ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE ESTATE OF Ronald Wayne Young, deceased
BETWEEN:
RONALD SHAWN YOUNG
Applicant
– and –
KERI PRYCHITKO, AMBER MARIE YOUNG, DEVIN RONALD YOUNG, PATTI MACKINNON, MALLORY KERI LYN PRYCHITKO AND JAMES JONATHAN PRYCHITKO, by their litigation guardian THE CHILDREN’S LAWYER
Respondents
Ian Wright, for the Applicant
Howard Wolch, for the Respondents
HEARD: February 22, 2021
REASONS FOR DECISION
GEORGE J.
1On September 2, 2020 the deceased, Ronald Wayne Young, executed a Will (“2020 Will”) that appointed the Applicant Ronald Shawn Young (“Shawn”) as his Estate Trustee. This replaced the deceased’s Will executed on July 4, 2016 (“2016 Will”). In the second, he left his home to Shawn; $25,000.00 to each of his four grandchildren; $50,000.00 to his daughter, and Respondent, Keri Prychitko (“Keri”); automobiles to one of his friends; and the residue of his estate to Shawn. In the first, the deceased directed that title to his home be transferred to Shawn and Keri as joint tenants; that his grandchildren each receive $10,000.00; and that the residue be left to Shawn.
2The Respondents, Mallory Prychitko and James Prychitko, are minors. The Office of the Children’s Lawyer (“OCL”) has filed a Notice of Appearance. No other Respondent has.
3I am told that the estate is valued at approximately $500,000.00.
4On October 14, 2020 Keri filed a Notice of Objection to the September 2020 Will. She alleges that the deceased lacked capacity and was subject to undue influence.
5The Applicant seeks an order for directions and his appointment as Estate Trustee.
6Also before me is the Respondent’s motion which seeks directions; a determination of the issues to be tried in this proceeding, including the validity of both of the deceased’s Wills; whether the deceased had testamentary capacity when he made his Wills; whether the testator was subject to undue influence in executing his Wills; and whether the Wills were procured under suspicious circumstances.
7On January 21, 2021 counsel for the parties appeared before Leach J. I have reviewed his endorsement from that date, which I summarize as follows:
In advance of the scheduled hearing he was provided with a confirmation that indicated the parties had “agreed to an Order for Directions except for certain matters, (i.e. the scheduling of a special appointment motion and other issues relating to the appointment of an estate trustee during litigation)”. It further indicated that the presiding judge “need not review any of the materials filed”.
It quickly became apparent to Leach J. that there was a misunderstanding between counsel, and that this matter would need to proceed as a contested motion.
While counsel for the OCL attended, they were merely maintaining a watching brief. As such, no filing obligations or deadlines were imposed on it.
Leach J. scheduled today’s hearing. Two hours were set aside.
8The deceased passed on September 22, 2020. His wife predeceased him passing in March 2015. He has two children – Shawn and Keri. As indicated, the estate has an approximate probate value of $500,000.00. The 2020 Will appointed Shawn as executor and trustee. The 2016 Will also appointed Shawn executor and trustee.
9I have been presented with two competing plans for how to move forward. Shawn is of the view that, at least to this point, Keri has failed to meet the evidentiary threshold to require the deceased’s testamentary documents be proven. He asks that I direct a process that would not yet involve the production of the deceased’s medical, financial or legal records.
10Keri alleges that the deceased was subject to undue influence and lacked testamentary capacity. Her proposed order for directions would include the production of the deceased’s solicitor and client records, financial records, banking records, tax returns, and medical records, and allow for the examination of non-parties.
11In support of his position, Shawn deposes, and relies upon, the following:
That, before his passing, he spoke to the deceased at least once a week;
until the time of his death, the deceased managed his own property and finances including paying his taxes, bills, and living expenses;
until the time of his death, the deceased maintained his home, and drove himself to wherever he needed to go;
the deceased did not rely upon anyone to assist him with his daily activities;
until his death, the deceased made all of his personal care decisions;
he was never advised by the deceased, or by anyone else, that the deceased was suffering from or had been diagnosed with a psychiatric illness; and
he did not know, until after the deceased had executed it, that there was a 2020 Will, and did not know its terms until after the deceased had passed.
12Shawn takes the position that to proceed as Keri suggests would be a “massive waste of time and expense” and would be “disproportionate to both the size of the estate and the issues in this proceeding”.
13In support of her position, Keri deposes, and relies upon, the following:
The deceased was an “inveterate alcoholic” his entire adult life which led to an assortment of health issues, including those of a psychiatric/psychological nature, which undoubtedly impaired his judgment and which, at the very least, requires further exploration;
the deceased was prescribed, and used, Valium which he ingested while consuming alcohol;
the deceased executed his 2020 Will only three weeks before his death, when he must have been incapacitated by his alcoholism and related problems;
while in the hospital, and shortly before he passed, Shawn put the deceased on the phone to speak to Keri, at which point it became apparent he did not know who Keri was or who he was speaking to;
the deceased’s home was beginning to look “run down”.
in the years preceding his death he had lost a lot of weight and was not eating;
in 2019 the deceased blacked out and collapsed which led to an admission into hospital where he remained for several days; and
the deceased had promised her that he would be “splitting things 50/50”.
