COURT FILE NO.: 11-32136
DATE: 2020-02-21
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Cheryl Leonard
Mark A. Munro, for the Moving Party
Moving Party
- and -
Zara Zychowicz
Frank J. Tkach, for the Defendant
Defendant
HEARD: September 16,17,19, 20 and December 12, 2019
REASONS FOR DECISION
P. R. SWEENY J.
INTRODUCTION
[1] The issue in this case is the validity of the October 23, 2007 Will of Helene Stella Polomick (Helene). The moving party, Cheryl Leonard (Cheryl), says that the responding party, Zara Zychowicz (Zara), cannot establish that Helene knew and approved of the contents of the Will and that she had the requisite capacity to make the Will. Cheryl asserts there were suspicious circumstances and the 2007 Will should be set aside; further, the Will of 2002, which made Cheryl essentially the sole executor and beneficiary, should govern. Zara submits that Helene knew and approved of the contents of the Will and had the requisite capacity when she made the Will. Zara also submits that she has the benefit of a presumption of capacity that was not displaced by evidence of suspicious circumstances. In any event, she can satisfy the onus upon her to prove the validity of the Will.
[2] For the reasons that follow, I find that the 2007 Will is valid.
BACKGROUND
[3] Helene died on April 4, 2011 at the age of 86. On October 23, 2007, Helene executed a Will that named Zara as the sole beneficiary and estate trustee. Zara is the niece of Helene, the only daughter of Helene’s half-brother John Zychowicz (John).
[4] It is acknowledged that Helene had mental health issues in her life. She was diagnosed as bipolar. Helene was twice married. In 2005, her second husband was placed in a nursing home. She continued to live in the matrimonial home until her death in April 2011.
[5] After the death of Helene, Zara applied for probate and was appointed as Estate Trustee with a Will on May 9, 2011. By way of notice of motion dated December 6, 2011, Cheryl sought the return of the certificate of appointment and directions with respect to the validity of the Last Will and Testament of Helene dated October 23, 2007 alleging there was lack of testamentary capacity, lack of knowledge and approval of the contents, suspicious circumstances, and undue influence. On June 24, 2015, Nightingale J. ordered that the parties exchange affidavits of documents and complete examinations and cross examinations. The matter came on for hearing before me on September 16, 17, 19 and 20, 2019. It was adjourned to December 12, 2019 to hear oral evidence from a witness, James Sweetlove. On the consent of the parties, the issues were to be determined by me based on the affidavit evidence and the evidence of Mr. Sweetlove.
ISSUE
[6] The issue for me to determine is whether Helene knew and approved of the contents of her Will, had capacity, and whether there was any undue influence on her. The test for testamentary capacity is the formulation as set out in Banks v. Goodfellow (1870), L.R. 5 Q.B. 549 (Eng. Q.B.). at p.565:
It is essential to the exercise of such power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties-that no insane delusion shall influence his will and disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.
[7] In Scott v. Cousins, [2001] O.J. No. 19, Cullity J., at para. 39, articulated the relevant principles which he extrapolated from the legal authorities including Vout v. Hay, 1995 CanLII 105 (SCC), [1995] 2 S.C.R. 876, as follows:
The person propounding the will has a legal burden of proof with respect to due execution, knowledge and approval and testamentary capacity.
The person opposing probate has the legal burden of proving undue influence.
The standard of proof on each of the above issues is a simple 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 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.”
The evidential burden can be satisfied by introducing evidence of suspicious circumstances—namely, evidence which if accepted would tend to negate 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 simple 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.
[8] 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 (see Vout v. Hay at para 26).
PRIOR WILLS
[9] The history of the prior Wills executed by Helene is an important consideration. Helene executed several Wills during her lifetime. These include:
A Will dated December 21, 1976, which appointed Gladys Leonard, the mother of Cheryl, as the executor and left the rest and residue of her estate equally to Gladys’s children Deborah, Brian and Cheryl.
On December 19, 1984, Helene made a codicil to the Will deleting reference to the three beneficiaries and leaving all the estate to Cheryl, but if Cheryl predeceased her, then to Brian Leonard.
On September 7, 1989, Helene executed a Will appointing her half-brother John as executor, and her half-sister Lillian Zychowicz (Lillian) as the alternative executor. The residue of the Estate went to John and, if he predeceased her, then to his children, his only child being Zara.
On October 10, 2002 Helene executed a Will which left the residue of her estate to Cheryl. She executed powers of attorney naming Zara and Cheryl jointly.
[10] James Sweetlove was the Solicitor for Helene. At the time she met with Mr. Sweetlove with respect to the 2002 Will, she told him she was a manic-depressive and her family doctor was Dr. Yellen. Mr. Sweetlove’s evidence is that to confirm her capacity, he requested a letter from Dr. Yellen. He received correspondence from Dr. Yellen dated February 1, 2002 wherein Dr. Yellen stated that he did feel that she was capable of directing the preparation of her new Will and power of attorney at the present time.
