COURT FILE NO.: 17-61561 DATE: 2021/03/31

RE: Court File No. 17-61561

ONTARIO SUPERIOR COURT OF JUSTICE

IN THE MATTER OF THE ESTATE OF AUDREY RONA STEWART

B E T W E E N:

RONALD WILLIAM STEWART

Plaintiff

and

SANDRA LEE STEWART

Respondent

BEFORE: Turnbull, J.

COUNSEL: John Kranjc, Counsel, for the Plaintiff. Sandra Lee Stewart, Self-represented.

DATES HEARD: February 16, 17, 18 and 19, 2021

Table of Contents

• Overview of the Facts . para. 6
• Issues . para. 48
• The Law .. para. 49
• Analysis. para. 74
• Conclusion . para. 128

JUDGMENT

[1] This trial is brought, pursuant to the directions of the court, to determine the validity of the last will and testament of Audrey Rona Stewart (the “Testator”), which was signed on August 30, 2011 (the “2011 Will”). The Testator died on June 26, 2016, at the age of 86.

[2] The parties are the two adopted children of the Testator. Ronald William Stewart (the “Plaintiff”) was named the sole beneficiary in the 2011 Will. Sandra Lee Stewart (the “Defendant”) contests the validity of the 2011 Will on four grounds:

1. the Testator lacked the requisite testamentary capacity to execute the 2011 Will;

2. the Plaintiff unduly influenced the Testator to execute the 2011 Will;

3. the Testator did not have knowledge of, and approve of, the contents of the 2011 Will; and

4. the Testator executed a new will in 2014, thereby revoking the 2011 Will.

[3] On these grounds, the Defendant seeks an order from the court declaring that the 2011 Will is invalid. She submits that the last will and testament of the Testator is a 1994 mirror will, under which the Plaintiff and the Defendant would take equally. In the alternative, the Defendant argues that there exists a will executed in 2014 that revokes the 2011 Will, under which she is a limited beneficiary. The alleged 2014 Will was never presented in evidence.

[4] The Plaintiff disagrees with the Defendant and seeks the following from the court:

a) an order discharging the Defendant’s objection of the 2011 Will; and

b) a declaration that the 2011 Will is valid and constitutes the Testator’s last will and testament

[5] For the reasons that follow, I find for the Plaintiff. In my view, the Testator (a) had the requisite capacity to execute the 2011 Will, (b) was not unduly influenced by the Plaintiff in doing so, and (c) had knowledge of, and understood the contents of, the 2011 Will. Furthermore, there is insufficient evidence to find that the alleged 2014 will exists. As such, I find that the 2011 Will is valid and constitutes the Testator’s last will and testament.

Overview of the Facts

[6] I find the following facts from the evidence that I have heard at this trial and the documents filed as exhibits.

[7] The year 2010 marked the beginning of a foreboding period for the Stewart family. The Testator was hospitalized in September 2010 and underwent coronary bypass surgery on January 17, 2011. Medical records from this period repeatedly indicate that the Testator was confused, agitated, and worried about her husband, Arthur Meighen Stewart (“Art”), who had recently been diagnosed with dementia. Following a successful surgery, the Testator was discharged from the hospital on January 26, 2011. She returned home, where, subject to some continued support from her family, she lived on her own until 2014. In March 2011, Art was committed into a long-term care facility, where he remained until his death in February 2014. Later that year, the Testator suffered a serious fall. She was hospitalized and eventually diagnosed with dementia. She was committed into a long-term care facility, where she remained until her death on June 26, 2016.

[8] Prior to her hospitalization in 2010, the Testator was Art’s primary caregiver. She scheduled and attended his medical appointments, administered his medications, and generally cared for him in their home. She received some help with this work from the Plaintiff and homecare service providers from Community Care Access Centre (“CCAC”).

[9] The Defendant’s son, Jeff (the Testator’s eldest grandson), and Jeff’s common law partner, Dallas, also provided important support work during this period. The couple testified that they moved back to Hamilton from Oshawa in 2010 in order to assist the Testator and Art during this difficult time. Jeff initially moved into the Testator’s garage, before renting a nearby home with Dallas. Both Jeff and Dallas, along with the Testator, the Plaintiff, and CCAC, assisted with domestic labour, property maintenance and household errands.

[10] The Plaintiff, CCAC, Jeff, and Dallas worked together to support the Testator during her recovery from bypass surgery. After Art was committed into long-term care in March 2011, CACC stopped attending the Testator’s home.

[11] Following the Testator’s recovery from bypass surgery, the Plaintiff, Jeff, and Dallas continued to support the Testator until her eventual placement in long-term care in late 2014. Jeff mowed the Testator’s lawn and shovelled her driveway. Dallas assisted her with household cleaning. The Plaintiff installed new kitchen floors and countertops in the Testator’s home. The assistance that they rendered to the Testator was admirable. The house was generally well kept, as was the Testator in her personal grooming and appearance.

[12] During the period between Art’s placement in long-term care in 2011 and the Testator’s fall in 2014, the Testator lived a largely independent life, subject to some continued support from the Plaintiff, Jeff, and Dallas. The Testator scheduled and attended her own appointments, made her own medical, financial, and legal decisions, and maintained social relationships.

Scheduling Appointments

[13] There is no dispute that the Testator scheduled her own appointments, as well as those of her husband during his last few months at home. Jeff described the Testator’s personal calendar as looking like a “novel”. The Defendant, similarly, testified that the Testator kept an “amazing” calendar filled with so many details that she had to use a second notepad for Art’s appointments.

Driving

[14] The Testator had a driver’s license and would often drive herself to local appointments and to shop for groceries. She would also drive Art to his appointments. When Art was placed in long-term care, she would drive to visit him, sometimes several times a week. In instances where she felt uncomfortable driving alone – such as on highways or where parking in downtown Hamilton was required – the Testator called upon Jeff, Dallas, or the Plaintiff for assistance.

[15] There is some dispute between the parties as to how often the Testator would request a ride. Jeff and Dallas were of the view that the Testator should not have been driving at all. Jeff testified that the car was dented. He was of the view that the Testator became overwhelmed caring for Art, and that she grew increasingly weary after he was placed in long-term care. Accordingly, Jeff testified that he and Dallas tried to minimize, as much as they could, the number of trips that the Testator took on her own. On cross-examination, Jeff acknowledged that the Testator would, on occasion, drive herself to the grocery store and to visit Art at the long-term care home.

[16] In any event, with respect to appointments, one thing is abundantly clear: whether the Testator drove herself or received a ride from family, she always attended independently upon arrival.

Legal Appointments & the 2011 Will

[17] The Testator attended to her own legal affairs. This is clear in the evidence of Mr. Anthony De Rubeis, the Stewarts’ long-time solicitor. Mr. De Rubeis was called to the bar in 1969. He has practiced estates law and real estate law in Hamilton for over fifty years. He estimated that, during his career, he has received instructions from over two thousand clients to prepare and sign wills.

[18] Mr. De Rubeis testified at trial that, sometime in the summer of 2011, he received a phone call from the Testator advising him that she wished to update her 1994 will. That will had been signed at the same time that her husband, Art, had signed his will. The wills were “mirror wills”, meaning that the Testators left their estate to the survivor of the two of them and the residue to their children in case of a mutual death.

[19] Mr. De Rubeis scheduled a meeting at his office with the Testator on August 26, 2011, after she had called him for an appointment. He recalled that, on the day of the meeting, the Testator was driven to his office in downtown Hamilton by the Plaintiff. The Plaintiff remained seated in the office lobby while Mr. De Rubeis met with the Testator privately in a separate office.

[20] Mr. De Rubeis testified that he received instructions from the Testator in a private room. There, he was told to exclude the Defendant from the will and to name the Plaintiff as the sole beneficiary, with the Plaintiff’s children as residual beneficiaries. He was also instructed to make corresponding changes to the Testator’s power of attorney. Mr. De Rubeis made handwritten notes of the meeting, which were entered as exhibit 3.

[21] Mr. De Rubeis testified that he inquired into whether the Testator understood the nature and scope of her assets, and the consequences that changing her will would have on their disposal. He was satisfied that she did. He did not recall discussing the Defendant’s children during the meeting.