14To the extent much turns on this (and I am not convinced much does given that it is clear Keri and the deceased, at the very least, had little to do with each other over the course of the past five years), I make the following observation. Keri, at one point, seemed to suggest that she had not communicated with the deceased since 2016; at another she seemed to suggest that, while she had not seen him for a long while, in 2020 she had in fact been communicating with him. This is not entirely clear, but, as I said, I don’t think much turns on it. What I do know is that, at para. 23 of her affidavit sworn January 7, 2021, she deposes that:
The last conversation I had with my Dad in 2016, he could not remember our previous argument. He used his drinking as an excuse and told me, “You know what it is like when I drink”. Which was all the time. If he could not control himself in my home while he was drinking, he was not welcome when drinking. His answer to me, in between a lot of profanity, was that he was not going to apologize, and that I was the one who should be apologizing to him.
15I acknowledge that being their “last conversation in 2016” could mean a few different things. I raise it to highlight the obvious point which is, on either account – meaning, irrespective of whether I am reading the January 7th affidavit correctly and they hadn’t been speaking, or they simply had not seen each other since 2016 but were otherwise communicating in the meanwhile - how could Keri possibly weigh in and provide any meaningful or helpful information in respect of her father’s capacity? This is a rhetorical question, but a significant issue nonetheless, as in an estate matter there is a point at which the court can determine that it is unnecessary to move forward with an expansive discovery process when it is disproportionate to the issues raised and size of the estate. I will return to Keri’s evidence in a moment.
16Rule 75.01 of the Rules of Civil Procedure govern contentious estate proceedings. It provides that:
75.01 An estate trustee or any person appearing to have a financial interest in an estate may make an application under rule 75.06 to have a testamentary instrument that is being put forward as the last will of the deceased proved in such manner as the court directs.
17This rule empowers a trustee, or anyone ‘appearing’ to have a financial interest in an estate to ask that the Will proved “in such manner as the court directs”. Rule 75.06 provides that:
75.06(1) Any person who appears to have a financial interest in an estate may apply for directions, or move for directions in another proceeding under this Rule, as to the procedure for bringing any matter before the court.
(3) On an application or motion for directions, the court may direct,
(a) the issues to be decided;
(b) who are parties, who is plaintiff and defendant and who is submitting rights to the court;
(c) who shall be served with the order for directions, and the method and times of service;
(d) procedures for bringing the matter before the court in a summary fashion, where appropriate;
(e) that the plaintiff file and serve a statement of claim;
(f) that an estate trustee be appointed during litigation, and file such security as the court directs; and
(g) such other procedures as are just.
18It is common ground that an evidentiary threshold must be met before a court will grant an Interested Person’s request, and that Keri is an Interested Person. That is, it is agreed that an Interested Person is not entitled, as of right, to have the will proved in solemn form. Put another way, just because an Interested Person can ask for proof does not necessarily mean the court will compel it. The dispute in our instance lies in how to interpret, and apply, the Court of Appeal’s comments in Neuberger Estate v. York, 2016 ONCA 191 where, at para. 88, the court writes that:
- My second reason for rejecting the notion that, pre-probate, an Interested Person has a right to require proof in solemn is this. In my view, an Interested Person must meet some minimal evidentiary threshold before a court will accede to a request that a testamentary instrument be proved. In the absence of some minimal evidentiary threshold, estates would necessarily be exposed to needless expense and litigation. In the case of small estates, this could conceivably deplete the estate. Furthermore, it would be unfair to require an estate trustee to defend a testamentary instrument simply because a disgruntled relative or other potential beneficiary makes a request for proof in solemn form.
19Keri argues that she has met the threshold and that this is a determination I can now make. She submits that she has legitimate concerns about the impact of the deceased’s alcoholism on his capacity. She says that the deceased was vulnerable to being taken advantage of by Shawn and, given what she says is Shawn’s propensity for controlling and abusive behaviour, this is likely what happened here. There is, at the very least, grounds to explore this further. Her counsel made the point that the Neuberger court’s use of the word ‘minimal’, as opposed to ‘minimum’, is instructive in that, while minimum does mean a fixed, defined degree of proof in absolute terms, ‘minimal’ is much more flexible in that it does not define with any specificity what degree of proof would suffice and would depend on the circumstances of each case. Regardless, he argues that in either case Keri has met the onus as she has pointed to evidence which, if true, could operate to invalidate the deceased’s Wills.
20Shawn argues that Keri has not met the requisite threshold. He submits that she relies almost exclusively on hearsay and what he calls double hearsay evidence. In his view, the sum total of Keri’s evidence is that the deceased was an alcoholic who had psychological problems, without any evidence about what those psychological ailments might be.
21Counsel each cited and relied upon several authorities. Foremost amongst those are the aforementioned Court of Appeal decision in Neuberger, and the Superior Court decision of Seepa v. Seepa, 2017 ONSC 5368.
