COURT FILE NO.: CV-15-5378-ES
DATE: 2020 01 03
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
SANDRA KROLEWSKI and EDWARD MEDEIROS
Applicants
Antal Bakaity, for the Applicants
- and -
MARIA NATALIA MONIZ personally and in her capacity as ESTATE TRUSTEE FOR THE ESTATE OF THE LATE EDUARDO MEDEIROS
Respondents
Peter W. Carey and Dylan O’Leary, for the Respondents
HEARD: July 15, 2019
REASONS FOR DECISION
L. Shaw J.
Overview
[1] Eduardo Medeiros was diagnosed with cancer on March 13, 2015 and died on June 30, 2015. The applicants, Sandra Krolewski and Eduardo Medeiros, are his adult children from his first marriage. The respondent, Maria Natalia Moniz, was Mr. Medeiros’ common-law spouse for eighteen years at the time of his death. They lived together since 1997.
[2] Mr. Medeiros executed a Will on June 8, 2015, prior to his death (the “2015 Will”). In that Will, Ms. Moniz was named Executor. In the 2015 Will, Mr. Medeiros bequeathed any stocks or RRSPs owned by him to the applicants, to be divided equally. He also bequeathed his vehicle to his son, the applicant, Edward Medeiros. The residue of his estate was left to Ms. Moniz.
[3] At the time of his death, Mr. Medeiros’ estate consisted of his one-half interest in the house he lived in and owned with Ms. Moniz throughout their relationship, his car, a small balance in his bank account, and his RRSPs. Mr. Medeiros also had some debts. Accordingly, the bulk of his estate was his RRSPs and his one-half interest in the home.
[4] The home was located at 3073 Cantelon Crescent in Mississauga, Ontario. It was owned as tenants in common with Ms. Moniz, but was transferred to joint ownership at the time Mr. Medeiros executed his 2015 Will. Both the Will and the transfer documents for the home were prepared by Mr. Medeiros’ lawyer of many years, Mr. Martin Goose. Mr. Goose did not register the transfer of ownership of the home from tenants in common to joint tenants until after Mr. Medeiros’ death.
[5] Mr. Medeiros had a prior Will that he executed on November 15, 2004 (the “2004 Will”), also prepared by Mr. Goose. In that Will, he named his daughter, one of the applicants, and Ms. Moniz as joint Executrixes. He bequeathed 49% of his one-half interest in the home to the applicants, and 1% to Ms. Moniz. He bequeathed his RRSPs to the applicants and his car to his son and the residue of his estate to the applicants.
[6] The applicants commenced this application on December 1, 2015 seeking directions regarding the validity of Mr. Medeiros’ 2015 Will. They allege it is not valid on the following basis:
Mr. Medeiros’ lack of knowledge and approval as to its contents;
Mr. Medeiros’ lack of testamentary capacity; and
The presence of suspicious circumstances and the presence of undue influence by Ms. Moniz.
[7] The only evidence regarding the value of the home was that it was listed for sale for $569,000 after Mr. Medeiros died in June 2015. The RRSPs had a value of approximately $129,822. The applicants were the named beneficiaries of the RRSPs and they received those funds after their father’s death. Mr. Medeiros’ bank account had a balance of approximately $1,900. Ms. Moniz’s evidence was that after Mr. Medeiros’ death, she paid his credit card debt of approximately $7,125 and the funeral expenses of approximately $23,000. Ms. Moniz used her line of credit to make these payments.
[8] Ms. Moniz is receiving the survivorship benefit from Mr. Medeiros’ employment pension with Bell in the amount of $1,127 per month. She also receives $586 per month from his Canada Pension Plan.
[9] The only difference between the 2004 Will and the 2015 Will is who receives Mr. Medeiros’ one-half interest in the home. Assuming a value of $569,000 based on the listing price, his one-half interest was $284,500 in 2015. Under the 2004 Will, and using the 2015 value of the home, which is likely generous given the general increase in property values, Ms. Moniz would have received $2,845 from Mr. Medeiros’ estate which was the value of 1% of his one-half interest in the home. Under the 2004 Will, the applicants would have received $281,655 from their father’s one-half interest in the house, plus the value of his RRSPs. Based on the 2015 Will, the applicants, while still receiving their father’s RRSPs, are not receiving his 49% interest in the home or $281,655.
[10] As Mr. Medeiros and Ms. Moniz each had adult children from their prior marriages, the applicants’ position is that their father always intended that his estate would flow to his children upon his death and that Ms. Moniz intended to do the same. The applicants assert that the 2004 Will is consistent with this intention and that his 2015 Will is a significant change from that intention.
[11] The respondent’s position is that Mr. Medeiros wanted Ms. Moniz to be comfortable after his death and wanted to make a new Will so that she would receive his interest in the house. The 2015 Will is consistent with this intention.
[12] For the reasons that follow, I find that the applicants have failed to discharge their onus of establishing, on a balance of probabilities, that there were suspicious circumstances regarding the 2015 Will. The presumption that Mr. Medeiros had testamentary capacity when he executed his Will on June 8, 2015 has not been rebutted. The application is therefore dismissed.
Should the Matter be Converted to a Trial?
[13] As a preliminary issue, the applicants’ position is that this matter ought to be converted to a trial as viva voce evidence is required. The applicants assert that there are credibility issues that can only be resolved by way of a trial. The applicants’ position is that such findings of credibility are central and cannot be resolved based on affidavit evidence. They also assert that a more complete evidentiary record is required.