[22] Given the marked departure from the 1994 mirror will, Mr. De Rubeis also turned his mind to the Testator’s capacity and to whether the change in beneficiaries might have been unduly influenced. With regard to the latter concern, he specifically noted in his testimony that he considered whether there was an imbalance of power between the Plaintiff and the Testator that the Plaintiff was attempting to exploit. Mr. De Rubeis was not aware that the Testator had undergone bypass surgery in January of that year. Nonetheless, following a half-hour appointment with the Testator, Mr. De Rubeis was satisfied that the Testator’s decision to change her will was both logical and voluntary.

[23] Mr. De Rubeis testified that the Testator was persistent about the beneficiary change, which she attributed to an increasingly estranged relationship with the Defendant. The Testator told him that, over the years, she had a strained relationship with her daughter and felt that her daughter had abandoned her. She indicated that the Defendant did not come around to visit her as she used to do. His notes made on August 26, 2011, state: “she never sees me”. I find that this entry corroborates the evidence that Mr. De Rubeis has given in that respect. He acknowledged that her instructions for the 2011 Will troubled him because it was a significant departure from what she and Art had originally provided in their mirror wills, many years before. Mr. De Rubeis recalled that he discussed the ramifications of cutting the Defendant out of the will with the Testator. However, he felt that her mind was made up before she came into his office.

[24] A follow-up appointment was made to review and sign the 2011 Will on August 30, 2011. Mr. De Rubeis, once again, met privately with the Testator. He had her read the updated draft over slowly. He then reviewed it with her line-by-line. He testified that she approved of the changes. The 2011 Will was then executed in the presence of Mr. De Rubeis and his secretary, Ashley McLean. The Testator initialled the bottom corner of each page and signed the document on its sixth and penultimate page. Mr. De Rubeis and Ms. McLean subsequently did the same in the presence of the Testator. [1] Once the 2011 Will was signed and witnessed, the Testator was sent home with a copy. At the same time, she signed a power of attorney over property. [2]

[25] I note that the signature of the Testator is very clear and legible. It is written in a straight, unwavering line. It does not evidence fragility or lack of ability to write clearly, as is sometimes exhibited by elderly people when they sign documents.

[26] Mr. De Rubeis testified that the Testator was a very unique person. He recalled that once she made her mind up about something, she would not bend. He felt that she was less flexible than her husband, Art. In Mr. DeRubeis’ view, the Testator was “very much a smart person”.

[27] Three years later in 2014, Mr. De Rubeis and the Testator worked together as co-executors of the estate of Anne Carruthers, a close friend of the Testator. Mr. De Rubeis was of the view that the Testator was competent in discharging her executor duties. For example, he noted that the two of them worked jointly to sell Ms. Carruthers’ house. They received and considered several offers. Mr. De Rubeis recalled that both the Plaintiff and the Defendant were beneficiaries of Ms. Carruthers’ estate. He thought that the Testator worked diligently to ensure that her children received their due. Through out this process, Mr. De Rubeis met with the Testator at her home. He testified that she was always well dressed and that her home was well kept.

[28] I found Mr. De Rubeis’s evidence to be very factual and reliable. His relationship with Art and the Testator was unique in that he was their family lawyer in excess of forty years. He had notes of his meeting with the Testator when he took instructions from her for the 2011 Will. [3] His recollection of events, and of her ability to comprehend what she was instructing him to do, was clear. I unequivocally accept his evidence that the Testator was competent to make her will and did so voluntarily, without coercion from the Plaintiff or anyone else.

Financial Appointments

[29] The Testator attended to her own banking and financial affairs. If she received a ride to her bank or financial advisor’s office, there is no evidence that her driver attended inside with her (except to sit in the waiting room). For example, the Testator’s financial advisor, Lynda Kaufmanis, testified that the Plaintiff would occasionally drive the Testator to financial appointments, but would never go into meetings with the Testator.

[30] Ms. Kaufmanis is a Certified Financial Planner and has enjoyed that professional designation for approximately twenty years. In that work, she and her employers assist people with financial planning, give them advice and discuss such things as their investments, insurance coverage, taxes, and tax-free savings accounts. She also testified that she took the Certified Professional Consultant on Aging Designation Program: a course on professionally advising seniors who had experienced a trigger event, such as a serious fall, that resulted in their mental health declining.

[31] Ms. Kaufmanis worked with GIC Financial Management from 2000 to 2016 as an office administrator under the direction of her direct boss, Gerry Flannigan. Over the years, her role and responsibilities increased so that, by 2011, she was meeting with her clients at least once annually to discuss their financial plans. Ms. Kaufmanis makes certain that each of her clients have a will. She recalled meeting with Art and Audrey Stewart at least once per year and sometimes two times per year after 2000. She felt that she came to know them well over the years. She described the Testator as being very smart and forthright. She felt that the Testator was an honest, hardworking woman.

[32] Ms. Kaufmanis described the Plaintiff as “passive”. She testified that, if the Testator asked the Plaintiff (who would wait in the reception area of her office) what he thought about her financial affairs, he would always defer to the Testator and simply answer, “whatever you think, mom”. While the Plaintiff did share a bank account with the Testator, it appears that he exercised no control over her finances, aside from consolidating some existing accounts following Art’s death and setting up some auto-payments for reoccurring bills.

[33] When Art died in 2014, Ms. Kaufmanis and Mr. Flannigan met with the Testator for lunch to discuss her finances. After a lengthy meeting, the Testator advised Ms. Kaufmanis that she wanted the Plaintiff to be named the sole beneficiary of her registered retirement income fund and tax-free savings account. The Testator signed written instructions to Ms. Kaufmanis on February 18, 2014, to that effect. [4] Ms. Kaufmanis explained that that document, dated February 18, 2014, is a change of beneficiary form on a Registered Investment Fund. She stated that the Testator signed it in front of her and she guaranteed it was the Testator’s signature by placing her stamp on the left side of the document. She explained the same procedure was followed with respect to the Testator’s Tax-Free Investment Account. [5]

[34] Ms. Kaufmanis testified that the Testator was “adamant” about the beneficiary change, which was why she remembered it all these years later. Similar to Mr. De Rubeis, Ms. Kaufmanis testified that the Testator explained to her that the Defendant, a beneficiary under the previous plan, had distanced herself from the Testator and only came around when she needed money.

[35] Ms. Kaufmanis recalled that, following her meeting with the Testator, she was of the view that the Testator was mentally competent and had arrived at her decision to change beneficiaries on her own accord. She testified that she had, in the past, had to call on attorneys for health inquiries into the mental capacity of clients. She felt that the Testator presented no such concerns when they met 2014. She further testified that she discussed the pros and cons of changing beneficiaries with the Testator, and was ultimately satisfied that the Testator understood the consequences of her decision and that it was her decision, alone.

[36] I unequivocally accept the evidence of Ms. Kaufmanis as it relates to the competency of the Testator and the absence of coercion in giving her instructions to Ms. Kaufmanis. It corroborates the observations and opinion expressed by Mr. DeRubeis.

Medical Appointments

[37] Between 2010 and 2014, the Testator scheduled and attended numerous medical appointments, and underwent several medical procedures. During this period, the Testator’s medical records indicate that she gave her informed consent to several different doctors without concern or objection about her capacity to do so. The Plaintiff testified that it was not until 2015 that he first used his medical power of attorney to act on the Testator’s behalf.

[38] Between 2010 and 2014, the Testator was also responsible for taking her own medication. Her medical records indicate that her doctors were not concerned with her ability to fill and follow their prescriptions, even when dosages and drug-types were subject to significant – and potentially dangerous – changes. By way of example, the Testator was taking anticoagulant medication (colloquially known as “blood thinners”) to help prevent the formation of blood clots. Part of the Testator’s treatment included monthly blood tests. She arranged for her own blood-work and often drove herself to her monthly appointment. She was also responsible for filling her own prescription, which, according to her medical record, was subject to change on numerous occasions. On cross-examination, the Defendant agreed with counsel for the Plaintiff that the Testator required a certain “wherewithal” to understand the consequences and changes of her medication. The Defendant further agreed that the Testator’s doctors must have been confident in the Testator’s ability to safely take her own medication in accordance the prescribed schedule.