22Returning to Neuberger, and to provide some clarity on the scope of what a court can do, consider paras. 86, 87, 89 and 91:
Rule 75.06(3) is permissive. It says that the court “may” direct certain things. It does not say that the court “must” or “shall” grant the application or motion.
Thus, in my view, when rules 75.01 and 75.06 are read together – as rule 75.01 indicates must be done – the court has a discretion whether to order that a testamentary instrument be proved, as well as a discretion over the manner in which the instrument is proved.
Based on the above analysis, in my view, an applicant or moving party under rule 75.06 must adduce, or point to, some evidence which, if accepted, would call into question the validity of the testamentary instrument that is being propounded. If the applicant, or moving party, fails in that regard or if the propounder of the testamentary instrument successfully answers the challenge, then the application or motion should be dismissed. If, on the other hand, the applicant or moving party adduces or points to evidence that calls into question the validity of the testamentary instrument which the propounder does not successfully answer, the court would generally order that the testamentary instrument be proved. In determining the manner in which the instrument be proved, the court would have recourse to the powers under rule 75.06(3).
[T]his approach is consistent with the jurisprudence on rule 75. To date, the courts have not approached challenges to the validity of a will on the basis that an Interested Person has an absolute right to proof in solemn form. Instead, when faced with a request for proof in solemn form prior to the issuance of a certificate of appointment of estate trustee, they have considered the evidentiary basis underlying the request.
23The court goes on to cite two examples that might provide us some guidance. First, in Smith Estate v. Rotstein, 2010 ONSC 2117, a testator’s daughter alleged a lack of knowledge and undue influence. In the result, Brown J. granted summary judgment finding that there was no evidentiary foundation for the daughter’s objection, which was later affirmed by the Court of Appeal, with leave to the Supreme Court being refused. Of note, the Court of Appeal commented that the daughter/objector had offered not “a scintilla of evidence that the [challenged Will and codicils] are invalid”; Smith Estate v. Rotstein, 2011 ONCA 491.
24Second, in Chappus Estate (Re), 2009 ONCA 279 – which involved a challenge to the testator’s Will on the basis of undue influence – the court granted summary judgment (which was upheld on appeal). On the appeal Sharpe J.A. observed that the rules contemplate the possibility of summary disposition in contentious estate matters concluding that, in that instance, the Wills’ propounder had adduced a record of evidence demonstrating that they had in fact been properly executed and that the testator was of sound mind. At paras. 8 through 10 the court notes that the challenger had not presented facts to dispute those tendered in support of capacity and that there was “no evidence of suspicious circumstances”.
25The long and short of it is, an Interested Person is not entitled, as of right, to proof in solemn form. To any suggestion that the court, at this stage, does not have the authority to summarily dismiss a challenge I rely upon para. 98 of Neuberger where the court writes that: “…if and when [Edie] proceeds with her personal application or Adam proceeds with his motion for directions, it will be for the court hearing the matter to decide whether to order that the 2010 Wills be proved and, if so, in accordance with rule 75.06(3), to direct the manner in which they are to be proved”. I raise this because, while not explicit, one of Keri’s later affidavits seems to imply that Shawn is improperly attempting to turn this motion for directions into a summary judgment motion. I disagree. I can, now, assess the sufficiency of the evidence and determine how best to move this matter forward.
26Consider also Myers J.’s opening remarks in Seepa:
In the estates court in Toronto motions for directions are routinely brought on consent in Will challenges. The fact pattern in these cases is almost the same. The applicant has been cut out of a Will or has been gifted less than he or she believes was due. Of course, the beneficiary who obtains “more” is usually the one who cared for, or at least spent comparatively more time with the deceased. This lets the disgruntled applicant allege, virtually on that basis alone, that the caretaker beneficiary exercised undue influence to induce the deceased to make an unfair distribution of the estate.
The standard form orders for directions routinely granted on consent in these cases consign the parties to lengthy, intrusive, expensive documentary collection and investigation proceedings that can last for the better part of a year or more. The orders are all or nothing. There are few orders that seem to be tailored to the needs of the individual case. Ongoing case management is generally not provided for.
One wonders whether, in the absence of evidence supporting the causes of action and a need for such extensive processes, there is good reason to subject not just the parties but all of the beneficiaries in these cases to the cost, delay, and distress of lengthy proceedings. The disputes delay distribution of bequests to all of the beneficiaries while a disgruntled relative conducts a fishing expedition and often a deep dive through the deceased’s privileged legal files and most private, personal medical records.
Is it time for a culture shift?
27These comments were made in the context of a consent request for directions which was initially considered in chambers, with Myers J. thereafter requiring full oral argument. And while, after hearing argument on the merits, Myers J. did grant the order requested he provides some helpful guidance, expressly holding that “there must be some evidentiary basis to meet an applicable legal test”; see para. 5 in Seepa.