[14] The respondent’s position is that the matter can proceed by way of an application. The issues can be resolved based on the affidavits filed with the court and the transcripts from the various cross-examinations that were conducted.
[15] In Rubner v. Bistricer, 2018 ONSC 1934, Myers J. addressed whether the fact-finding powers as described in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 also applied to applications commenced under r. 14 of the Rules of Civil Procedure, R.R.O. 1990, Reg 194: paras. 104-108. Myers J. found that where the materials permit the court to resolve factual disputes in issue under the principles from Hryniak, the court should dispose of the issues in a summary fashion without a trial of the issues. The goal of all civil litigation is to enhance access to justice by decreasing costs, delays and distress of the trial process. Myers J. found that applying r. 20 summary judgment powers to applications in appropriate cases seems like a small and obvious step: Rubner, at para. 107.
[16] I find that this is an appropriate case to resolve these proceedings in a summary fashion. It is also in the interests of justice to do so. All of the parties’ evidence is before the court. They have been filing affidavits since 2015. Cross-examinations were conducted and I have read the transcripts. The applicants have also filed an expert opinion from an experienced capacity assessor. That expert was cross-examined, and I have also reviewed that transcript. Mr. Medeiros’ medical files were also produced and reviewed by the capacity expert.
[17] I am therefore satisfied that the evidentiary record before me is sufficient to make findings of fact and apply the relevant law. Furthermore, most of the material facts are not in dispute, and any credibility issues are not central to the issues to be resolved.
[18] It has now been four years since this application was commenced. It is very unfortunate for all parties involved that this matter did not proceed to a final hearing in a timely fashion. Access to justice means timely access to justice. In estate litigation involving family members, where emotions are often heightened, it is for the benefit of all involved that the dispute be resolved expeditiously. This has not occurred in this matter. Requesting that an application be converted to an action on the day of the hearing after numerous affidavits have been filed and cross-examinations have been conducted only serves to further delay resolution of the proceeding. The applicants ought to have sought this relief much earlier in the litigation rather than wait until the day the application was heard. (While I note that a motion was scheduled on July 13, 2018 for this particular issue, it was not heard.)
[19] Based on the evidentiary record, and given the number of years that this matter has been outstanding, the most proportionate and fair process is to resolve this application in a summary fashion. It is not necessary to convert the application to an action to hear viva voce evidence. If this matter is to proceed to trial, the next available dates for a trial of four days or longer in this region is January 2021. By that time, the litigation will be outstanding for six years, which is not acceptable.
Overview of the Litigation
[20] On December 2, 2015, without notice to Ms. Moniz, the court granted a certificate of pending litigation against the property that had been jointly owned by Ms. Moniz and Mr. Medeiros. As Ms. Moniz was selling that property, on consent, she agreed that the certificate of pending litigation could be registered against title to the property that she then purchased. The court made that consent order on January 5, 2016. The certificate of pending litigation remains on title to her property.
[21] Throughout 2016 and 2017, efforts were made to obtain medical records regarding Mr. Medeiros’ cancer diagnosis and treatment. The applicants also obtained a capacity assessment report dated November 15, 2017 from Dr. Lynn Lightfoot, which they provided to the respondent in April 2018.
[22] A number of affidavits were filed between 2015 and 2019. The matter was before the court on various dates and was adjourned. There was a motion returnable on July 13, 2018, wherein the applicants requested that the application be heard as an action. The motion was never argued and was simply adjourned. It is unclear why the issue was never disposed of prior to the hearing of this application.
[23] In December 2018, the respondent brought a motion seeking to discharge the certificate of pending litigation registered on title to Ms. Moniz's property and to dismiss the application. That motion was not heard and appears to also have been adjourned.
[24] Between January and March 2019, cross-examinations were conducted of Dr. Lightfoot and of the deponents who swore affidavits. On March 28, 2019, Bloom J. ordered that the application and the motion to remove the certificate of pending litigation be adjourned to a long motion set for December 13, 2019, peremptory on all parties. The matter was heard on July 15, 2019.
[25] No explanation was provided with respect to why it took almost four years to hear this application. Both parties suggest that the other has been seeking to delay the final adjudication of this matter. Regardless of the reasons for the delay, all parties would have been better-served had this matter proceeded to a hearing on its merits in a timelier fashion. It is unfortunate that when parties engage in litigation, it can take years before they see any sort of resolution or conclusion. A timely end to the litigation, regardless of the outcome, is best for all involved.
Review of the Evidence
[26] Although multiple affidavits were exchanged, there are a number of material facts that are not in dispute. Much of the contents of the affidavits dealt with matters that were unnecessary and irrelevant to the issues to be resolved in the application and were likely the result of the unfortunate heightened emotions and level of conflict between the parties.
[27] There is conflicting evidence with respect to the nature of the relationship between the applicants and their father prior to his cancer diagnosis. The applicants describe a very close relationship with their father, whereas Ms. Moniz describes a more distant relationship. I do not, however, have to resolve that conflicting evidence to resolve the issues in dispute. What is not in dispute is that the applicants were seeing their father daily after he was diagnosed with cancer, and were by his side when he passed away. There is no doubt that they loved their father and his illness and death would have been very difficult for them.
i. The June 8, 2015 Will
[28] Ms. Moniz’s evidence was that after Mr. Medeiros was diagnosed with cancer in March 2015, he began to worry about whether his affairs were in order. Although he had a Will, he told Ms. Moniz that he wanted to make sure she was comfortable after his death. Ms. Moniz’s evidence was that even before Mr. Medeiros became sick, they discussed their finances including what would happen if one of them died. Her evidence was that Mr. Medeiros stated that his pension would not be enough for her to live on and suggested that whoever survived the other should own the house outright.
