printing on the Will – being the insertion of her address as XXX XXX found underneath her signature was her printing.

[51] Karen confirmed that she knows the other witness, Michelle, Madge’s sister. However, Karen stated that she had only “seen” Michelle in 2016 and prior to that date maybe in 2001 or 2002 for summer camp and then some time later maybe in 2015 or 2016. Karen testified that she doesn’t recall ever being in a room with Madge and Michelle and has no recollection whatsoever about witnessing Madge’s signature.

[52] Without referencing a specific document or presenting any calendar to the court, Karen noted that on the date the 2014 Will was executed that she had an appointment with “someone else”. Her inference clearly was that she could not therefore have met with Madge and Michelle to execute the Will as there was no reference to the event on her calendar. Karen repeated several times that she hadn’t seen Michelle since Madge’s funeral.

[53] Despite having seen Madge’s signature before, Karen was not able to identify the signature on the Will as being Madge’s signature.

Testimony of Peter Tijiri

[54] Peter testified that he met Madge in 1991. Their daughters were born in 1992 and 1999 and they began living together in 2001. Peter and Madge were married in June of 2002 and remained married to Madge’s death.

[55] Although Peter had no previous knowledge about the existence of the 2014 Will – he did provide some evidence as to why he believes that Madge executed the Will.

[56] Peter’s testimony was that in 2005 that he and his spouse purchased a home at XXX Drive in XXX, Ontario. Peter testified that they both contributed to the purchase price and the home was their shared matrimonial home where he continues to reside.

[57] In 2009 Peter advised that he and his spouse Madge purchased Will Kits and prepared their Wills together. Peter couldn’t recall whether he typed out the 2009 Wills or whether they were typed out by Madge. He does recall that their signatures were witnessed by neighbours who attended to witness both his signature and Madge’s signature on the 2009 Wills.

[58] In 2014 Peter and Madge re-mortgaged their home. Peter attended before a mortgage broker in Pickering who asked him about his credit rating. Peter testified that his credit rating was “blotchy” and was told that he needed to come off the title for the re-mortgage. Peter testified that he agreed to be removed from title and understood that he would be returned to title shortly after the transaction was finalized.

[59] Peter filed several exhibits to evidence the transfer of his interest in the home to Madge’s sole name including an acknowledgment and direction dated November 19, 2014, a copy of the transfer/deed registered November 20, 2014, and a copy of the new mortgage registered on November 20, 2014.

[60] Peter testified that he was unaware that Madge had executed a new Will on November 25, 2014, only 5 days following the transfer. Although Madge had told him “not to worry” about the transfer of the house – she never told him that she had executed a Will leaving him the house.

[61] Peter’s evidence was quite clear that to his knowledge prior to discovering the 2014 Will – he believed that Madge’s last Will was the Will they both made in April of 2009. I accept Peter’s evidence in this regard.

[62] In cross-examination Peter was challenged with the authenticity of the November 25, 2014 Will. More particularly Peter was asked whether he “removed and replaced” the original pages of the Will with ones that are more favourable to him. Peter absolutely denied that he switched out the pages and testified that the Will – as presented to the Court – is the same Will as found by him in Madge’s papers.

[63] During re-examination Peter was asked about the various type and font used on the pages of the 2014 Will – including both the signature page and the preceding pages. Peter confirmed that his name appears on all pages in the same font in the same bold print. Peter also confirmed that he did not prepare the 2014 Will, had no prior knowledge of the Will and did not alter the Will in any manner.

THE LAW AND ANALYSIS

[64] The formalities for executing a Will are governed by the provisions of the Succession Law Reform Act, R.S.O. 1990, c. S.26, section 4, which reads as follows:

4 (1) Subject to sections 5 and 6 (which do not apply to this case), a will is not valid unless,

a. At its end it 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.

4 (2) Where witnesses are required no form of attestation is necessary.

[65] In order to be valid the Will must:

a. Be signed at its end by the testator;

b. The testator must make or acknowledge their signature in the presence of two or more attesting witnesses present at the same time; and

c. Two or more of the attesting witnesses must subscribe the will in the presence of the testator.