28He speaks to estate matters being more inquisitorial than adversarial, and how courts might approach the sufficiency of the evidentiary record and how one might meet the minimum threshold and/or answer it. On that point Myers J. concludes, at para. 39, that “…discretionary decisions are generally not certain of outcome by definition. In my view, the court ought to measure the evidence adduced by the applicant challenger against the evidence answered by the proponent of the Will and assess what, if any, processes are required to resolve any conflicts that the court cannot fairly resolve on the record before it. The court will be guided in making directions, as always, by the primary dictate to fashion a process that provides a fair and just resolution of the civil dispute. A fair and just resolution process is one that is developed to meet the goals of efficiency, affordability, and proportionality that underpin all civil cases as directed by the Supreme Court of Canada in Hryniak.”
29I agree. The issue is whether the court should exercise its discretion and require proof in solemn form and, if so, how that should be done.
30Keri argues that, insofar as privacy is concerned, Shawn has shown little interest and has, in fact, opened the door himself by filing an affidavit from the deceased’s lawyer, Deryck Walden. She puts it this way at para. 54 of her Factum:
- That is clearly not an issue for Shawn in this matter as he has delivered, albeit belatedly, an affidavit from his third cousin, Deryck Walden, who acted as the lawyer with respect to the 2020 Will and whose father of the same firm acted with respect to the 2016 will. In this affidavit, much information and documentation is provided that is clearly privileged and clearly constitutes waiver of any claim for solicitor client privilege.
31On this point, her counsel cites the following passage from Seepa (para. 29):
- On the other hand, the reviewing of privileged or confidential files is not nearly so offensive if one is truly concerned that there may have been some wrongdoing committed against a vulnerable testator. The same facts that make a child the primary caregiver of an elderly parent also give that same child much opportunity for misconduct. Moreover, in the standard fact paradigm, the excluded child or relative has no real way to have personal knowledge of the full facts due to the very exclusion that can point equally and ambiguously to a loving or an abusive relationship between the caregiver and the testator.
32To the question of whether Shawn has adequately answered the complaints raised, Keri argues that Shawn’s selective production of records in and of itself cries out for further inquiry and that there should be no delay or obstacles placed in the way of her attempts to gain a complete picture of what transpired before the 2020 Will was executed. She asks, why would Shawn only produce evidence that would otherwise be protected and refuse to provide any financial or medical records? This, she argues, is evidence of his intention to thwart her efforts to resolve these issues and not, as he suggests, out of concern for the deceased’s privacy nor from a desire to be more efficient so as to spare the estate needless expense.
33What is the proper interpretation of Neuberger, and how should it apply here? This can be broken down into three questions. First, when can someone with an interest in an estate compel the propounder of the Will to prove it in solemn form? Second, has Keri satisfied that test on the evidence presented to date? Third, if not yet met, what procedure should we follow going forward?
34Shawn takes the view that the first step is not to order production of all medical, legal and financial records. He argues that to do so - in the first instance and without a proper foundation - would be to allow a fishing expedition.
35Before I go any further, I wish to make two points. The first is, simply alleging incapacity or undue influence is not enough. The second is, even if a challenger can point to some evidence in support, the court must assess whether it has been sufficiently answered by the propounder. Keri, in effect, argues that we can move past this as her evidence already meets the ‘minimal’ threshold. Shawn says we are not there yet and likely won’t ever get there because he has, or will, answer Keri by proving conclusively – through the evidence of people who were there or who otherwise have firsthand knowledge of the events and facts to which they speak - that the Will was properly executed, and that the deceased was of sound mind.
36The way the issue has been framed requires that I do a deep dive into the evidence filed to date, which I will endeavour to do now.
37Below, I summarize Keri’s evidence as thoroughly and completely as I can, based on her affidavits sworn January 7, 2021, January 27, 2021, and February 16, 2021:
January 7, 2021:
In para. 2 she states that she “has good reason to be concerned about the validity of both my father’s 2020 Will and his 2016 Will” noting that he was an “inveterate alcoholic virtually his entire adult life” and had “numerous health problems”. She adds that she believes he suffers from “numerous psychiatric/psychological problems”. She opines that “his alcoholism alone would have completely impaired his judgment when it came to anything like his last Will and testament”.
In para. 3 she speaks of a letter received from her mother, and a phone call from her uncle Wayne, which suggests that her father was “calmer now that he had retired”, that he was “on Valium because of his anger issues”, and that he continued to drink.
She cites what she believes was her father’s cause of death.
She notes that her father signed his latest Will less than three weeks before his death, offering her opinion that he signed his Will at a time when he was “so addled and incapacitated by his chronic alcoholism and related problems that I am sure he could not have understood what he was signing”.
At para. 5 Keri references a phone conversation she had with her father shortly before his death, wherein he was incoherent.
She says she “overheard [her] sister-in-law at the funeral home talking to a friend of [her] dad’s, telling them that our father had been going downhill for at least the past year”.
Apparently, Uncle Wayne had also told her that her father did not keep the house the same, that it was “getting run down”, and that he had lost weight and was not eating as much.