Ongoing Social Relationships

[39] The Testator maintained various social relationships with friends and family until her fall in 2014. For instance, both the Plaintiff and the Defendant agreed that the Testator kept in touch with a relative from New Brunswick. The Defendant testified that the Testator spoke on the telephone with the relative every Sunday. Jeff suspected that these calls stopped around the time of the Testator’s fall in 2014.

[40] The Plaintiff testified that the Testator would go for coffee with her friend and neighbour Sylvia, and that the Testator made some friends with guests at Art’s long-term care facility.

[41] The Testator’s friend and neighbour, Sharon MacDonald, also testified that she and the Testator regularly went to Tim Hortons together for coffee and conversation. On cross-examination, Ms. MacDonald stated that she saw the Testator “daily” prior to 2010, and maintained a close relationship thereafter, until the Testator’s death in 2016.

The Alleged “2014 Will”

[42] Ms. MacDonald, who was called as a witness by the Defendant, testified that, during one of her trips to Tim Hortons with the Testator in 2014 after Art’s passing, the Testator told her that she had drafted a new will, which named the Defendant as a limited beneficiary (the “Alleged 2014 Will”). No additional evidence was adduced at trial to support this claim.

[43] When asked by counsel for the Plaintiff what her impression of the Testator’s mental state was when describing the Alleged 2014 Will, Ms. MacDonald stated, “in my view, she was competent. I don’t think there was anything wrong with her – I really don’t.”

The Defendant’s Alleged Disassociation From Her Family

[44] As stated above, both Mr. De Rubeis and Ms. Kaufmanis testified that the Testator attributed her respective beneficiary changes to an increasingly estranged relationship with the Defendant.

[45] The Defendant staunchly disagreed with the above characterizations of her relationship with the Testator. She acknowledged that she ran away from home at the age of 17, but successfully pointed out on cross-examination of the Plaintiff that he also ran away from home as a teenager. The Defendant testified that, following her teenage years, her and the Testator maintained a close relationship for nearly four decades. She claimed that they attended flea markets together on Sundays, went out for lunch, shared many holidays and birthdays together, and had a joint bank account. The Defendant also repeatedly emphasized that the Testator loved her grandchildren dearly.

[46] The Defendant testified that, in 2008, she began suffering from a medical condition that prevented her from driving. At the time, she was divorced and living in Dunnville with her youngest son, who was 13 years old. Given these circumstances, she testified that it became very difficult for her to travel to Hamilton to visit and assist her parents. She said that the Testator was aware of her illness and that the two continued to speak regularly by telephone until the Testator was placed in long-term care.

[47] In her testimony, the Defendant stated that she visited her father twice in long-term care before he passed away. Likewise, she testified that she visited the Testator in the hospital on the night of her fall in 2014, and one additional time in long-term care before the Testator’s death in 2016. Regarding the infrequency of her visits, the Defendant testified that she could not handle seeing the devastating impact that dementia had on her parents.

Issues

[48] On these facts, and as mentioned above, there are four issues to be determined.

1. Did the Testator have the capacity to execute the 2011 Will?

2. Did the Plaintiff unduly influence the Testator to execute the 2011 Will?

3. Did the Testator have knowledge of, and approve of, the contents of the 2011 Will?

4. Does the Alleged 2014 Will exist and thereby revoke the 2011 Will?

The Law

General Framework

[49] At para. 77 of Neuberger Estate v. York, 2016 ONCA 191, 129 O.R. (3d) 721, Gillese J.A. succinctly summarized the requirements to prove a will in the province of Ontario:

Proving a will in solemn form requires the propounder of a will to prove, in open court upon notice to all parties having a financial interest in the estate, that the will was duly executed, the testator had testamentary capacity and that the testator had knowledge and approval of the contents of the will [emphasis added].

[50] In order to prove due execution of a will, the propounder must demonstrate that the will was executed in accordance with ss. 3 and 4 of the Succession Law Reform Act, R.S.O. 1990, c. S.26 (“SLRA”), which provide as follows:

3. A will is valid only when it is in writing.

4. (1) Subject to sections 5 and 6, 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.

(2) Where witnesses are required by this section, no form of attestation is necessary.

[51] Once the preconditions of due execution set out under ss. 3 and 4 of the SLRA have been met, the propounder benefits from a presumption of knowledge and approval of the contents of the will, as well as testamentary capacity. Sopinka J. put it as follows at para. 26 of Vout v. Hay, [1995] 2 S.C.R. 876:

Upon proof that the will was duly executed with the requisite formalities, and 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.

[52] The presumption of both knowledge and approval, and testamentary capacity, is upended when a party challenging the validity of the will demonstrates “circumstances which raise a suspicion that the document propounded for probate does not express the mind and will of the testator”: see Re Bailey (1974), 4 O.R. (2d) 315 (C.A.) at 317–18, per Arnup J.A.

[53] At para. 22 of Vout, Sopinka J. noted that “[a]ny discussion of the role of suspicious circumstances must start with the statement of Baron Parke”, who, in Barry v. Butlin (1838), 12 E.R. 1089 (P.C.), at p. 1090, defined suspicious circumstances to mean as follows:

[A] circumstance that ought generally to excite the suspicion of the court, and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true will of the deceased.

[54] Importantly, Lambert J.A. noted in Clark v. Nash (1989), 61 D.L.R. (4th) 409 (B.C.C.A.), at p. 425, that suspicious circumstances “… are not circumstances that create a general miasma of suspicion that something unsavoury may have occurred , but rather circumstances which create a specific and focussed suspicion that the testator may not have known and approved of the contents of the will [emphasis added]. [6]

[55] The existence of suspicious circumstances does not impose a higher burden 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: see Vout at para. 24.

[56] At para. 25 of Vout, Sopinka J. identified three categories of suspicious circumstances, of which, the latter two are at issue in the present case:

1. suspicious circumstances surrounding the preparation of the will;

2. suspicious circumstances calling into question the testator’s capacity; and

3. suspicious circumstances tending to show that the testator’s free will was compromised by coercion or fraud (generally referred to as “undue influence”).

[57] Sopinka J. then explained at para. 27 of Vout how the presence of suspicious circumstances can rebut the presumptions enjoyed by the propounder of a duly executed will:

Where suspicious circumstances are present, then the presumption is spent and the propounder of the will reassumes the legal burden of proving knowledge and approval. In addition, if the suspicious circumstances relate to mental capacity, the propounder of the will reassumes the legal burden of establishing testamentary capacity.

Suspicious Circumstances: Undue Influence

[58] Importantly for the case at bar, Sopinka J. made an exception to the shifting burden of proof in instances of undue influence. At para. 28 of Vout, he held that 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 though 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 and approval and testamentary capacity. The burden of proof with respect and fraud and undue influence remains with those attacking the will [emphasis added].

[59] As such, in order to set aside a will on the ground of undue influence, the challenging party must establish, on the balance of probabilities, that the influence imposed by some other person on the deceased was so great and overpowering that the document reflects the will of the former and not that of the deceased. In such a case, the will does not represent the testamentary wishes of the testator and is no more effective than if the testator had simply delegated their will-making power to the other person: see Banton v. Banton (1998), 164 D.L.R. (4th) 176 (Ont. Ct. J. (Gen. Div.)), at p. 209, per Cullity J.

[60] At p. 209 of Banton, Cullity J. adopted the succinct test for undue influence set out by Sir James Hannen in Wingrove v. Wingrove (1885), 11 P.D. 81 (Eng. Prob. Ct.), at p. 82: “to be undue influence in the eye of the law there must be – to sum it up in a word – coercion [emphasis added].”

[61] A testator’s physical and mental condition may render them more susceptible to coercion. The question that the court must ask is whether the influencing party took advantage of the testator’s weakness and successfully imposed their will on the testator: see Banton at para. 65. It is not sufficient to simply prove that the testator was vulnerable to undue influence. The evidence must show that coercion was actually exerted on the testator to change their will: see Duschl v. Duschl Estate (2008), 39 E.T.R. (3d) 229 (Ont. Sup. Ct.), at para. 111, per Taliano J.

Suspicious Circumstances: Testamentary Capacity

[62] The Ontario Court of Appeal recently restated the test for testamentary capacity in Stekar v. Wilcox, 2017 ONCA 1010, 32 E.T.R. (4th) 199, at para. 14, as follows:

The test for testamentary capacity has been well-established since the Supreme Court of Canada, in Skinner v. Farquharson (1902), 32 S.C.R. 58 (S.C.C.), adopted the formulation of the test offered 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 a power [of testamentary capacity] 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 in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.