[66] The onus of proving due execution lies with the estate trustee, who is the party propounding the Will. The standard of proof is on the balance of probabilities.

[67] With respect to the presence of the testator’s signature at the end of the Will, while neither witness to the Will could identify the testator’s signature, Madge’s former bank manager, swore an affidavit that was filed with the application for appointment as estate trustee that identified the signature on the Will dated November 25, 2014, as being that of Madge Linton.

[68] Having compared the testator’s signature as it appears on the November 25, 2014 Will, and the various documents filed as Exhibits with the court, including Madge’s signature on her former 2009 Will, I have no difficulty accepting that the signature that appears at the end of the November 25, 2014 Will is that of Madge Linton.

[69] The next question faced by the Estate Trustee is proving the signatures of the two attesting witnesses on the November 24, 2015.

[70] The 2014 Will contains the signature of two witnesses, Michelle and Karen. Both witnesses attended court under summons and both witnesses confirmed that their signature appears on the last page of the document.

[71] The 2014 Will also contains the usual attestation clause that is directly above the witnesses’ signatures. The attestation clause and witnesses’ entries read as follows:

This page was signed and the preceding pages were initialled by the Testator Peter Tijiri and published and declared as and for Madge Olive Linton last Will and Testament in the presence of us both present together at the same time who at Madge Linton’s request and in Madge Linton’s presence and in the presence of each other have hereunto subscribed our names as witnesses:

Name Michelle G.-R._signature of M. G.-R.

Address xxx xxx Crescent, xxx, Ontario

Occupation Director of xxxxx, xxxx College

Name Karen F._signature of Karen F.

Address ­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­handwritten address, xxx, Ontario

Occupation xxx xxxxxx Insurance Representative

[72] The fact that neither witness could recall executing the document is not necessarily fatal to the issue of due execution.

[73] Where a will appears to be properly executed on its face, the presumption of due execution arises unless there is evidence to the contrary.

[74] The question arises as to whether there was “evidence to the contrary”.

[75] Both witnesses to the Will mentioned somewhat casually in passing that Madge intended to benefit her children. The witnesses both referenced the 2009 Will as evidencing this point. Karen stated that the 2009 Will was used to obtain payout of the insurance proceeds benefitted the children and a similar statement was made by Michelle. Peter explained that he forwarded this Will because he was unaware that the 2014 Will existed and did not find the 2014 Will until several weeks after he forwarded the 2009 Will to Karen.

[76] It was apparent that both witnesses were concerned with the content of the 2014 Will as it left the entire estate to Peter. The witnesses did not believe that this was Madge’s intention.

[77] Both witnesses were adamant in their views that they knew Madge’s intentions yet neither could recall any conversations with Madge concerning the execution of her Will. While I do not doubt their loyalty to Madge and her daughters - I have great difficulty with this aspect of their testimony.

[78] Karen testified that she could recall being asked to witness a Will for Madge “a long time ago” but doesn’t remember signing the Will. She does confirm that it is her signature on the Will, that is it her printing that completes her address on the Will, and it is her correct address and correct occupation that is contained on the Will.

[79] Michelle testified that it was her signature on the Will, and it is her correct address and correct occupation that is contained on the Will. However, she “has no recollection whatsoever of signing this document – she doesn’t even know where she was”.

[80] Michelle testified that she would not sign a document that was not true - but she would sign a document that she hasn’t read.

[81] As noted above, it is not necessary for the witnesses to the Will to have read the document – it is only necessary for the witnesses to the Will to have witnessed the testator’s signature or to have had the testator acknowledge her signature on the document to the two witnesses both present at the same time.

[82] As for both witnesses claims that they were not together at any time and could not have signed this document in the form required – I do not accept this evidence. I find that both witnesses to the signature were evasive in their evidence surrounding the request to attend and their actual witnessing of Madge’s signature.

[83] Both witnesses testified that they could not recall being present at the signing of the Will. Both gave reasons for their failure to remember, however, none of these reasons prohibits a finding that the witnesses were together at the same time when they witnessed the testator’s signature. A complete absence of recollection does not establish an alternative theory of events.