At para. 5 she talks about an incident Uncle Wayne described for her when, at or around Thanksgiving in 2019, her dad blacked out drunk and collapsed which led to a period of hospitalization.
She speaks about her estrangement with her father indicating that she had “renewed” it after her mother’s death in 2015. She alleges that, at that time, he promised her that he would be “splitting things 50/50”.
She speaks at length about her relationship with Shawn and how he is “abusive and controlling”, citing a few incidents in support. She also speaks to the current status of their relationship.
At para. 17 she writes that: “After finding out about what had happened on October 14th, I spoke with my Uncle Wayne. He advised that my brother told him that my dad wrote many Wills, and I was not in the last one at all. My brother justified the new Will by telling my uncle that he (Shawn) is the one who had my dad over every other Sunday for dinner and drinking, and that is why he (Shawn) deserves everything”.
She makes some rather obvious points, including at para. 19, writing that “the fact he (Shawn) had to deal with my father’s abusive, alcoholic ways for the few years since my mother’s death should not diminish all of my life and the time I spent living in the household after he moved out at a young age”.
She offers an opinion on what she believes the value of her father’s estate is.
Keri acknowledges that the last time she had spoken with her father was in 2016 which, on her account, was not all that pleasant. The only cautionary note I make here is that, while I am not entirely certain, in a latter affidavit she seems to suggest that she had in fact been communicating with him at some points during that period (i.e., 2016 to 2020). I might be mistaken; I am just not sure. To the extent there is any ambiguity, not much turns on this as Keri will be able to address it and provide clarity at some point.
She indicates that her mother never changed her Will, despite their estrangement.
She writes about how her father’s abuse impacted her.
Para. 29 seems to sum up her position, and more particularly what motivates her, perfectly. She writes that: “Given the suspicious circumstances under which my father’s last Will was executed less than three weeks before his death and given my serious concerns about his mental competence and about my brothers predilection for abusive and controlling behaviour, I am very seriously concerned that my father was coerced, tricked or subjected to undue influence to sign both the 2016 and 2020 Wills”.
She writes about what led to her decision to file a Notice of Objection and describes her, and her counsel’s, unsuccessful attempts to obtain information since then.
January 27, 2021:
Most of this affidavit is dedicated to disputing the content of Shawn’s affidavit.
She takes issue with Shawn’s use of the term “activity of daily living” as a way of describing their father, surmising that he must have gotten that term from a medical professional, herself opining that it is not the same as testamentary capacity.
Keri offers an opinion on her father’s speech and how it was “consistent with alcohol intoxication” and not a result of COPD.
She once again calls upon Shawn to release her father’s medical records so that she can “find out what is correct”. At a further point in this affidavit, she rhetorically asks him “why not just agree to the release of information?”.
She explains why she was unable to see her father in the hospital before his passing.
In response to Shawn’s suggestion that any abusive history and behaviour is irrelevant, Keri insists that it is as it is “evidence of the serious nature of the abusive behaviour of my father and my brother…it was enough to force me and my family to leave London and suffer significant financial consequences….I’m pointing out how serious all of the behaviour was including my father’s alcoholism and the effect that it had on me”.
At para. 26 she gets into what, at least based on my impression, is her biggest concern – which may or may not be relevant to anything I am to consider. She asks, “what makes Shawn’s life and relationship with our parents more important than mine? I am responding to the Will because I am tired of being a victim and am going to stand up for myself”. She, again, asks “why not be open and release the records?” and states further that Shawn should “get all of the information and put it out in the open”.
February 16, 2021:
This affidavit was prepared in response to the affidavits filed by Deryck Walden - the lawyer who prepared the deceased’s 2020 Will - and John Goudy. I will return to Mr. Walden’s evidence in a moment.
She points out that Mr. Walden is hers (and Shawn’s) second cousin.
At para. 6 she deposes that he (Shawn) is “apparently trying to turn this into a motion for summary judgment which is not appropriate at this preliminary stage. There does not seem to be any real reason not to produce the balance of the lawyers’ files and the medical and financial records except for Shawn’s insistence on controlling and denying me”. This is, in part, a reference to the fact that Mr. Walden attached to his affidavit some of his notes and memos.
In response to what appears to be the deceased’s indication to Mr. Walden that she (Keri) is an RN she deposes that she is not a nurse, never has been, and did not attend nursing school. She deposes that she does have college diplomas (health care aide, medical office assistant) and that she has worked as a registration clerk in an emergency room.
She opines that her father not remembering her occupation, or the nature of her training, is evidence of his bad memory, which she ties to his alcoholism, actually going so far as to diagnose it as ‘confabulation’ which refers to when someone makes memories to cover for what they have forgotten.
She takes issue with the fact that Mr. Walden makes observations that were not included in his notes (i.e., his neat appearance, lack of alcohol smell).
She seemingly gives Mr. Walden advice on how to properly investigate the capacity of his clients.
At para. 16, she, for some reason, made note of facts and events that she vouches for, criticizing Mr. Walden for not also mentioning them (i.e., she had been communicating with her father regularly). I was a bit confused about this and am still not understanding the point she was attempting to make.