[63] It is clear from the jurisprudence that the Banks test to prove testamentary capacity is a high one and the onus falls on the propounder of the will: see e.g. Hall v. Bennett Estate (2003), 64 O.R. (3d) 191 (C.A.) at para. 15, per Charron J.A. (as she then was).

[64] The first and second criteria of the Banks test [7] require that the testator understand (1) the nature of the act of making a will and (2) the extent of their property. The Supreme Court of Canada held in Leger v. Poirier, [1944] S.C.R. 152, at pp. 161–62, that these criteria require more than the testator’s mere ability to provide “rational responses” to simple questions, or to repeat “a tutored formula of simple terms”. Writing for the majority, Rand J. held that a “sound and disposing mind” that can comprehend the act of making a will, the extent of one’s property, and those who might have a rightful claim upon the estate of the testator is required. In other words, as Charron J.A. put it more recently at para. 15 of Hall, “[t]he jurisprudence abounds with statements that it is not sufficient simply to show that a testator had the capacity to communicate his or her testamentary wishes. Those wishes must be shown to be the product of a sound and disposing mind”.

[65] The third criterion of the Banks test requires that the testator comprehend and appreciate the claims to which they ought to give effect. Boyd J. clarified in Murphy v. Lamphier (1914), 31 O.L.R. 287 (S.C. (H.C. Div.)), at p. 318, that this component requires not only that the testator knew who they were including in their will, but also that the testator was able to remember and appreciate who they were excluding , so as to exercise judgment with regard to why they were doing so: see also Hall at para. 17. When there is a change in the will-making pattern – particularly a marked departure from previous dispositions – the testator should show awareness that their new will revokes their previous will, recognise the differences between the old will and the new will, and be able to explain the rationale for the changes. [8] As Evans J.A. put it at para. 23 of Schwartz v. Schwartz, 10 D.L.R. (3d) 15 (Ont. C.A.), aff’d [1972] S.C.R. 150, “[w]henever there is a marked departure from a previously existing pattern in the disposition by a testator of his estate, one seeks to ascertain from the circumstances the reason for such change.”

[66] The fourth criterion requires, generally, that mental impairment does not “poison” the testator’s affections so as to bring about a disposition that would not have been made otherwise. Charron J.A. commented at para. 21 of Hall that assessing the mental health of an elderly testator is an often difficult – but critical – task for the solicitor:

The making of a will is an important activity and one that, not uncommonly, is engaged in by a person who is approaching the end of his or her life, whether it be by reason of illness or advanced age. It is also not uncommon that a person at that stage of life may suffer from some form of mental impairment, and that impairment may not be readily apparent to those who are not closely associated with the person. Cullity J. comments on this point in Scott v. Cousins (2001), 37 E.T.R. (2d) 113, as follows at paras. 71-73:

The profession has also been warned on numerous occasions that the fact that an elderly person suffers from a form of dementia, and has lost capacity, may not be immediately apparent to those who are not closely associated with her… The point is made succinctly in Williams, Mortimer and Sunnucks, Executors, Administrators and Probate (17th edition, 1993), at page 163:

The personality of old people is often well preserved and, at a casual interview, they may give every appearance of being capable of making a will although, in fact, they lack capacity. [Emphasis added.]

[67] Accordingly, at paras. 22–23 of Hall, Charron J.A. held the following regarding the duty of a solicitor to inquire into their client’s testamentary capacity:

The law is equally clear that a solicitor who undertakes to prepare a will has a duty to inquire into his or her client’s testamentary capacity. It is not sufficient for the lawyer to simply take down notes and instructions. He/she must use all means available to be satisfied that the Testator understands the nature and extent of his/her assets and that he/she has the capacity to fully understand what he/she is directing. [9] If there is any doubt in the solicitor’s mind, a note of the solicitors observations and conclusions should be retained in the file. [10]

[68] Charron J.A. then identified a list of common solicitors’ errors that have been either the subject of criticism by the courts or the basis of liability for professional negligence in the preparation of a will:

• the failure to obtain a mental status examination;
• the failure to interview the client in sufficient depth;
• the failure to properly record or maintain notes;
• the failure to ascertain the existence of suspicious circumstances;
• the failure to react properly to the existence of suspicious circumstances;
• the failure to provide proper interview conditions (e.g. the failure to exclude the presence of an interested party);
• the existence of an improper relationship between the solicitor and the client (e.g. preparing a will for a relative); and
• failing to take steps to test for capacity.

[69] It is in the light of the aforementioned principles that one must consider the evidence relating to a testator’s capacity and a solicitor’s assessment of their client: see Hall at para. 27. Furthermore, given that no expert evidence was adduced during the trial of the present case, it is worth repeating the recent remarks of Trotter J.A., who noted the following in Dujardin v. Dujardin, 2018 ONCA 597, 423 D.L.R. (4th) 731, at para. 33:

[T]he question of testamentary capacity “is a practical one that, so far as evidence based on observation is concerned, may be answered by laypersons of good sense as well as doctors [emphasis added].”

Revocation of Wills

[70] There are four statutorily prescribed methods of revoking a will in the province of Ontario:

1. revocation by marriage;

2. revocation by a subsequent valid will or codicil;

3. revocation by a duly executed and written declaration of an intention to revoke; and

4. revocation by destruction:

See s. 15 of the Succession Law Reform Act.

[71] At issue in the present case is revocation by an alleged subsequent will. This form of revocation is provided for under s. 15 (b) of the SLRA, which states the following:

15 A will or part of a will is revoked only by,

(b) another will made in accordance with the provisions of this Part…

[72] Subclause (b) requires that the subsequent will be duly executed in accordance with the provisions of ss. 3 and 4 of the SLRA.

[73] The legal burden of proof of revocation lies on the party alleging it. [11]

Analysis.

The Alleged 2014 Will

[74] Beginning in reverse order, I will first tackle the issue of the Alleged 2014 Will.

[75] The Defendant bears the legal burden of proving that the Testator revoked the 2011 Will by way of executing the Alleged 2014 Will. This requires that the Defendant prove, on the balance of probabilities, that the Alleged 2014 Will was both (a) in writing, pursuant to s. 3 of the SLRA; and (b) duly executed in accordance with s. 4 of the SLRA.

[76] The only evidence adduced at trial of the Alleged 2014 Will was the oral testimony of Ms. MacDonald. She claimed that, at sometime in 2014 following Art’s death, the Testator informed her that she had drafted a new will, under which the Defendant was named as a limited beneficiary. No corroborating evidence of any kind was proffered by the Defendant to bolster this claim. No document purporting to be the Alleged 2014 Will was presented to the court.

[77] Mr. De Rubeis – the Testator’s long time solicitor, and lawyer for both the Testator’s 1994 mirror will and 2011 Will – gave no evidence on the existence of a new will. He was not cross-examined on the issue. According to Mr. De Rubeis’s testimony, he only interacted with the Testator for two reasons in 2014: (1) Art’s death; and (2) to administer the estate of Ms. Caruthers.

[78] In my view, there is simply insufficient evidence to find that the Alleged 2014 Will exists, let alone was written, signed and witnessed in accordance with the SLRA. As such, I cannot find that the 2011 Will was revoked by the Alleged 2014 Will.

Proving the 2011 Will

[79] Returning to the 2011 Will, in my view, the evidence is clear that it was duly executed in accordance with ss. 3 and 4 of the SLRA. A copy of the 2011 Will was filed with the court. It bears the initials of the Testator and the two witnesses, Mr. De Rubeis and his secretary, Ms. McLean, on the bottom-right corner of each page. Their three signatures then appear at the bottom of the last page. Mr. De Rubeis identified these signatures for the court. The Testator’s signature appears the same as in her financial documents, as identified by Ms. Kaufmanis. Mr. De Rubeis provided testimony that (a) the Testator signed the 2011 Will at its end in the presence of himself and Ms. McLean as witnesses; and (b) that he and Ms. McLean subsequently signed the last page in the presence of the Testator.