[11] Initially, Zara and Cheryl were to be executors and beneficiaries together, but on May 24, 2002, Helene contacted James Sweetlove to state that she had a falling out with Zara and Zara was to be taken off the Will as executor and beneficiary. I view this as an important fact because it shows that Helene made changes to her Will based on her view of her relationship with people. She is entitled to do that.
PREPARATION AND EXECUTION OF THE 2007 WILL
[12] The Will in issue is the Will dated October 23, 2007. It appoints Zara as the trustee and sole beneficiary. Mr. Sweetlove had prepared a number of wills for Helene. He was a certified specialist in Estates prior to his retirement. He provided an affidavit and was cross-examined on that affidavit. He also gave evidence in court.
[13] On August 30, 2007, Mr. Sweetlove took notes of a meeting with Helene. In those notes he recorded:
husband was at St. Joseph’s Villa
half-sister Lillian Zychowicz had power of attorney for her husband
wants her power of attorney to be her half-brother John
will residue of her estate to Zara Zychowicz and executor
delete Cheryl - upset with her
husband owns the house
she has bonds (CSB’s etc)
account at Desjardins Credit
[14] The Will, dated October 23, 2007, was witnessed by Mr. Sweetlove and his secretary.
[15] Mr. Sweetlove’s evidence in court focused on the circumstances surrounding the execution of the Will.
[16] Mr. Sweetlove had no particular recollection of the execution of this Will. However, he testified as to his invariable practice. His practice would be to meet with the testator alone. He would have a copy of the Will for the testator and a draft in front of him. He would review the important aspects of the Will with the testator. If there were any issues, he would address them. After he had done that, he would invite his assistant in, and the Will would be executed and each page initialed. He and his assistant would sign as witnesses.
[17] I am satisfied based on his usual practice that in the circumstances of this case, the Will was duly executed with the requisite formalities after having been read over to or by a testator who appeared to understand it and that Zara is entitled to the presumption that Helene knew and approved of the contents of the Will and had the necessary capacity.
HELENE’S ELECTION UNDER THE FAMILY LAW ACT
[18] On September 30, 2010, Helene commenced a court action against her husband’s estate and made an election to receive under the Family Law Act, R.S.O. 1990, c. F.3, as opposed to under his Will. Under her husband’s Will, Helene received only a life interest in the matrimonial home. She was not a residual beneficiary under his Will.
[19] Helene executed the election and also swore an affidavit in support of the Application. Although Mr. Sweetlove did not have carriage of the application, he had some involvement in the matter. It was Mr. Sweetlove’s evidence that Helene was capable of providing instructions to him with respect to the application.
ARE THERE SUSPICIOUS CIRCUMSTANCES?
[20] Zara has the benefit of the presumption outlined above. Can Cheryl displace the presumption by raising suspicious circumstances? Suspicious circumstances can be satisfied by adducing or pointing to some evidence which, if accepted, would tend to negate knowledge and approval or testamentary capacity.
[21] There are no suspicious circumstances raised surrounding the preparation of the Will. Even if there were, the evidence establishes that Helene knew and approved of the contents of the Will. Mr. Sweetlove received instructions from Helene. She advised him of what essentially was in her estate. I do not regard her failure to address a small RIF as raising any issue of capacity. (The RIF was in the amount of about $1,800 at Helene’s death. Cheryl was named as the beneficiary and it was never changed.)
[22] She gave a reason for changing the beneficiary (a reason which she had given in the past for a beneficiary change). There is no reason to think she was not aware of potential beneficiaries. She came to his office alone and executed the Will in the presence of Mr Sweetlove and his assistant.
[23] There is no evidence tending to show that the free will of the testator was overborne by acts of coercion or fraud when the Will was executed. Cheryl points to an interaction with John at the hospital in June 2010 which was recorded in the nurse’s notes. The interaction suggests that he was upsetting Helene. This is not evidence of undue influence. It is simply evidence that John was frustrated with her at that time. There is no evidence of John’s involvement with her at the time the Will was made. Cheryl cannot establish any undue influence on Helene surrounding the preparation of the Will.
[24] Is there evidence of incapacity? Cheryl points to prior and subsequent hospitalizations and the acknowledged bipolar disorder Helene suffered from as raising an issue of capacity. She points to the inquiry that Mr. Sweetlove made of Helene’s family doctor at the time of the 2002 Will. Cheryl also points to the retrospective report of Dr. Schulman. Is this sufficient to call into question Helene’s capacity? There is no contemporaneous evidence of lack of capacity at the time the Will was made. No concerns were raised by Lillian, John, or Mr. Sweetlove. It is evident from Lillian’s affidavit evidence that she was aware Helene made John her power of attorney because she was directing inquiries about Helene to John. There were no medical records around the time that the Will was made which would suggest any issue of capacity.