[29] Her evidence was that Mr. Medeiros intended to make a new Will and transfer ownership in the house from tenancy in common to joint tenancy so it would pass to her upon his death. Mr. Goose, who had been their lawyer since 2000, was therefore contacted.
[30] Ms. Krolewski’s evidence is that after her father was diagnosed, he explained to her that everything would be the same as in his previous Will. He explained that he made arrangements for her and her brother to ensure that what they would receive was fair. She was not aware that he had changed his Will until after his death.
[31] On June 8, 2015, three weeks before Mr. Medeiros passed away, he and Ms. Moniz attended at the law office of Martin Goose for the purpose of revising their wills. Mr. Goose had known Mr. Medeiros for eighteen years and had been their lawyer for fifteen years.
[32] Mr. Goose swore an affidavit on December 10, 2015 and he was cross-examined on that affidavit on March 13, 2018.
[33] Mr. Goose is a very experienced lawyer. In 2015, he had been practicing law for 43 years. Mr. Goose’s evidence was that he met with Mr. Medeiros on June 8, 2015. He denied any prior contact with him regarding the Will. According to Mr. Goose, he was told that Mr. Medeiros had terminal cancer.
[34] Shortly after the meeting began, Mr. Goose asked Ms. Moniz to leave his office so that he could meet with Mr. Medeiros alone. His evidence was that the purpose of meeting with Mr. Medeiros alone was to assess his capacity to make decisions and therefore give instructions to draft his Will. Mr. Goose asked Mr. Medeiros questions to assess if he had capacity to provide those instructions. His evidence was that Mr. Medeiros appeared to have no difficulty with recall, memory, communication and interaction, and that he did not appear disorientated.
[35] On cross-examination, Mr. Goose acknowledged that he was not a capacity assessor or a medical doctor. He testified that he had 43 years of experience as a lawyer and that he knew the questions to ask to determine if Mr. Medeiros was competent. Mr. Goose could not recall taking any notes of his meeting with Mr. Medeiros and no notes have been produced.
[36] Mr. Goose’s evidence was that he asked Mr. Medeiros if he was on any medication that would affect his judgment, and he said no. He did not ask him specifically what medications he was using.
[37] Mr. Goose recalled that during his meeting, Mr. Medeiros stood up and walked out of his office a few times and came back. He could not observe what Mr. Medeiros was doing when he was outside his office. He confirmed that Ms. Moniz was waiting in the reception area while he met with Mr. Medeiros. He agreed that Mr. Medeiros and Ms. Moniz could have had a conversation when Mr. Medeiros left his office.
[38] His evidence was that he asked Mr. Medeiros why he wanted to sign a new Will and leave his interest in the house to Ms. Moniz. Mr. Medeiros told him the reason was that his children no longer visited him and because it was Ms. Moniz who was taking care of him.
[39] On cross-examination, Mr. Goose stated that he was unaware that the applicants had been visiting their father daily since his diagnosis and that his son Edward was helping around the house.
[40] It was Mr. Goose’s evidence that when he was meeting with Mr. Medeiros, he suggested to him that in order to avoid probate fees, Mr. Medeiros should transfer ownership in the house he lived in with Ms. Moniz from tenants in common to joint tenants. Mr. Medeiros agreed with his suggestion.
[41] Mr. Goose concluded that Mr. Medeiros had capacity to make decisions and to provide instructions regarding his Will, and was doing so freely and without undue influence.
[42] Although Mr. Medeiros signed the 2015 Will and the transfer of ownership to the home on June 8, 2015, Mr. Goose did not register the deed transferring title until July 7, 2015, after Mr. Medeiros’ death.
[43] Ms. Moniz also signed a Will on June 8, 2015. In that Will, she named Mr. Medeiros as the Executor. She bequeathed her vehicles to one of her sons, 51% of the remainder of her estate to Mr. Medeiros, and 49% of the remainder of her estate to her two children. In the event Mr. Medeiros was to predecease her, her vehicles were to go to her son, and the remainder of her estate was to be divided equally amongst her two children and Mr. Medeiros’ two children, the applicants.
ii. The November 15, 2004 Will
[44] Mr. Goose prepared the 2004 Will at the request of Mr. Medeiros. According to that Will, Ms. Moniz and Ms. Presciutti (now Ms. Krolewski) were named Joint Executors. In that Will, Mr. Medeiros bequeathed 1% of his one-half interest in the house to Ms. Moniz, and the residue of his estate was left to the applicants.
[45] Ms. Moniz swore a number of affidavits. She was cross-examined on March 13, 2019. During her cross-examination, she agreed that in the 2004 Will, Mr. Medeiros left his assets to his children. She agreed that she had a Will prepared at the same time. Although she could not recall the contents, she agreed that it was also her intention to leave her assets to her two adult children at that time.
iii. Mr. Medeiros’ Relationship with His Children
[46] According to Ms. Krolewski, she and her brother were constantly in Mr. Medeiros’ life as he was very active in the lives of his granddaughters. Her evidence was that they would get together for dinner for every birthday and for Christmas. Mr. Medeiros picked up the applicants’ children from school, especially Eduardo’s children, on almost a daily basis. Her evidence was that they did not interact with Ms. Moniz for a considerable number of years as their father had left their mother to be with Ms. Moniz. Their relationship was strained due to their loyalty to their mother. Ms. Krolewski described her family as “very close knit”.