[80] As such, I find that the 2011 Will was duly executed. The Plaintiff, as propounder of the 2011 Will, thus benefits from a presumption that the Testator (a) had knowledge and approval of the contents of the 2011 Will, and (b) had testamentary capacity. The burden now shifts to the Defendant to prove the existence of suspicious circumstances that call into question this presumption.

Suspicious Circumstances

[81] The Defendant advances two arguments regarding suspicious circumstances:

1. there are suspicious circumstances that call into question the Testator’s capacity to execute the 2011 Will; and

2. there are suspicious circumstances that show that the testator’s free will was compromised by the undue influence of the Plaintiff.

I will deal with these arguments, in turn, below.

Capacity

[82] As a starting point, the jurisprudence requires that the Defendant demonstrate, on the balance of probabilities, that suspicious circumstances show that the 2011 Will does not express the true mind and will of the Testator because, at the time of its execution, the Testator lacked capacity. If the Defendant is successful in demonstrating this, both the presumption in favour of knowledge and approval of the contents of 2011 Will, as well as testamentary capacity, will be displaced and return to the Plaintiff to prove on the balance of probabilities. [12]

[83] The Defendant argues that there are suspicious circumstances that call into question the Testator’s capacity because, following her coronary bypass surgery in early 2011, the Testator allegedly began to suffer from a post-operative cognitive disorder (“POCD”). According to the Defendant, an elderly person beginning to suffer from dementia who undergoes bypass surgery “on-pump” is highly susceptible to suffering POCD. The Defendant argues that the Testator was never supposed to go “off-pump” during her surgery. However, the Defendant submits that something changed, and the Testator went “off-pump” for 137 minutes. [13]

[84] The Defendant is a self-represented litigant. She did not call any expert evidence to help explain POCD to the court. By her own admission, she relied solely on internet searches to build her case.

[85] To provide some context to her argument, I take judicial notice of a recent decision of D’Arcy J. of the Tax Court of Canada. In Andre Lamy Medicine Professional Corporation v. The Queen, 2020 TCC 61, [2020] 6 C.T.C., the learned judge heard testimony from Dr. Andre Lamy, a cardiac surgeon and researcher at the Hamilton General Hospital, and Professor of the Faculty of Health Sciences at McMaster University. After finding “Dr. Lamy to be a very credible witness” [14] at para. 3, D’Arcy J. wrote the following at para. 17 of his decision regarding the on-pump/off-pump distinction:

With respect to the Coronary Project, [Dr. Lamy] testified that it related to bypass surgery. He referred to two techniques that are used when conducting bypass surgery. One is called a cardiopulmonary bypass, or the pump. This involves stopping the heart while the bypass is performed. The second technique is called off-pump. A pump is not used and the bypass is performed while the heart is beating. Dr. Lamy noted that there was much discussion in the medical community with respect to which technique is better. As a result, he decided that he would try to answer that question by starting the Coronary Project. He has been working on the project for ten years and it is not yet completed. He worked on this project during the 2013 and 2014 taxation years.

[86] With this in mind, I understand the Defendant’s argument to be as follows: in her view, the Testator was suffering from the early stages of dementia prior to her surgery and, by going off-pump during the surgery, began suffering from POCD, which, according to the Defendant, is sufficient to raise a suspicious circumstance that calls into question the Testator’s capacity.

[87] The Defendant has proffered evidence from the Testator’s medical records [15] in an attempt to demonstrate that (1) the testator was suffering from cognitive decline prior to her bypass surgery and (2) that this condition worsened due to her POCD. She then supplemented this evidence with oral testimony of witnesses (herself included) who were close to the Testator between 2010 and 2014.

[88] The medical evidence proffered by the Defendant was based upon excerpts from medical records found in exhibit 5 covering the pre-surgical and immediate post surgical period from September 24, 2010, to February 14, 2011. I have summarized the entries referred to in her evidence in the chart attached as Exhibit A to this judgment. The entries clearly show that the Testator was disoriented and confused in the period preceding and leading up to her by-pass surgery on January 17, 2011, and on the day following. After that entry, the other entries to which the Defendant led the court reflect some understandable weakness and anxiety, but no concerns were expressed by any of the professionally trained medical notetakers about her mental acuity or competence.

[89] The Defendant then testified as to some of the unusual behaviour that she noticed in the Testator following her surgery. According to the Defendant, the Testator

• was sleeping more than usual, and often awoken by phone calls from the Defendant;
• lost contact with old friends, Ms. MacDonald being the notable exception;
• lost her keys on several occasions and locked herself out of her car and of her house; and
• despite clear instructions to the contrary from the Defendant, continued to give money to the Defendant’s son, Tommy.

[90] I note here that Jeff also identified in his testimony some concerning changes in the Testator’s behaviour following her surgery. For example, he testified that the Testator, on several occasions, confused him for someone else and called him by the wrong name. This type of behaviour prompted his belief that the Testator should not be driving alone – a belief shared by his partner, Dallas.

[91] In my view, the Defendant has adduced insufficient evidence for me to find that there are suspicious circumstances that call into question the Testator’s capacity. There is simply not enough evidence in the Testator’s medical record for me to find that (a) she was suffering from the early stages of dementia or cognitive decline prior to her surgery, and that (b) by going off-pump during the surgery, she began suffering from POCD. On the contrary, the medical records indicate, in my view, a finding of capacity.

[92] There is no diagnosis of dementia prior to 2014 – a fact that the Defendant conceded on cross-examination. Furthermore, the Testator’s medical records from 2010–2011 indicate a normal state of cognitive health for the Testator. This is perhaps best evidenced at tab 35 of the Compendium-Joint Document Brief [16] where, in a hospital discharge statement dictated September 29, 2010, by Dr. Ryszard Mizera and sent to Dr. Belecki (The Testator’s family doctor), it says as follows:

CTC scan of head normal, no added concerns of patient’s cognitive function.

[93] Furthermore, between 2010 and 2011, the Testator’s medical records indicate that she gave her informed consent to several different doctors without concern or objection about her capacity to do so. For example, p. 651 of the Testator’s medical records indicate that, on January 16, 2011, the Testator consented to go off-pump for her bypass surgery:

I, Stewart, Audrey, hereby consent to the following… operation

coronary bypass grafting x2 LIMA [left internal mammary artery] off pump

to be performed upon Stewart, Audrey by Dr. Dyub…

I acknowledge that the Health Practitioner has explained the nature of the above treatment or procedure, its expected benefits, material risks and side-effects, alternative courses of action and the likely consequences of not having this treatment

I understand the information provided to me and the answers I received to my questions

I declare that I have read this form and understand it

[signed Audrey R Stewart above “Signature of Patient/Substitute Decision Maker)].

[94] While contemporaneous medical records do – as the Defendant correctly points out – indicate that the Testator was disoriented, confused, and agitated around this time, these symptoms never amounted to a finding of incapacity by a doctor that rendered the Testator incapable of making medical decisions for herself. I find that the Plaintiff’s testimony was credible when he said that it was not until 2015 that he first used his medical power of attorney to act on the Testator’s behalf. Even if I am wrong, the medical records suggest that there were no substitute decision makers for the Testator in 2011.

[95] In 2011, the Testator was also responsible for taking her own medication. Her medical records indicate that her doctors were not concerned with her ability to fill and follow their prescriptions, even when dosages and drug-types were subject to significant – and often potentially dangerous – changes. For example, the clinical notes of the Testator’s family doctor indicate that her blood thinner medication was adjusted on July 18, 2011, after the Testator advised her doctor of the presence of blood in her urine and stool. A colonoscopy was scheduled to investigate the source of the blood. [17] Page 51 of her medical records [18] shows that the procedure took place on September 8, 2011. Between these two dates, the Testator executed the 2011 Will. On cross-examination, the Defendant agreed with counsel for the Plaintiff that the Testator’s doctors must have been confident in the Testator’s capacity to adjust her medication in preparation of the colonoscopy – a procedure that can carry some significant risk for a patient on blood thinners.

[96] The clinical notes and records of the Testator’s family doctor, Barbara Bielecki, then indicate on September 11, 2011, that the Testator’s prescriptions changed following the colonoscopy. [19] The inescapable inference, once again, is that the Testator’s doctors did not doubt her capacity to take and understand her own medication – even when dosages and drug-types were subject to significant and numerous changes. And while the Defendant may have been correct in arguing that these medications contain side effects of confusion, there is nothing in the medical record that suggests that the Testator’s prescribed drugs would render her mentally incompetent or incapacitated.