She seems to suggest that there was something unusual, and significant, about her father having to change his initial appointment with Mr. Walden.
She writes that Mr. Walden’s indication that the deceased wanted to change his Will because of Covid-19, is “preposterous”. While I understood her, and her counsel’s, argument that this, at least to them, did not make sense as an explanation for changing one’s Will, to call it preposterous is needlessly hyperbolic. It was also confusing as it was not made clear whether this was meant to suggest that Mr. Walden is lying and part of some grand conspiracy; whether he is biased against Keri; or that this, assuming it was said, is somehow indicative of what she says was her father’s deterioration.
She criticizes Mr. Walden’s note-taking practices and says his father (Philip Walden) sending her a sympathy card after her father’s death was “bizarre”. The relevance of this paragraph escapes me altogether.
38While this is but a summary of Keri’s evidence, I can assure the parties that I have carefully reviewed it all. While there is no question that Keri has told the court what she believes is important and relevant, and while there is no doubt that she wants answers to the questions that linger for her, this evidentiary record is lacking. It is largely reliant on what others have told her (i.e. Uncle Wayne; what she overheard at the funeral home); regardless of source, much of the information she provides is dated (as she had not seen her father, or meaningfully communicated with him, in many years); and, most importantly, it is largely comprised of assumptions, bald assertions and conclusory statements about the impact of her father’s alcoholism, going so far as to suggest, without much if any evidence, that he suffered from psychological issues.
39Given my assessment of this evidence I have little choice but to conclude that to direct the production of all medical, legal, and financial records of the deceased, at this stage, would be premature and that, without more, I would be countenancing a fishing expedition.
40In the event I am wrong in this preliminary assessment – and Keri has indeed pointed to some evidence which calls into question the Wills’ validity – I will now address the evidence tendered by Shawn and, hopefully, explain why it would still be necessary to proceed in the manner he proposes.
41For the purposes of my analysis I will focus on Deryck Walden’s affidavit sworn February 3, 2021. Mr. Walden was retained by the deceased in August of 2020 to prepare his Will. He practices law in the Town of Forest and was called to the Ontario Bar in 2001. He deposes that since his call he has practiced corporate commercial, business, real estate, Wills, estates and trust law. He further deposes that from 2017 to 2019 he drafted approximately 170 Wills per year. He advises that his typical practice is to make notes, and/or prepare memos, at the time of or immediately following a client meeting. As it relates to this matter, he deposes that:
i) He made notes and memos in relation to his interaction with the deceased (which he attached to his affidavit).
ii) He has no reason to doubt the accuracy of his notes or memos.
iii) He has an independent recollection of the instructions he received from, and the observations he made of, the deceased.
iv) He was retained to assist the deceased in preparing his 2020 Will.
v) His father, lawyer Philip Walden (now retired), assisted the deceased in preparing his 2016 will.
vi) He is advised by his legal assistant that:
a. The deceased called his office in June 2020 to request an appointment to change his Will.
b. She told the deceased that due to Covid-19 protocols no appointment was available until July 9, 2020, which was scheduled. At the same time a second appointment was scheduled for July 16th.
c. The deceased did not make it to his initial appointment, which was rescheduled for August 26th.
vii) On August 26th he met with the deceased. They met outside. The deceased remained in his vehicle while he spoke to him while standing outside. They spoke through the open driver’s side front window. He noted the deceased’s vehicle to be clean and well kept. He observed that the deceased’s “physical appearance was neat and [that] he did not smell of alcohol”.
viii) He observed that the deceased had a slight tremor in his hands but added that it “did not lead [him] to suspect that he [the deceased] lacked testamentary capacity”.
ix) The meeting lasted approximately 30 minutes.
x) He noted the deceased to be “lucid, coherent and able to respond appropriately to questions. He was oriented to time and location, displayed no signs of confusion or memory loss, initiated conversation and showed no behaviour or made no comments which might lead me to suspect a lack of testamentary capacity”.
xi) No one else was in the car with the deceased, who drove himself to the appointment. He took a copy of the deceased’s driver’s license.
xii) His notes reveal what he learned from the deceased (i.e., where he worked, when he retired, when his wife passed, the location of various family members, nature of his assets, information about his children and grandchildren, the specific changes he wanted to his 2016 Will).
xiii) The deceased told him that his daughter, Keri, had “ignored her mom for 10 years, and still ignores [him]”.
xiv) The deceased brought his 2016 Will. They reviewed it together, during which he noted the changes the deceased wanted and those provisions to remain untouched.
xv) He deposes that the deceased specifically told him that he wanted “his Will to be changed so that his daughter Keri Prychitko would receive a payment of the sum of fifty thousand dollars”. From this discussion he notes: “50,000 to my daughter Keri Prychitko. She lives in North Bay. Have not seen her in at least 4 years. Maybe 5 years. Her husband is an anesthesiologist (dr) & uppity”.