[47] Ms. Moniz’s description of the applicants’ relationship with their father conflicts the applicants’ evidence. Her evidence was that she and Mr. Medeiros rarely saw the applicants as they were not overly involved in their father’s life until after his cancer diagnosis. Her evidence is that Mr. Medeiros would see his children a couple of times a year - on special occasions such as Christmas and New Years. I note that there is some consistency with Ms. Krolewski’s evidence as she also mentioned dinners on special occasions. Ms. Moniz agreed that Mr. Medeiros picked up his grandchildren at school and took them home each day.
[48] There is no dispute that after Mr. Medeiros’ diagnosis, Ms. Moniz was caring for him in their home on a daily basis. Approximately two months before his death, Ms. Moniz stopped working so she could care for him full-time. Mr. Medeiros remained in his home until June 26, 2015 when he was admitted to palliative care.
[49] Accordingly, while there is a dispute regarding the nature of the relationship between Mr. Medeiros and the applicants before his diagnosis, there is no dispute that after his cancer diagnosis, the applicants were visiting him on a daily basis. Despite Mr. Goose’s evidence that Mr. Medeiros told him that his children no longer saw him, they were in fact seeing him daily at that time. There is also no dispute that Mr. Medeiros’ son was doing work around his father’s home. It is also not disputed that Mr. Medeiros told one of his doctors, Dr. Sharma, after his diagnosis, that he wanted his children and his spouse to be his attorneys for personal care and to make decisions jointly. (His existing Power of Attorney for Personal Care from 2003 named Ms. Moniz and his daughter jointly as his attorneys for personal care.)
iv. Capacity Assessment
[50] Dr. Lynn Lightfoot was retained by the applicants to prepare a letter of opinion to address whether Mr. Medeiros had sufficient capacity to make changes to his Will shortly before his death. To prepare that report, Dr. Lightfoot reviewed Mr. Medeiros’ medical records following his cancer diagnosis. Those medical records were included in the application record.
[51] Dr. Lightfoot is a qualified psychologist and qualified capacity assessor under the Substitute Decisions Act, 1992, S.O. 1992, c. 30. Prior to preparing her report, she did not personally assess Mr. Medeiros or speak with his family members or the parties to this litigation or interview any of the medical staff who provided services to Mr. Medeiros.
[52] As part of her review of the medical records, Dr. Lightfoot reviewed a psychosocial report dated April 21, 2015. In that report, it stated that Mr. Medeiros said he had a Will and a Power of Attorney, and that he would like Sandra, Eddie and Natalie to be his Power of Attorney, but he did not believe that his paperwork stated that.
[53] Dr. Lightfoot also reviewed a consultation note prepared by Dr. Sharma dated April 21, 2015. Dr. Sharma was part of the palliative care team for Mr. Medeiros. In that report, it stated that Mr. Medeiros had two adult children from his previous marriage with whom he was very close.
[54] In that same report, Dr. Sharma indicated that Mr. Medeiros told him that he had a Will in place “as he wants to make sure his common-law wife Natalie has rights after his passing”. Mr. Medeiros also advised that he “has ensured that his property will be divided in such a way as to ensure that [Natalie] will be protected”.
[55] Dr. Sharma also reported that Mr. Medeiros stated that he wanted his Power of Attorney for personal care to be shared between his common-law wife Natalie and his two children. He stated that he wanted all three to make decisions together, “but he is not sure that is reflected in his actual documentation, which he will go home to check”.
[56] Dr. Sharma noted that there had been progressive increases of opioid medication in order to control Mr. Medeiros’ pain since his diagnosis. Mr. Medeiros was taking Hydromorph Contin and Dr. Sharma increased the dosage. He was also prescribed Hydromorphone for break-through pain.
[57] Dr. Sharma opined that Mr. Medeiros was suffering some side effects of the opioid medication as he was having some drowsiness. Mr. Medeiros denied visual or auditory hallucinations or overt confusion or disorientation. Mr. Medeiros’ sister, who was at the meeting, stated that he was somewhat forgetful at times but that it was not significant.
[58] According to Dr. Lightfoot’s report, she was told that Mr. Medeiros had changed his Will and that in the final version, he did not include either of his children as beneficiaries, but rather his entire estate was left to his common-law spouse, Ms. Moniz. Dr. Lightfoot was asked whether Mr. Medeiros had the capacity to make this change in his Will given the medication he was taking. Dr. Lightfoot concluded as follows:
In summary, Mr. Medeiros was in a great deal of pain related to his diagnosis of metastatic lung cancer at the time that he signed a new Will on June 8, 2015. His dose of opiate pain-relieving medication had been titrated up as he was experiencing break through pain and was very uncomfortable. Mr. Medeiros medication levels were so high that his common-law partner Natalie described him as very sleepy much of the time. She requested that he be prescribed Ritalin, a stimulant medication in order to make him more alert. This prescription was requested just six days before the new Will was executed.