[97] Even if the Defendant had been successful showing a suspicious circumstance that calls into question the Testator’s capacity, in my view, the Plaintiff would satisfy his high onus of proving, on the balance of probabilities, that the Testator had the requisite capacity to execute the 2011 Will, and had knowledge and approval of its contents.

[98] I have gleaned from the jurisprudence discussed above – particularly Banks and Hall, supra, – that the Plaintiff must show the following on the balance of probabilities to discharge his onus:

• that the Testator had a “sound and disposing mind” that could comprehend
  • the act of making a will,
  • the extent of her property and assets, and
  • those who might have a rightful claim upon her estate;
• that the Testator knew not only who she was including in the 2011 Will, but who she was excluding – and could explain such exclusions;
• that the Testator
  • was aware that the 2011 Will revoked her 1994 mirror will,
  • could recognize differences between the 2011 Will and the 1994 mirror will, and
  • could explain the rationale for such changes;
• that, in light of the above, the 2011 Will makes testamentary sense;
• that the Testator did not suffer from a mental impairment that poisoned her affections so as to bring about a disposition in the 2011 Will that would not have been made otherwise; and
• that the Testator’s solicitor, Mr. De Rubeis, satisfied his duty to inquire into the Testator’s testamentary capacity.

[99] In the analysis that follows, I will not repeat in much detail my findings based on the Testator’s medical records which are stated above, except to say that they apply equally in assisting the Plaintiff to discharge his burden of proof. In particular, they point to a finding that the Testator had a “sound and disposing mind” and did not suffer from a mental impairment that poisoned her affections so as to bring about a disposition in the 2011 Will that would not have been made otherwise.

The Testator Had a Sound and Disposing Mind that Could Comprehend the Act of Making a Will

[100] In my view, the Testator had a sound and disposing mind that could comprehend the act of making a will. In his testimony, Mr. De Rubeis stated that, in the Summer of 2011, the Testator sought him out for the sole purpose of updating her will and power of attorney. He described the Testator as being proud and knowledgeable, and noted that, once she made up her mind about something, she became rather inflexible. Ms. Kaufmanis, similarly, testified that the Testator was forthright, smart, and had a fortitude for handling affairs when Art was sick. Mr. De Rubeis was of the view that the Testator had thought it over and made up her mind about changing her 1994 mirror will. I am satisfied that she could comprehend the act of making will.

The Testator Had a Sound and Disposing Mind that Could Comprehend the Extent of Her Property and Assets

[101] I am likewise satisfied on a balance of probabilities that the Testator had a sound and disposing mind that could comprehend the extent of her property and assets. According to the testimony of Mr. De Rubeis, he received clear instructions from the Testator to exclude the Defendant as a beneficiary and “leave everything” to Art, and if he predeceased her, to leave everything to the Defendant. He specifically testified that he inquired into whether the Testator understood the nature and scope of her assets, and the consequences that changing her will would have on their disposal. Mr. De Rubeis had the Testator read a draft of the 2011 Will over slowly, and then reviewed it with her line-by-line afterwards. Mr. De Rubeis’s careful and probing solicitor’s work, coupled with the Testator’s fortitude for handling her own medical, financial, and legal affairs, in my view, satisfies that the Testator understood the nature and extent of her property and assets.

The Testator Had a Sound and Disposing Mind that Could Comprehend Those Who Might Have a Rightful Claim Upon Her Estate

[102] I am satisfied on a balance of probablities that the Testator had a sound and disposing mind that could comprehend those who might have a rightful claim upon her estate because she included her husband, Art, as the immediate beneficiary. On the evidence before me, there were no other rightful claimants or dependents other than the Defendant, by law, that she was excluding. I am satisfied that, if there were, Mr. De Rubeis would have discussed this with the Testator. While the Defendant may have a moral claim upon the Testator’s estate, in my view, she does not have a rightful legal claim.

The Testator Knew Not Only Who She Was Including in the 2011 Will, but Who She Was Excluding – and Could Explain Such Exclusions

[103] On the evidence of Mr. De Rubeis, I am satisfied on a balance of probabilities that the Testator knew that the two people she was including in the 2011 Will were Art and the Plaintiff. I am likewise satisfied that the Testator knew that she was excluding the Defendant (indeed, it was her stated purpose for changing her will), and thereby excluding the Defendant’s children. Although Mr. De Rubeis did not discuss the Defendant’s children with the Testator during their appointments, it is more than likely that the Testator understood that, by removing the Defendant as a beneficiary, she was, in effect, also disinheriting the Defendant’s children. The Testator’s fortitude and capacity to care for herself (and Art, prior to his move to long-term care) and look after her own affairs indicate to me that this elementary level of understanding was never in question in or around August 2011.

[104] The Testator’s decision to remove the Defendant as a beneficiary of the 2011 Will is also consistent with the Testator’s decision following Art’s death in 2014 to remove the Defendant as a beneficiary of her registered retirement income fund and tax-free savings account. The Testator provided the same explanation as to why she removed the Defendant as a beneficiary to both Mr. De Rubeis and Ms. Kaufmanis: the Testator’s increasingly estranged relationship with the Defendant. While the Defendant disputes the underlying truth of the Testator’s reason, it nonetheless appears consistently through out much of the evidentiary record. For example, the clinical notes and records of her family medical clinic indicate that, on November 17, 2010, the Testator advised her doctor that her relationship with the Defendant became “strained” during the Defendant’s teenage years. These records show that the Testator acknowledged having some contact with the Defendant, but only insofar as she “pops in once in a while for visits”. [20] Similarly, Ms. MacDonald testified that the Testator was of the view that the Defendant – unlike the Plaintiff – “could do nothing right”.

The 2011 Will Makes Testamentary Sense, etc.

[105] For the same reasons as discussed above, I am satisfied on a balance of probabilities that the Testator (a) was aware that the 2011 Will revoked her 1994 mirror will, (b) could recognize differences between the 2011 Will and her 1994 mirror will, and (c) could explain the rationale for such changes. I am also of the view that, in light of the Testator’s rationale for changing beneficiaries, the 2011 Will makes testamentary sense: it favours the Plaintiff over the Defendant – the former of which, the Testator’s medical record repeatedly indicates, was not estranged from the Testator in 2010 and 2011. The evidence is clear that, while the Testator was hospitalized during that time, the Plaintiff remained on-call and was repeatedly at the Testator’s bedside when she needed support or to be calmed down.

The Testator Did Not Suffer from a Mental Impairment that Poisoned Her Affections so as to Bring About a Disposition in the 2011 Will that Would Not Have Been Made Otherwise

[106] On the facts before the court, I am satisfied on a balance of probabilities that the Testator did not suffer from a mental impairment that impacted her testamentary dispositions. Here, I once again reiterate the findings of Dr. Mizera referred to in para. 92 above. Furthermore, as stated in detail above, the Testator gave her informed consent to numerous different doctors over the course of 2010 and 2011 without concern or objection expressed by any of her treating medical professionals about her capacity to do so. No medical decisions were made on her behalf by a substituted decision maker during this period. She was also responsible for taking her own medication. Her medical records indicate that her doctors were not concerned with her ability to fill and follow their prescriptions, even when dosages and drug-types were subject to significant – and often potentially dangerous – changes. She scheduled monthly blood tests and often drove herself thereto.

[107] In my view, the Testator’ medical autonomy is but one example of the significant degree of independence and personal agency that the testator maintained during the period between Art’s placement in long-term care in 2011 and her fall in late 2014. While the Testator did receive continued – and important – support from the Plaintiff, Jeff, and Dallas during this time, the fact that the Testator scheduled and attended her own appointments, made her own medical, financial, and legal decisions, and maintained social relationships, satisfies to me that her mind was not “poisoned” when she executed the 2011 Will.

[108] Additionally, evidence that the Testator’s house was well kept, that the Testator, herself, was appropriately dressed when called upon, and that the Testator continued driving on her own – at least to some extent – during this period, further suggests that the Testator was not suffering from a mental impairment that impacted the 2011 Will.