[84] Although it was not argued before me – there was great reference to the 2009 Will – which was also a Will Kit Will – and the effect of this 2009 Will on the distribution of Madge’s assets. While the Will does contain an attestation clause - given the errors in the body of the Will and the fact that neither the drafter nor the testator seemed to understand essential terms required for distribution of the estate - I would not attach any presumption of due execution to this Will in these circumstances.

[85] However, these considerations do not apply to the 2014 Will. The 2014 Will – although also a Will Kit Will – appears to have been drafted by someone with legal knowledge or by someone with legal assistance. The Will on its’ face is a valid document. The dispositive clauses found at p. 2, para 4 of the Will are properly constructed and although there is an error at page 3 – (referencing the testator as Peter Tijiri) this error is of no consequence. Further, a review of the content of the Will in light of the surrounding circumstances and relationship between the parties (Madge, Peter, and their daughters) does not raise any suspicion that the Will was the product of undue influence, fraud, or forgery.

[86] With respect to the issue of fraud and/or forgery – although not pleaded or directly raised before me - I find that the document as presented to the Court is the original form of the document and that no pages have been substituted or amended from the original form of the document based on the following:

a. the document was found in Madge’s papers and presumably was under her control prior to her death;

b. the document consists of 2 pages double-sided with the first page being pages 1 -2 and the second page being pages 3 – 4;

c. at the bottom of each page there is a notation “SELF-COUNSEL PRESS – CDN-WILL (Page x of 4) 05;

d. the first page of the document (being page 1 – 2) contains the same notation at the bottom of the page as the second page (being page 3 – 4) meaning the pages are noted as being consecutive 1,2,3,4 and there is no discrepancy on the pre-printed form between the pages;

e. the style of font used throughout the document for the inserted provisions on the blank portions of the pre-printed form is the same style throughout all pages;

f. the insertion of the name Peter Tijiri appears in bold throughout all pages of the document; and

g. the age, colour, and appearance of the paper on which the first page (1 – 2) and the second (3 – 4) are printed is similar if not identical.

[87] As for the evidence provided by the two witnesses to the Will, while I doubt the attesting witnesses evidence that they do not remember witnessing the 2014 Will – their memory in this regard is of no real consequence. Just because the witnesses did not testify that they remember witnessing the testator’s signature does not mean that due execution cannot be proven.

[88] The presumption of due execution was designed for cases such as the present. As aptly noted in 1963 by the Court of Appeal, “…The authorities that support the application of the presumption favouring due execution of a testamentary instrument lay down a very sound and salutary principle, since a contrary rule would make the rights of devisees and legatees depend not only upon the honesty, but also upon the frail and slippery memory of witnesses. No man could be sure of dying testate, since the dishonesty or forgetfulness of a witness could frustrate all his precautions to comply with the requirements of the law”: Re Laxer, 1963 CanLII 153 (ONCA) at p. 11.

[89] In the present case, after considering all of the evidence, I find that the presumption of due execution applies to the November 25, 2014 Will of Madge Olive Linton.

DETERMINATION AND COSTS

[90] For the foregoing reasons the Last Will and Testament of Madge Linton dated November 25, 2014, is hereby proven in solemn form.

[91] As for the costs of the proceeding, the issue raised in the within application falls squarely with the public policy considerations as described in McDougald Estate v. Gooderham, 2005 CanLII 21091 (ON CA), 17 E.T.R. (3d) 36 (Ont. C.A.). It is my view that the testator is at “fault” in causing or contributing to the proceedings and the application was reasonably necessary in the circumstances.

[92] For these reasons the costs of the Estate Trustee Peter Tijiri, and the costs of his daughters S.C.L.-T. and N.S.L.-T. shall be paid from the assets of the Estate on a complete indemnity basis, said costs as agreed by the Estate Trustee and failing agreement after assessment thereof.

Justice Susan J. Woodley

December 6, 2019

COURT FILE NO.: 1401/19

DATE: 20191206

ONTARIO SUPERIOR COURT OF JUSTICE

The Estate of Madge Olive Linton

REASONS FOR JUDGMENT

Woodley, J.

Released: December 6, 2019

[^1]: The daughters’ names have been initialized to protect their privacy.

[^2]: The witnesses’ names have been initialized to protect their privacy.