Prior to this, Mr. Medeiros had been aware that he had a Will and he shared this information with this treating doctor, Dr. Sharma on April 21, 2015. He explicitly stated that he had wanted to ensure that his common-law wife was taken care of in his Will. Dr. Sharma’s notes indicated that “He has ensured that his property will be divided in such a way as to ensure that she will be protected”. Mr. Medeiros had consistently advised his two children that they would be included in his Will and he stated that he wanted them as well as his common-law partner to share in decision making in regard to his heath care. At no time did Mr. Medeiros tell his son and daughter that he intended to change his Will in the period of time between his diagnosis in April and his death in June 2015.
Mr. Medeiros was in a very vulnerable physical and mental condition at the time the new Will was executed. His pain was proving very difficult to manage and his opioid medication had to be increased to a dose that resulted in him sleeping much of the day. In addition, he had extremely high levels of anxiety related to his cancer diagnosis and the medical noted indicated that he did not want to be left alone at any time. This vulnerability would have likely rendered him susceptible to undue influence at the time that he apparently changed his Will.
There is insufficient information recorded in the medical records to form the firm conclusion that Mr. Medeiros lacked testamentary capacity around the time that a new Will was signed. However, there are a number of relevant factors which suggest that the extremely high level of pain that he was experiencing combined with his high level of anxiety was his main focus of his thoughts in the last few weeks of his life. In addition, the high level of opioid medication rendered him quite somnolent much of the time such that his common law partner requested that he be prescribed Ritalin in order to increase his level of alertness. Furthermore, Mr. Medeiros remained in close contact with his son and daughter over the last few months of his life and he never once signaled to him that he was intending to change his Will to entirely exclude them. For all of these reasons it seems unlikely that Mr. Medeiros was fully aware that the document that he signed on June 8, 2015 was a new Will nor was it likely that he understood the implications of signing the document such that his son and daughter were disinherited.
Please don’t hesitate to contact me if you require any additional clarification in regard to this letter of opinion.
[59] On January 4, 2019, Dr. Lightfoot was cross-examined on her report. During her cross-examination, she confirmed that she had not reviewed the 2015 Will and she was unaware of the assets that made up Mr. Medeiros’ estate. The information she received regarding the beneficiaries of his estate came from the retainer letter from the applicants’ lawyer and she relied on the information he provided.
[60] When the details of the 2015 Will were reviewed with Dr. Lightfoot, she agreed with the suggestion that the applicants were not excluded from their father’s estate, as she had been informed. She also acknowledged that she was unaware that Mr. Medeiros only owned one-half of his home. She agreed that her report was prepared with incomplete information. It was also her evidence that based on the information regarding what the applicants received, that Mr. Medeiros “gave them a healthy chunk of his assets.”
[61] Dr. Lightfoot acknowledged that before she prepared her opinion, she had not read Mr. Goose’s affidavit regarding his meeting with Mr. Medeiros on June 8, 2015 to take his instructions and prepare a new Will. She agreed with the suggestion that lawyers have an obligation to ensure that persons who instruct them have the capacity to give those instructions. She also agreed with the suggestion that it is desirable or more desirable when conducting a capacity assessment to have an interview with the individual in question. She also agreed that Mr. Goose had an advantage by being able to examine Mr. Medeiros personally.
v. Mr. Medeiros’ Medical Treatment
[62] Ms. Moniz cared for Mr. Medeiros in their home after his diagnosis. He was also under the care of an oncologist and a palliative care physician, and had medical services provided to him in his home. He was moved into palliative care on June 26, 2015, and passed away on June 30, 2015.
[63] It is not disputed that Mr. Medeiros’ health deteriorated rapidly in May and June of 2015. It is also not in dispute that he was prescribed a morphine pump to help control his pain and other pain medication for break-through pain. He was also prescribed Ritalin. While Ms. Moniz believed Ritalin was another type of pain medication, it appears that it was prescribed so that he was less groggy from his pain medication.
[64] Mr. Medeiros’ dosage of pain medication increased after his diagnosis. In a nurse’s note dated May 21, 2015, it states that Ms. Moniz was concerned that Mr. Medeiros was very groggy since the increase in his pain medication. Ms. Moniz asked the nurse if the dosage of Ritalin could be increased. In another nurse’s note dated May 25, 2015, the nurse referenced concerns regarding Mr. Medeiros’ sleepiness. It was discussed that there may be an increase in his dosage of Ritalin.
[65] In a medical note dated May 28, 2015, the nurse reported that Ms. Moniz commented that she was seeing Mr. Medeiros slowly deteriorate and that he was sometimes disoriented.
[66] On June 2, 2015, Mr. Moniz called requesting to restart Ritalin. According to a medical note dated June 4, 2015, Ms. Moniz said the Ritalin helped with Mr. Medeiros’ energy.
Legal Principles
[67] Both parties agree on the legal principles that apply when one party seeks to challenge a Will. Although the propounder of a Will has the legal burden of proving testamentary capacity on a balance of probabilities, there is a rebuttable presumption that the testator knew and approved of the contents of the Will and had the necessary testamentary capacity: Vout v. Hay, 1995 105 (SCC), [1995] 2 S.C.R. 876, at para. 26.
[68] The presumption may be rebutted if those attacking the Will can adduce sufficient evidence to raise an issue of suspicious circumstances. If suspicious circumstances exist, that simply rebuts the presumption of testamentary capacity: Vout, at para. 28.
[69] A good overview of the law is set out in the often-cited decision of Scott v. Cousins, [2001] O.J. No. 19 (S.C.), at para. 39 as follows:
The principles that I believe are established by the decision of the Supreme Court [in Vout]… can be stated as follows:
The person propounding the will has the legal burden of proof with respect to due execution, knowledge and approval and testamentary capacity.