[25] In my view, the only real evidence is the report of Dr. Schulman. I have some concerns that a retrospective report alone is sufficient to raise suspicious circumstances. I have concerns about Dr. Schulman’s report. However, it appears the requirement is only to produce some evidence, which, if believed could raise an issue. On that basis, I am prepared to accept that Cheryl has adduced some evidence of suspicious circumstances with respect to capacity such that Zara has the onus of proving testamentary capacity. However, I am satisfied that Zara has satisfied that onus.
MEDICAL RECORDS
[26] There were voluminous medical records produced and reviewed in this matter. These records included incidents which occurred in 1991 and a hospitalization in 2005. The records are consistent with Helene’s diagnosis as bipolar. There were manic phases which resulted in presentation to hospital and assessments. The hospitalization in 2005 was two years prior to the execution of the Will. There is then evidence of only a few medical interventions until 2010. There were notes of Dr. Yellen which indicated in June 2006 she saw him regarding a lump in multiple locations, and wrist, hand, and finger pain; on October 26, 2006, she attended Hamilton Health Sciences Emergency (HHSE) with a cold; on June 21, 2009, she attendee HHSE with an arm laceration; and on August 15, 2009 she attended HHSE with an injured hand as a result of a slip and fall in her garden.
[27] She was admitted to St. Joseph’s Health Care between January 3 and 18, 2010. She had fractured her wrist and bruised her chin. There are voluminous notes of that stay. Lillian was contacted at that time and said that Helene has suffered from bipolar her entire life. The note says that Lillian was “not concerned about her at that time, although she presented at the emergency room with pressured speech and tangentiality.” She was found to be capable of making treatment decisions and was discharged home.
[28] In March 2010, Helene was in HHSE for a right shoulder injury as a result of a fall down her stairs. Lillian was contacted by the hospital and she was quoted as saying that Helene was "functional in her chronically dysfunctional way” and described Helene as having a “long history of bipolar illness, but predominantly depressed all of her life with some episodes of mania.” She said that “for the past two years she’d been predominantly “high” and that she refuses to see her GP.”
[29] In the same notes, John described her behaviour which was identified as “hypomanic, very tangential with flights of ideas and had rapid pressured speech” as her baseline. The comments of Lillian and John are consistent. This is what Helene was like. Neither Lillian nor John thought she was incapable in any way. John and his wife and Lillian lived in the same house throughout this time period.
[30] A July 24, 2010 HHSE progress note made as a result of attendance at the emergency department for an injured leg, records an interaction with John where he was asked if he thinks the patient had a cognitive decline. He said it was possible but “she seemed to be coping as usual.”
[31] In January 2011, Helene presented at the HHSE, and the doctor was of the opinion that she suffered from mental disorder of the nature and quality that likely will result in serious bodily harm and she was involuntarily admitted under section 51 of Mental Health Act, R.S.O. 1990, c. M. 7. At that time, there was an issue of whether she could stay in her own home. She was discharged from the hospital on January 26, 2011, and the diagnosis included mild cognitive impairment.
[32] She resumed visits to Dr. Yellen and he saw her in February and March 2011. On April 4, 2011, she died in her own home.
EXPERTS
[33] I have been provided with evidence from two experts: Dr. Schulman on behalf of Cheryl and Dr. Pachet on behalf of Zara. Both experts provided reports. Both experts were cross-examined extensively. Both experts acknowledge that it is for me, as the trier of fact, to make the ultimate determination on the issue of capacity.
DR. SCHULMAN
[34] I will first address the report of Dr. Schulman. Dr. Schulman is acknowledged as an expert in this field. He has provided expert opinion evidence in court on many occasions. In this case, he was provided with a summary of the facts prepared by counsel for Cheryl. The summary of facts was acknowledged to be created with advocacy in mind. I find that the provision of summary of facts could be seen to taint the evidence of Dr. Schulman. In his report, he writes: “The stark difference between the 2002 Will and the 2007 Will reflect radical changes in her thinking about potential beneficiaries.”
[35] In my view, the circumstances surrounding the preparation of her prior Wills shows that Helene was ambivalent about her beneficiaries. She named John as a beneficiary for some 12 years. In 2002, she initially said she wanted the beneficiaries to be Zara and Cheryl but ultimately decided on just Cheryl. In 2007, she directed that it would be just Zara. This does not, in my view, reflect a radical change.
[36] Dr. Schulman opined that her cognition was only mildly impaired.