xvi) At the conclusion of their meeting, the deceased scheduled a second appointment for September 2nd in order to execute the new Will.
xvii) On September 2nd the deceased once again attended at Mr. Walden’s office. He drove himself and was alone. After reviewing the new Will and after speaking to Mr. Walden, he signed it. In his notes Mr. Walden writes that the deceased said his “daughter is an RN, ER ward Victoria, her husband is an anesthesiologist and anti-social, he has no sense of humour, none whatsoever”.
xviii) The deceased asked about his (Mr. Walden’s) children and discussed other family members.
xix) With respect to the September 2nd meeting, he deposes that “based on my observations of Ron at this meeting there were no behaviours which I observed or comments which I heard from [the deceased] that called into question his capacity to make a Will or that his instructions on the terms of his September 2, 2020 Will were the product of undue influence”.
xx) He deposes that nothing about either meeting (August 26 and September 2) made him doubt the deceased’s capacity to instruct him. He indicates that the deceased gave him “clear and direct instructions” in respect of the changes he wanted.
xxi) At paras. 52 and 53 specifically, he deposes that “Based on my observations of [the deceased] at our meetings on August 26, 2020 and September 2, 2020, there were no behaviours which I observed or comments which I heard from [the deceased] that called into question his capacity to make a Will or that his instructions on the terms of his Will were the product of undue influence. He made no comments to me during the course of my August 26, 2020 or September 2, 2020 meeting with him which suggested or indicated that he understood that his death was imminent”.
xxii) The deceased did not provide a specific reason for why he wanted to change his Will at the time he scheduled his appointment. With respect to what was said about this topic during their meeting, he deposes that “at no time during my two meetings with [the deceased], namely on August 26, 2020 and September 2, 2020, did [the deceased] comment to me regarding any conversations, crisis or immediate health issues, other than the Covid-19 pandemic, which affected everyone, which motivated him to contact me to change his Will.”
xxiii) The deceased said nothing about discussions he had with Shawn about changing his Will.
xxiv) He (Mr. Walden) never spoke to Shawn about his father’s Will.
xxv) He described what he does when he suspects a client does not have the necessary mental capacity to sign a Will, or when he suspects they are or have been the target of undue influence (i.e., arrange for an assessment; speak to their physician, or other family members; pose specific questions to the client). He saw no need to do any of this.
42As I have indicated, I am not satisfied that Keri’s evidence, as it now stands, meets the minimal threshold discussed in Neuberger. I find that her presentation basically amounts to a collection of unnecessary and unhelpful opinions on matters she is not capable of opining on, and of a series of conclusory statements about the impacts of alcoholism. Most notably, she cites the existence of psychological impairments with no supporting evidence other than, again, the deceased’s alcoholism, what she has heard second and third hand, and her conversation with him while on his deathbed. In effect, she wants an expansive order for directions and widespread productions based on her gut feeling that her father did not have the capacity to change his Will. She also makes a self-serving leap by concluding that what she views as Shawn’s controlling behaviour necessarily means he placed undue influence on the deceased. That might be her opinion but there is a complete dearth of evidence in support.
43The bottom line is that, in every case a litigant must plead facts that support the specific request(s) being made, which would justify use of the full set of fact-finding tools provided for in the Rules. Shawn argues, and I agree, that this concern becomes even more acute in an estate matter given the unique policy concerns they raise.
44Contrary to what Keri’s counsel argues, this is not, in its effect, a summary judgment motion. In fact, given the concerns I have identified, I would say that Shawn’s proposal to move forward is balanced and fair and not designed to stop Keri in her tracks. Consider what he is asking me to do. He is asking that, yes, for the time being, I conclude that the record does not support a voluminous production of documents. However, his suggested timetable affords Keri the opportunity to file further evidence in support of her objection(s), and for examinations on affidavits to proceed. Shawn’s counsel puts it this way at paras. 68 and 69 of his Factum:
The appropriate order for directions at this time is the Applicant’s order for directions, permitting Keri to file any further evidence to meet the necessary evidentiary threshold to proceed, permitting Shawn the opportunity to answer any evidence adduced by Keri and cross examine her.
If after these initial steps Keri has met the minimum evidentiary threshold, then the court can determine what process and what documents are necessary to resolve any conflicts which cannot be fairly resolved on the record before the court.
45I appreciate Keri’s argument which is, if Shawn is really concerned about proportionality and costs, why wouldn’t he just agree to the order she proposes instead of creating this extra layer which, if she is ultimately successful, will only elevate costs even more. That is a fair point. That said, I have real concerns over whether the minimal threshold discussed in Neuberger has been, or can be, met which means that the course charted by Shawn is the most prudent one.