A person opposing probate has the legal burden of proving undue influence.
The standard of proof on each of the above issues is the civil standard of proof on a balance of probabilities.
In attempting to discharge the burden of proof of knowledge and approval and testamentary capacity, the propounder of the will is aided by a rebuttable presumption.
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.
This presumption “simply casts an evidential burden on those attacking the will”.
This evidential burden can be satisfied by introducing evidence of suspicious circumstances – namely, “evidence which, if accepted, would tend to negative knowledge and approval or testamentary capacity. In this event, the legal burden reverts to the propounder.”
The existence of suspicious circumstances does not impose a higher standard of proof on the propounder of the will than the civil standard of proof on a balance of probabilities. However, the extent of the proof required is proportionate to the gravity of the suspicion.
A well-grounded suspicion of undue influence will not, per se, discharge the burden of proving undue influence on those challenging the will:
It has been authoritatively established that suspicious circumstances, even thought they may raise a suspicion concerning the presence of fraud or undue influence, do no more than rebut the presumption to which I have referred. This requires the propounder of the will to prove knowledge an approval and testamentary capacity. The burden of proof with respect to fraud and undue influence remains with those attacking the will.
[70] Suspicious circumstances may be raised by: (1) circumstances surrounding the preparation of the Will; (2) circumstances tending to call into question the capacity of the testator; or (3) circumstances tending to show that the free will of the testator was overborne by acts of coercion or fraud: Vout, at para. 25.
[71] In determining whether there are suspicious circumstances, the court may consider the following factors:
i. The extent of physical and mental impairment of the testator around the time the Will was signed;
ii. Whether the Will in question constitutes a significant change from the former Will;
iii. Whether the Will in question generally seems to make testamentary sense;
iv. The factual circumstances surrounding the execution of the Will; and
v. Whether any beneficiary was instrumental in the preparation of the Will.
(Royal Trust Corporation of Canada v. Saunders, 2006 19424 (Ont. S.C.), at para. 78.)
Analysis
[72] With these legal principles in mind, I now turn to the facts of this case.
[73] It is presumed that Mr. Medeiros knew and approved of the contents of the 2015 Will, and had the requisite testamentary capacity to execute the 2015 Will. To rebut this presumption, the applicants must prove, on a balance of probabilities, the presence of suspicious circumstances.
[74] The issue is therefore whether the applicants have, on a balance of probabilities, established that there were suspicious circumstances surrounding the preparation of the 2015 Will, circumstances calling into question the capacity of Mr. Medeiros, or circumstances showing that the free will of Mr. Medeiros was overborne by acts of coercion or fraud.
[75] The five factors from Royal Trust will be considered in order to determine whether there were suspicious circumstances surrounding the execution of Mr. Medeiros’ 2015 Will.
(a) The Extent of Mr. Medeiros’ Physical and Mental Impairment
[76] There is no dispute that Mr. Medeiros’ physical condition was deteriorating after he was diagnosed with terminal cancer. He was using increasing doses of pain medication as he was suffering physically with pain. He was at times described in the medical records as sleepy and groggy. He was prescribed Ritalin to help with his grogginess. However, no medical evidence was led by the applicants with respect to how or if the pain medication or Ritalin would have impacted his mental capacity or whether it would have caused mental impairment.
[77] The evidence of Mr. Goose, which is not disputed, is that he knew Mr. Medeiros for many years. He was aware of his medical condition. Mr. Goose, as an experienced lawyer, met with Mr. Medeiros alone and asked him questions to satisfy himself that Mr. Medeiros had capacity to provide him with Will instructions. Based on his meeting with Mr. Medeiros, wherein he had the opportunity to observe his behaviour, and having known him for a number of years, Mr. Goose determined that despite Mr. Medeiros’ diagnosis of terminal cancer, he had capacity to provide him with instructions to sign a new Will.
[78] While not having notes of his meeting with Mr. Medeiros is not ideal, Mr. Goose swore an affidavit within a few months of meeting with Mr. Medeiros. It was also evident from the cross-examination on his affidavit that he had a detailed and specific recall of his meeting with Mr. Medeiros. I therefore find his evidence to be reliable. It is also not disputed.
[79] The evidence of Mr. Goose supports a finding that Mr. Medeiros was not suffering from physical or mental impairment sufficient to rebut the presumption of testamentary capacity.
[80] The applicants make general statements that the medication Mr. Medeiros was using substantially limited his ability to properly comprehend his actions and what was going on around him. They provided no specifics or details to support that allegation other than forgetting a password, which is not an uncommon occurrence for many. They say that given the medications he was using, they do not believe that he had the requisite capacity to make a decision to change his Will or to give instructions to Mr. Goose to do so.
[81] The applicants’ evidence, however, is contradicted by their own expert, who is a capacity assessor. She found that she could not conclude that Mr. Medeiros lacked testamentary capacity based on the medical records, which included information about the type and dosage of medication he was using.
[82] The applicants’ general statements about Mr. Medeiros’ level of pain and use of medication to control that pain do not lead me to conclude that Mr. Medeiros suffered from any mental impairment sufficient to rebut the presumption of testamentary capacity.
[83] I also have some concerns with Dr. Lightfoot’s report. First, Dr. Lightfoot never met with Mr. Medeiros personally, and she agreed that Mr. Goose had the advantage of meeting him in person when he signed the 2015 Will. She did not speak with any of Mr. Medeiros’ family members or his spouse to ascertain their observations of Mr. Medeiros prior to his death. She did not speak with any of his caregivers. Her report was based solely on a review of the medical records.