[109] Further yet, witnesses who had no direct stake in the outcome of this trial gave reliable testimony regarding the Testator’s mental competency. Ms. Kaufmanis and Mr. DeRubeis both had professional dealings with her in 2014 and had no concern about her mental competency.

[110] Ms. MacDonald provided similar testimony regarding the Testator’s mental competency during her cross-examination. When asked by counsel for the Plaintiff what her impression of the Testator’s mental state was, Ms. MacDonald stated, “in my view, she was competent. I don’t think there was anything wrong with her – I really don’t.”

[111] While the Defendant is correct to point out that the Testator was 82 years old, and suffering from multiple medical conditions and on multiple prescriptions when she executed the 2011 Will, in my view, for the reasons described above, the evidence overwhelmingly points to a finding of testamentary capacity, nonetheless.

Mr. De Rubeis Satisfied His Solicitor’s Duty to Inquire Into the Testator’s Capacity

[112] The final factor that points to a finding of testamentary capacity is that Mr. De Rubeis satisfied his solicitor’s duty to inquire into the Testator’s capacity before executing the 2011 Will. Mr. De Rubeis was the Stewarts’ long-time solicitor. He was called to the bar in 1969 and described the Stewarts as two of his first clients.

[113] Mr. De Rubeis’s evidence indicates that he was keenly aware, as an experienced lawyer, that the Testator, as an elderly woman, might lack capacity – even if she outwardly appeared capable of making a will. He testified that he particularly turned his mind to testamentary capacity when he was instructed to make, what he thought was, a marked departure from the Testator’s 1994 mirror will. He said that red flags went off in his mind, which caused him to probe the Testator. Mr. De Rubeis testified that he inquired into whether the Testator understood the nature and scope of her assets, and the consequences that changing her will would have on their disposal. He further testified that he inquired into why the Testator was making the beneficiary change. Following a half-hour appointment, Mr. De Rubeis was satisfied that the Testator’s decision to change her will was both cogent and voluntary. His solicitor’s notes from the meeting with the Testator reflect this finding.

[114] For all of these reasons, I am satisfied that the Plaintiff would have met his onus of proving, on the balance of probabilities, that the Testator (a) had the requisite capacity to execute the 2011 Will, and (b) had knowledge and approval of the contents of the 2011 Will.

Undue Influence

[115] The Defendant also argues that there are suspicious circumstances which show that the testator’s free will was compromised by the undue influence of the Plaintiff.

[116] The Defendant bears the burden of proving, on the balance of probabilities, that the influence imposed by the Plaintiff on the Testator was so great and overpowering that it amounted to coercion. The Defendant must show that the 2011 Will represents the wishes of the Plaintiff and not of the Testator.

[117] The Defendant argues that the Plaintiff knowingly took advantage of the Testator’s vulnerability. She submits that the Testator had undergone a major surgery only a few months before the execution of the 2011 Will, and that the Testator was elderly, heavily medicated, and suffering from several medical conditions.

[118] While it is true that the Testator faced significant health challenges in 2011, the law is clear that it is not enough to simply show that the testator was suffering from mental or physical impairment. Rather, the question is whether the influencing party successfully imposed their will on the testator as a result the testator’s weakness. In my view, the Defendant has not provided sufficient evidence to show that the Plaintiff successfully imposed his will on the Testator.

[119] There is no denying that the Plaintiff, as the sole remaining beneficiary, stands to gain if the 2011 Will is admitted for probate. This mere fact, however, does not demonstrate coercion in and of itself.

[120] The fact that the Plaintiff drove the Testator to Mr. De Rubeis’s office to draft and execute the 2011 Will is, likewise, not determinative. It was not unusual for the Testator to ask for rides when she felt uncomfortable driving. Furthermore, Mr. De Rubeis testified that he received instructions from the Testator alone in a private meeting space. He did the same during the follow up appointment, at which the 2011 Will was signed. The Plaintiff did not participate in either meeting. He remained in the waiting room.

[121] The evidence of Mr. De Rubeis suggests that the Plaintiff did not coerce the Testator. It is worth repeating, once again, that Mr. De Rubeis is a very experienced estates lawyer. He testified that, given the marked departure from the Testator’s previous will, he specifically turned his mind to whether the change in beneficiaries might have been the product of undue influence. He noted in his testimony that he considered whether there was an imbalance of power between the Plaintiff and the Testator, which the Plaintiff was attempting to exploit. Following his probe into the matter, Mr. De Rubeis was satisfied, by the end of the meeting, that the Testator’s decision to change her will was voluntary.

[122] Mr. De Rubeis’s evidence is consistent with the testimony of Ms. Kaufmanis. She similarly testified that she specifically turned her mind toward whether the Plaintiff had unduly influenced the Testator to name him as the sole beneficiary of her registered retirement income fund and tax-free savings account. Like Mr. De Rubeis, following a lengthy meeting in which she probed the Testator, Ms. Kaufmanis was ultimately satisfied that the Testator’s decision to name the Plaintiff as the sole beneficiary was her decision alone.

[123] In my view, the Plaintiff’s financial relationship with the Testator captures the essence of the type of influence (or lack thereof) that the Plaintiff had over the Testator generally: he was there for support when called upon, but otherwise remained at arm’s length and respected the Testator’s autonomy. Indeed, this is precisely the type of influence that the Plaintiff had over the Testator’s medical affairs: he sometimes drove her to appointments and was at her side when she needed him, but he had no control over her medication, nor did he act as a substituted decision maker on her behalf until 2015.

[124] For these reasons, I cannot find that the Plaintiff coerced the Testator and imposed his will on her. There is simply insufficient evidence on the record to make such a finding. As I have described, the evidence before the court suggests, to the contrary, that the Plaintiff respected the Testator’s autonomy. As such, it is my view that the contents of the 2011 Will express the Testator’s testamentary wishes – and not those of the Plaintiff per se. I find that the Defendant has not satisfied the legal onus required of her to demonstrate that the 2011 was the product of undue influence.

Some Brief Comments on Moral Obligations

[125] Before concluding, I think it is worth briefly addressing one final concern of the Defendant. Although she never formally pleaded that she had a moral claim to the Testator’s estate, she made several comments over the course of the trial regarding Art’s wishes, and the disinheritance of her children (the Testator’s grandchildren).

[126] In light of these comments, I simply note that the Ontario Court of Appeal has repeatedly reaffirmed the importance of testamentary freedom in Ontario. Cronk J.A. put it as follows:

A testator’s freedom to distribute her property as she chooses is a deeply entrenched common law principle. As this court emphasized in Canada Trust Co. v. Ontario (Human Rights Commission) (1990), 74 O.R. (2d) 481, at p. 495, citing Blathwayt & Lord Cawley, [1976] A.C. 397, [1975] 3 All E.R. 625 (H.L.):

The freedom of an owner of property to dispose of his or her property as he or she chooses is an important social interest that has long been recognized in our society and is firmly rooted in our law.

The Supreme Court has also recognized the importance of testamentary autonomy, holding that it should not be interfered with lightly, but only in so far as the law requires: Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807, at p. 824.

The freedom to dispose of her property as a testator wishes has a simple but significant effect on the law of wills and estates: no one, including the spouse or children of a testator, is entitled to receive anything under a testator’s will, subject to legislation that imposes obligations on the testator. [Emphasis added.] [21]

[127] Since I have found that the 2011 Will was duly executed, that the Testator had testamentary capacity, that the Testator was not unduly influenced, and that the Testator had knowledge and approval of the contents of the 2011 Will, I am bound by law to give effect to the Testator’s testamentary freedom.

Conclusion

[128] For the reasons given, I find as follows:

1. the Testator had the requisite testamentary capacity to execute the 2011 Will;

2. the Plaintiff did not unduly influence the Testator;

3. the Testator had knowledge and approval of the contents of the 2011 Will; and

4. the Testator did not revoke the 2011 Will by executing a new will in 2014.

[129] Accordingly, I grant the following orders:

1. an order discharging the Defendant’s objection to the 2011 Will; and

2. an order declaring that the 2011 Will is both

a) valid, and

b) constitutes the Testator’s last will and testament.

[130] In the circumstances, it is ordered that each party shall bear his/her own costs.

[131] This judgment may be issued and entered without approval of the defendant.