46An Order is to issue on the terms set out in Shawn’s draft Order for Directions which, for ease, I attach and mark as “Schedule A”. With respect to para. 4, I will leave it to counsel to fix a date for argument. I would suggest that, at least at this point, the language in para. 4 remain largely the same but instead of specifying a date that it simply reference that the identified issues will be heard at a special appointment (date TBD). If counsel can agree upon a regular motions court date when they might speak to this matter and schedule next steps accordingly, that date can also be included in the draft Order they submit for my signature. If they cannot agree on a speak to date, they should so advise, at which point I will select it for them. There are, of course, other dates/deadlines in Shawn’s draft order which will need to be adjusted and trust that counsel will be able to reach an agreement on same. Again, if they cannot agree they are to advise, and I will do it.
47Costs reserved to judge who ultimately decides and disposes of the Application and Motion(s).
Justice Jonathon C. George
Released: April 28, 2021
SCHEDULE “A”
Court File No. CV-20-00002036-0000
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE ESTATE OF Ronald Wayne Young, deceased.
THE HONOURABLE JUSTICE ) THURSDAY, THE 22ND DAY OF JANUARY, 2021
BETWEEN
RONALD SHAWN YOUNG
Applicant
-and-
KERI PRYCHITKO, AMBER MARIE YOUNG, DEVIN RONALD YOUNG, PATTI MACKINNON, MALLORY KERI LYN PRYCHITKO AND JAMES JONATHAN PRYCHITKO, by their litigation guardian THE CHILDREN’S LAWYER
Respondents
ORDER FOR DIRECTIONS
THIS Application made by the Applicant, RONALD SHAWN YOUNG in part for an order for directions was heard by telephone or video conference on this day at London, Ontario, in the presence of the lawyers for the Applicant and the Respondent, KERI PRYCHITKO.
ON READING the Notice of Application and affidavits of Ronald Shawn Young sworn December 22, 2020 and January 18, 2021 and exhibits and the Notice of Motion and affidavit of Keri Prychitko sworn January 7, 2021 and exhibits, the draft orders for directions submitted, the Applicant’s Book of Authorities and on hearing submissions made,
- THIS COURT ORDERS that the Respondent Keri Prychitko file and serve any further evidence or other materials which calls into question the validity of:
a. Ronald Wayne Young’s Last Will and Testament executed on September 2, 2020; and
b. Ronald Wayne Young’s Last Will and Testament executed on July 4, 2016,
within 30 days of the date of this order.
AND THIS COURT ORDERS that the Applicant, Ronald Shawn Young shall file and serve responding evidence or other materials within 60 days of the date of this order.
AND THIS COURT ORDERS that any cross-examinations on affidavits or examinations on a pending application for the materials filed shall be conducted within 90 days of the date of this order.
AND THIS COURT ORDERS that these issues in this application be heard at a special appointment set on ___________________, 2021 for ___________________ hours without a court reporter to determine the issue of whether the Respondent Keri Prychitko has adduced or pointed to evidence that calls into question the validity of:
a. Ronald Wayne Young’s Last Will and Testament executed on September 2, 2020, which the Applicant, Ronald Shawn Young has not successfully answered;
b. Ronald Wayne Young’s Last Will and Testament executed on July 4, 2016, which the Applicant, Ronald Shawn Young has not successfully answered;
- AND THIS COURT ORDERS that if the Respondent, Keri Prychitko has adduced or pointed to evidence that calls into the question the validity of either,
a. Ronald Wayne Young’s Last Will and Testament executed on September 2, 2020, or
b. Ronald Wayne Young’s Last Will and Testament executed on July 4, 2016, which the Applicant, Ronald Shawn Young has not successfully answered,
the judge hearing this matter will direct the manner in which any testamentary document(s) is/are to be proven pursuant to the powers under Rule 75.06(3) of the Rules of Civil Procedure.
AND THIS COURT ORDERS that the relief requested in the Respondent, Keri Prychitko’s Notice of Motion dated January 8, 2021 is adjourned to the special appointment.
AND THIS COURT ORDERS that the balance of the relief requested in the notice of application is adjourned to Friday February 19, 2021 at 10:00am.
AND THIS COURT ORDERS that the Respondent Keri Prychitko shall serve and file any further materials in response to the balance of the relief requested in the notice of application on or before Friday February 5, 2021.
AND THIS COURT ORDERS that the Applicant shall serve and file any reply materials in relation to the balance of the relief requested in the notice of application on or before February 12, 2021.
AND THIS COURT ORDERS that the Children’s Lawyer shall be appointed as the litigation guardian for the minor, Mallory Keri Lyn Prychitko born March 22, 2007 and James Jonathan Prychitko born January 19, 2009 by their litigation guardian The Children’s Lawyer for the purposes of this proceeding only.
AND THIS COURT ORDERS that any party may seek further advice and direction from the court on notice to the other parties.
Justice
COURT FILE NO.: 2036/20
DATE: 2021/04/28
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
RONALD SHAWN YOUNG
Applicant
-and-
KERI PRYCHITKO, AMBER MARIE YOUNG, DEVIN RONALD YOUNG, PATTI MACKINNON, MALLORY KERI LYN PRYCHITKO AND JAMES JONATHAN PRYCHITKO, by their litigation guardian THE CHILDREN’S LAWYER
Respondents
REASONS FOR decision
George J.
Released: April 28, 2021