[84] While Dr. Lightfoot acknowledged that there is insufficient evidence in the medical records to conclude that Mr. Medeiros lacked testamentary capacity, she then concludes that based on other factors, such as Mr. Medeiros not telling his children he was excluding them completely from his new Will, that it was unlikely he was aware that he was signing a new Will, or that he understood the implications of signing it. These two findings appear to be contradictory. Furthermore, a key fact upon which Dr. Lightfoot appears to place much reliance was erroneous. The applicants were not excluded completely from his new Will.
[85] As Dr. Lightfoot only reviewed the medical records to form her conclusion and based on the erroneous information that she was given, I place little reliance on Dr. Lightfoot’s report. It does not lead me to conclude that Mr. Medeiros suffered from any mental impairment sufficient to rebut the presumption of testamentary capacity.
[86] There is no dispute that Mr. Medeiros was suffering physically and was in pain. However, there is insufficient evidence that his pain level and medications would have had caused him any mental impairment sufficient to rebut the presumption of testamentary capacity.
(b) Whether the 2015 Will Constitutes a Significant Change from the 2004 Will
[87] The applicants submit that the 2015 Will constitutes a significant change from the 2004 Will. From their perspective, they were entirely excluded from their father’s 2015 Will. That is the information that was provided to Dr. Lightfoot.
[88] That applicants’ position is not accurate. In both his 2004 and 2015 Wills, Mr. Medeiros left his RRSPs to the applicants. As they were the designated beneficiaries, they were able to receive the RRSPs directly, without probate. In both Wills, the applicant Edward Medeiros received his father’s car.
[89] The effect of the 2015 Will is that the applicants did not receive 49% of Mr. Medeiros’ one-half interest in the home he owned with Ms. Moniz. While this does constitute a change from the 2004 Will, I do not consider it to be a significant change. A significant change would have been if Mr. Medeiros’ entire estate, including his RRSPs and his car, were bequeathed to Ms. Moniz. However, this was not the case. Despite their views, the applicants were not excluded from their father’s estate. There was a change in the 2015 Will but it was not significant.
[90] In June 2015, the total value of Mr. Medeiros estate was approximately $416,222, which included his one-half interest in the house, his RRSPs, and his bank account. After deducting the debts and funeral costs that Ms. Moniz paid, the net value of the estate was $386,097. The applicants therefore received 33.6% of their father’s estate, with Ms. Moniz receiving the balance.
[91] Ms. Krolewski’s evidence is that her father told her after his diagnosis that what she and her brother would receive from his estate would be fair. In my view, the 2015 Will accomplished that. His 2004 Will would have not been fair to Ms. Moniz as it would have left essentially his entire estate to the applicants and virtually nothing to his spouse of eighteen years. Based on the bequests made in Mr. Medeiros’ 2015 Will, what the applicants received was fair, as was their father’s stated intention to Ms. Krolewski.
[92] In reading Dr. Lightfoot’s report, I find that her opinion was influenced by the information she was given that the applicants received nothing from their father. In her conclusion, she specifically stated that Mr. Medeiros never told the applicants that he was going to fully exclude them from his Will and disinherit them. As she later testified on cross-examination, the applicants were in fact given a “healthy chunk” of Mr. Medeiros’ estate.
[93] I therefore find that the 2015 Will does not constitute a significant change from the 2004 Will.
(c) Whether the 2015 Will Makes Testamentary Sense
[94] Many of the above comments are also relevant to this analysis. In my view, the 2015 Will makes testamentary sense. Ms. Moniz was Mr. Medeiros’ common-law spouse for eighteen years. In his 2004 Will, he only left her 1% of his half-interest in the home. In essence, the entire balance of his estate went to his children.
[95] The applicants and Dr. Lightfoot place reliance on a report from Dr. Sharma dated April 21, 2015. In that report, Dr. Sharma noted the following:
Mr. Medeiros does have a will in place, as he wants to make sure his common-law wife, Natalie, had rights after his passing. He has ensured that his property will be divided in such a way as to ensure that she will be protected. He says for power of attorney for personal care and health needs, he would like that to be shared between his common law wife, Natalie, as well as his 2 children. He would like all 3 to make decisions together, but he is not sure that is reflected in his actual documentation, which he will go home to check and he will liaise with our social worker, Trish, to make that change, as per his preference.
[96] Mr. Medeiros expressed to Dr. Sharma that he wanted Ms. Moniz to be protected following his death. In my view, the 2004 Will did not protect Ms. Moniz. Assuming the house had a value of $569,000 in 2004, (it was likely worth less at that time) Ms. Moniz would have received 1% of one-half of that amount, or $2,845, pursuant to the 2004 Will.
[97] It makes testamentary sense that Mr. Medeiros would want to divide his estate between his spouse and children. It also makes testamentary sense to bequeath Ms. Moniz his one-half interest in the house they had jointly owned and lived in together for many years.
(d) The Factual Circumstances Surrounding the Execution of the 2015 Will
[98] The circumstances surrounding the drafting of the Will are not suspicious. Mr. Medeiros met with his lawyer of fifteen years, Mr. Goose, and provided him with instructions to change his Will. The Will was drafted by an experienced lawyer who was informed of Mr Medeiros’ medical condition and requested to meet with him alone. Mr. Goose asked Mr. Medeiros questions to determine if he had capacity to provide instructions regarding his Will, and as an experienced lawyer, he knew what questions needed to be asked.