“Signed Electronically”

Turnbull J.

Released: March 31, 2021.

SCHEDULE “A” TO JUDGMENT

EXHIBIT5 PAGE NUMBER

DATE IN RECORD

TYPE OF DOCUMENT

EVIDENCE

p. 339

24 September 2010

Interdisciplinary Patient Care Notes

• At 20:00, the Testator was “wandering in hall” and “escorted back to bed”.
• At 20:30, the Testator was “shouting incoherently”.

p. 340

25 September 2010

Interdisciplinary Patient Care Notes

• At 09:30, the Testator was “very confused”. She thought “she is @ her house in her kitchen. Refuses Breakfast… Son [the Plaintiff] in @ bedside”

p. 341

23 September 2010

Interdisciplinary Patient Care Notes

• At 03:45, the Testator “became slightly confused upon return from bathroom”, “cut IV tubing” and “pulled off” her heart monitor. She was subsequently “redirected to bed”.

p. 342

24 September 2010

Interdisciplinary Patient Care Notes

• At 07:45, the Testator was “found outside of department agitated stating she [was] up looking for her blouse”. She was subsequently “escorted back to bed.”
• Testator “answers questions appropriately”. She “stat[ed] she is concerned because her son is looking after her husband and she wants to go home”.
• Testator complained of “dizziness @ present” but “settled” once she was told “she had to stay & see the doctor first”

p. 351

25 September 2010

• Testator “confused, left hospital, brought back by security” [time unclear].

p. 352

Date unclear. Either 24 or 25 September 2010

• Physician noted that the Plaintiff “does not want me restrain [the Testator] but to be called”

p. 514

8 January 2011

Interdisciplinary Patient Care Notes

• Testator “up to BR [bathroom], confused of date on arrival, but easily redirected.”

p. 516

10 January 2011

Interdisciplinary Patient Care Notes

• At 03:00, Testator “agitated” and “stated “needs to leave to look after husband””
• At 01:00, Testator “attempting to leave ward. Yelling at staff.”
• Plaintiff was called. Testator “spoke to son & hung up phone on son.”
• “Security up to see [the Testator] attempting to calm”.
• Plaintiff came “in to see” the Testator, who “agreed to stay as long as son stayed as well.”

p. 527

Date unclear. Either 9 or 10 January, 2011

• At 02:45, the Testator was “very agitated, disoriented, trying to leave. Very worried about her husband who has Alzheimer’s. She was unclear where she was and why she was here.
• The Plaintiff “came in” after “3 security guards were called as [the Testator] was trying to leave.”
• The Testator “seem[ed] to calm down after speaking to son…he will stay with her tonight.”

p. 598

Date unclear, sometime on or after 8 January 2011

Hamilton health Sciences Heart Investigation Unit Patient Care Flowsheet: Patient History

• The Testator “is the caregiver to her husband (who has Alzheimer’s). She “had two episodes of disorientation (code white) demanding to leave hospital & go home. In these instances, [the Plaintiff] was able to talk her down.”

p. 668

16 January 2011

Discharge Risk Screening Tool

• The following boxes were checked to indicate applicable criteria: “Elderly (> 70); “Frail”; “Care Giver Problems”; “Cognitive Impairment” with “? confused” written in beside by hand; and “Taking multiple medications”.

p. 699

16 January 2011

Cardiac and Vascular Flowsheet (notes)

• At 03:15, the Testator was “confused and becoming agitated. Code white was called as [Testator] leaving the building.” She “ret’d to floor”
• The Plaintiff was “called + came in to sit with [The Testator]”, who is “calm @ this point + resting in bed”.

p. 701

16 January 2011

Cardiac and Vascular Flowsheet (notes)

• At 10:40, “[the Plaintiff] was called when [the Testator was] upset and confused. [The Plaintiff] will be in to visit. Aware [The Testator] saying she not want surgery.”
• “Dr. Dyub called – aware of periods of confusion. Will be in to see [the Testator] today.”

p. 814

16 January 2011

Nursing Assessment of personal, Interpersonal, and Social Systems, Part 8: Neurological

• The Testator was “confused to place/time on and off”.

The post-surgery medical evidence proffered by the Defendant is as follows:

p. 635

18 January 2011

Physiotherapy Surgical Respiratory Assessment Post-Op

• Testator “a bit confused” regarding physiotherapy “instructions” on the day following her coronary bypass surgery

p. 667

26 January 2011

Hamilton Health Sciences Cardiac Division Surgery Division 5 South Discharge Summary

• “Confusion post op – resolved”

p. 879

18 January 2011

Interdisciplinary Patient Care notes

• At 12:10, Testator described as “emotional today when discussing level of care & burnout”; “experiencing some shock that she required [surgery]”
• Testator also described as “primary caregiver for spouse w/ Alzheimer’s/dementia” who “requires 24/7 care”. Testator and Plaintiff “have been waiting for LTC [long-term care] for 2 months”. Testator “says she knows she can’t manage husband any longer” and the Plaintiff “told her [that her] husband will be somewhere else when she returns home.”

p. 880

24 January 2011

Interdisciplinary Patient Care notes (re: discharge)

• The Testator “shared that her son Ron [the Plaintiff] has been working hard to arrange things while she is in hospital.” She “says that Ron has set up some type of respite and between that, Ron, [the Testator’s] grandson and grandson’s wife.”
• The Testator “said family can drive her to appts and help with cleaning”. She “said she always grocery shops with a friend who can do the lifting and driving.”

p. 40

14 February 2011

Stonechurch Family Health Centre Documentary for the Testator

• The Testator “feels very shaky and weak for past few days”
• The Testator “feeling very overwhelmed and emotional since surgery, especially since husband has dementia and not well at home.”

[1] The 2011 Will was entered as exhibit 1 and is found in exhibit ID 1, pp. 1–6.

[2] Exhibit ID 1, tab 2, pp. 7–12.

[3] Exhibit 3.

[4] Exhibit ID 1, tab 4, p. 21.

[5] Exhibit ID 1, tab 4, p. 22, exhibit 4.

[6] This passage was adopted by the Ontario Court of Justice (General Division) in Re McArt Estate, 1992 CarswellOnt 2541 (Ont. Ct. J. (Gen. Div.)), at para. 33, per Hockin J. It was also recently adopted by the Nova Scotia Court of Appeal in Wittenberg v. Wittenberg Estate, 2015 NSCA 79, 364 N.S.R. (2d) 176, at para. 36, per Bryson J.A.

[7] For a helpful discussion of the current state of the Banks test, see Kenneth I. Shulman, Susan G. Himel and Ian M. Hull, “Banks v Goodfellow (1870): Time to Update the Test for Testamentary Capacity” (2017) 95:1 Canadian Bar Review 251 at 255 [Hull, “Banks v Goodfellow”].

[8] See Hull, “Banks v Goodfellow”, at 258; Stekar at paras. 14–16.

[9] Murphy, supra, at pp. 318-319:

[10] Maw v. Dickey (1974), 6 O.R. (2d) 146 (Surr. Ct.), at pages 158-9; Eady v. Waring (1974), 2 O.R. (2d) 627 (Ont. C.A.), at page 635; Murphy v. Lamphier (1914), 31 O.L.R. 287 (H.C.), at pages 318-21.

[11] Ian M. Hull & Suzana Popovic-Montag, Macdonell, Sheard and Hull on Probate Practice, 5th ed. (Toronto: Thomson Reuters, 2016), at p. 147.

[12] Stekar v. Wilcox, 2017 ONCA 1010, 32 E.T.R. (4th) 199, at paras. 6–8.

[13] See e.g. pp. 651 and 816 of the Testator’s medical record, exhibit 5.

[14] In the context of the tax dispute at issue, mind you.

[15] Exhibit 5, Joint Compendium of Documents.

[16] Exhibit ID 1.

[17] Compendium-Joint Document Brief, tab 8, page 49.

[18] Compendium-Joint Documents Brief, tab 8, page 51.

[19] Compendium-Joint Document Brief, tab 8, page 51.

[20] Compendium-Joint Document Brief, tab 5, page 35.

[21] See Spence v. BMO Trust Company, 2016 ONCA 196, 129 O.R. (3d) 561, at paras. 30–32, per Cronk J.A.