[37] Dr. Schulman noted that given her lifelong history of bipolar I disorder, he considered her to be very vulnerable to influence. However, the evidence appears to suggest that she was not vulnerable to influence. She appeared determined to live in her own home. She visited her husband in the nursing home on a daily basis from 2005 until his death: regularly taking the bus. Her willfulness or stubbornness was noted by Lillian in her affidavit evidence.
[38] Dr. Schulman also asserts that she was dependent on John for health and financial matters and her day-to-day care. However, the is that she was not solely dependent on John for health and financial matters. Lillian was also involved.
[39] In 2010, Helene’s behaviour was described by Lillian in the medical records as typical for her. Lillian expressed no concern at that time about her capacity. Lillian expressed how close she was to Helene throughout her life.
[40] Dr. Schulman was also not aware tha tHelene had made the Election under the Family Law Act after the death of her husband in 2010.
[41] I note that Dr. Schulman is critical of the report prepared by Dr. Yellen at the time of making of the 2002 Will. In his view, the report was not sufficient. Given that there was a change from initial instructions to have Cheryl and Zara both as beneficiaries to just Cheryl, it would appear that Dr. Schulman would be of the opinion that there was the same issue of capacity surrounding the execution of that will. If that were the case, then the 1989 Will in which John was the sole beneficiary would govern. However, I do not accept Dr. Schulman’s opinion with respect to this Will, so the issue of the validity of the 2002 Will does not arise.
DR. PACHET
[42] Dr. Pachet is also qualified to give expert opinion evidence. His report was not influenced by a statement of facts prepared by counsel for Zara.
[43] It was his opinion that:
Overall, based upon the documents reviewed, there is no substantive or conclusive evidence to suggest that Helene did not meet the Banks v. Goodfellow criteria when she executed a Will dated October 23, 2007. There is no evidence to suggest she would not know the nature and effect of a Will, her natural beneficiaries, or the extent of her assets. Her cognitive impairment and degree of executive dysfunction would not have been viewed as significant threat to her testamentary capacity. As well, there is no indication of a challenge to her decisional capacity in association with her personal matters or financial affairs prior to or at the time she changed her Will in 2007.
[44] He went on to opine that:
… based on the documentation reviewed there is no substantive evidence that Helene was delusional or paranoid when she executed the 2007 Will. … While the rationale regarding her choice of beneficiary 2007 was not documented in a fulsome manner, there is no substantive information to argue the delusions or paranoid ideations influenced her estate position at that time.
[45] I prefer the evidence of Dr. Pachet to Dr. Schulman. Dr. Pachet was not influenced by the review of the facts. In addition, Dr. Pachet’s opinion of the medical evidence is consistent with my view. The paucity of evidence of medical visits from 2005 to 2009 supports the view that she was functioning well and not under any delusions.
STEKAR v. WILCOX
[46] Cheryl submits that Stekar v. Wilcox, 2016 ONSC 5835, affirmed 2017 ONCA 1010, is similar to this case. In that case, the testator had questionable capacity due to historical and recent health issues. The Will provided a radical change of beneficiaries. It was typed but the testator did not have a typewriter. It was not prepared by a lawyer or witnessed by a lawyer. The Will was executed on May 21, 2012 the deceased died on June 18, 2012. The facts of this case have very little resemblance to the facts in Stekar.
CONCLUSION
[47] In summary, assuming that suspicious circumstances have been raised by Cheryl, Zara has satisfied her onus of establishing that Helene had capacity. Mr. Sweetlove, the solicitor who took instructions for the Will, had no concern about Helene’s capacity at the time he took instructions or when the Will was executed. Some 2 ½ years after the execution of the Will, Helene was hospitalized. Even at that time, Lillian was not concerned about her mental capacity. John was also not concerned. They were not sufficiently concerned about her ability to care for herself that they moved her into a nursing or retirement home. She continued to live in her home.
[48] Given Helene’s history with respect to wills, the change of beneficiary was not a radical change. She understood her assets. She understood potential beneficiaries. The change of beneficiary was not as a result of any delusion or disease of the mind. The October 23, 2007 Will is valid.
[49] If the parties are unable to agree upon costs, I will accept written submissions limited to 10 pages plus any offers to settle and bills of costs. Zara is to provide the submissions by February 28, 2020. Cheryl is to provide her submissions by March 6, 2020. Any reply by Zara, limited to five pages to be delivered by March 13, 2020. If no submissions are received by March 2, 2020, the issue of costs will be deemed settled.
Sweeny J.
Released: February 21, 2020
COURT FILE NO.: 11-32136
DATE: 2020-02-21
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E N:
Cheryl Leonard
Moving Party
- and –
Zara Zychowicz
Respondent
REASONS FOR DECISION
Released: February 21, 2020