[99] It would have been suspicious if Ms. Moniz had made an appointment with a lawyer who did not know Mr. Medeiros, or if the lawyer was not informed of Mr. Medeiros cancer diagnosis. This was not the case here.
[100] Given Mr. Medeiros’ health, it is not suspicious that he provided Will instructions and the Will and deed to transfer the property to joint tenants was prepared and executed the same day. As Mr. Goose was satisfied that Mr. Medeiros had testamentary capacity, he was prudent to complete the Will that same day.
[101] Mr. Medeiros’ explanation to Mr. Goose about why he was changing his Will is concerning. Mr. Medeiros told Mr. Goose that his children no longer saw him when in fact, they were seeing him on a daily basis. While I am troubled by that, as it was obviously not true, that factor, in and of itself, does not lead me to conclude that the applicants have established on a balance of probabilities that there were suspicious circumstances that would rebut the presumption of testamentary capacity.
[102] It is reasonable to expect that someone facing a terminal diagnosis would want to ensure their affairs were in order, including reviewing any existing Will and updating it if the testator thought any changes were necessary. This is precisely what Mr. Medeiros did.
[103] I therefore find that the factual circumstances surrounding the drafting of the 2015 Will are not suspicious.
(e) Whether Any Beneficiary Was Instrumental in Preparing the 2015 Will
[104] Ms. Moniz, the main beneficiary of the 2015 Will, was not involved in drafting the Will. While she made the appointment with Mr. Goose on Mr. Medeiros’ behalf and drove him to the appointment and waited for him in the lawyer’s office, she was not present when Mr. Medeiros provided his instructions. Mr. Goose specifically met with Mr. Medeiros alone.
[105] I have also considered that Ms. Moniz changed her Will in June 2015. In that Will, the applicants were included as beneficiaries in the event Mr. Medeiros predeceased her. According to her 2015 Will, in the event Mr. Medeiros is to predecease Ms. Moniz, her estate, except her cars, is to be divided equally between her two children and the applicants. In her estate planning, she also did not exclude the applicants from sharing in her estate.
[106] While Ms. Moniz may have made the appointment and drove Mr. Medeiros to meet Mr. Goose, that does not constitute Ms. Moniz being instrumental in preparing Mr. Medeiros’ 2015 Will.
[107] Based on the totality of the above factors, while I am concerned with the reason Mr. Medeiros gave Mr. Goose about changing his Will, that alone is insufficient evidence to satisfy the applicants’ burden of proof, on a balance of probabilities, that there were suspicious circumstances regarding the preparation of the 2015 Will or the capacity of Mr. Medeiros at the time the 2015 Will was executed. As a result, the presumption of testamentary capacity has not been rebutted.
(f) Undue Influence
[108] The applicants have made a bald allegation of undue influence. To constitute undue influence, there must be coercion: Scott, at para. 112. Significant influence or persuasion upon the testator is not sufficient to prove undue influence: Scott, at para. 112. The onus is on those challenging the Will, in this case, the applicants, to prove undue influence. They must prove that the mind of the testator, Mr. Medeiros, was overborne by the influence exerted by, in this case, Ms. Moniz, such that there was no voluntary approval of the contents of the Will: Pascu v. Benke, 2005 1086 (Ont. S.C.), at para. 26.
[109] The applicants have led no evidence to support an allegation of undue influence. They led no evidence that Ms. Moniz exercised overbearing power or influence on Mr. Medeiros that led him to change his Will, such that there was no voluntary approval by Mr. Medeiros of the 2015 Will. Further, I have already found that Ms. Moniz was not instrumental in preparing Mr. Medeiros’ 2015 Will, which supports the conclusion that there was no undue influence. I also found Mr. Goose’s evidence, which is not disputed, to be reliable and he was satisfied that Mr. Medeiros was not under any undue influence when he signed his 2015 Will.
[110] I am therefore not satisfied that the provisions of the 2015 Will were procured by undue influence.
Conclusion
[111] The presumption that Mr. Medeiros had testamentary capacity when he executed his Will on June 8, 2015 has not been rebutted. The applicants have not met the burden of proof, on a balance of probabilities, that there were suspicious circumstances surrounding the 2015 Will. The applicants have also not discharged their burden of proving the presence of undue influence on a balance of probabilities.
[112] Accordingly, I find that the Mr. Medeiros’ Will, executed on June 8, 2015, is valid and the application is therefore dismissed. The certificate of pending litigation registered on title to Ms. Moniz’s home shall be vacated forthwith.
[113] The respondent has been successful and is entitled to her costs, subject to any offers to settle that may be relevant. If the parties cannot agree on the quantum of costs, the respondent shall file and serve a Bill of Costs, any relevant offers to settle and written costs submissions by January 30, 2020. Costs submissions shall be no more than two pages double-spaced. The applicants shall file responding materials, of the same length, by February 14, 2020.
L. Shaw J.
Date: January 03, 2020
COURT FILE NO.: CV-15-5378-ES
DATE: 2020 01 03
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SANDRA KROLEWSKI and EDWARD MEDEIROS
Applicant
- and -
MARIA NATALIA MONIZ personally and in her capacity as ESTATE TRUSTEE FOR THE ESTATE OF THE LATE EDUARDO MEDEIROS
Respondent
REASONS FOR DECISION
L. Shaw J.
Released: January 03, 2020