COURT FILE NO.: CV-19-0021-00
DATE: 2021-05-25
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
TRACY MORRISH, GINA WONFOR-KEAST and DEBRA KLIPPENSTEIN
Applicants
- and -
MARGARET KATONA, in her personal capacity and her capacity as the Estate Trustee of the Estate of Lynn Kehler and FORT FRANCES FRIENDS OF ANIMALS
Respondents
R. Levesque, for the Applicant
B. Morgan, for the Respondents
HEARD: February 25, 2021, at Thunder Bay, Ontario
Madam Justice T. J. Nieckarz
Decision On Motion
OVERVIEW:
[1] The Applicants bring this motion for directions in their Application to challenge the Last Will and Testament of the deceased, Lynn Kehler (“Lynn”), dated November 4, 2014 (the “2014 Will”).
[2] The Applicants are Lynn’s nieces by marriage. They were the sole beneficiaries of Lynn’s estate until 2014 Will was executed.
[3] The Respondent, Margaret Katona (“Margaret”) was Lynn’s neighbour and friend of 39 years. Lynn left her entire estate to Margaret, except for small bequests to each of her three nieces and a bequest to a charity. Lynn also made Margaret her power of attorney and estate trustee.
[4] The Applicants allege that Lynn did not have testamentary capacity at the time of signing the 2014 Will. They argue that in the time leading up to the signing of the Will, there is medical evidence to suggest Lynn was suffering from confusion and delusional thoughts. While their primary concern is that Lynn may have been suffering from the delusional belief that they were trying to take her money, which belief affected her expressed wishes, they further allege undue influence by Margaret. Margaret denies both allegations.
[5] The Applicants seek the following Order:
a) Directing a trial of issues with respect to the validity of the 2014 Will, the alleged destruction of prior Wills and undue influence;
b) Directing examinations for discovery;
c) Authorizing the production of further solicitor’s records and medical records necessary for the trial of the Will challenge; and
d) For the preservation of estate assets and an accounting.
[6] Margaret takes the position that Lynn had capacity at the time of signing the 2014 Will. She disputes any allegations that her and her husband were anything other than caring and compassionate friends and neighbours to Lynn, who she chose to benefit as a result. Margaret argues that the request for an order for directions should be dismissed because:
a) The minimum evidentiary threshold required for challenging capacity and/or undue influence has not been met; and
b) Even if it has, Margaret has successfully provided an answer to any alleged concerns that demonstrate there is no need to put the estate to the time and expense required by the litigation process.
[7] For the reasons that follow, the motion for an order for directions is granted.
FACTS:
[8] This is a very fact driven case. As such, a detailed review of the facts as alleged by the parties is required.
[9] Lynn married twice. Her only child died shortly after birth. The Applicants, Gina and Tracy are the nieces of her first husband, while Debra is the niece of her second husband. All three of her nieces were very close to Lynn, were her closest family, and played an important role in her life.
[10] When Lynn’s second husband died, she prepared a new Will on May 1, 2001 (the “2001 Will”) and it is believed she named all three of her nieces as the beneficiaries.
[11] On October 6, 2011, Lynn made a new Will (the “2011 Will”). This Will directs that her brother-in-law from her first marriage be named her estate trustee, with Lynn’s estate divided equally amongst Tracy, Gina and Debra.
[12] The Applicants allege that Lynn began showing signs of cognitive impairment approximately two years after signing the 2011 Will.
[13] On April 2, 2013, Lynn was admitted to hospital for confusion, and was hospitalized for three days. During her hospitalization she was described by medical personnel as “very confused”, “not cooperative” and “visibly angry”. Lynn’s delusions included believing that her long deceased father was waiting at home for her. She was diagnosed as suffering from a combination of “dementia/ETOH (ethanol intoxication) causing delirium”.
[14] On October 26, 2013, Lynn returned to the hospital for breathing difficulties and a rash. She was hospitalized for five days, during which time she was noted by medical personnel as being in various states of confusion, agitation, anger and delusion.
[15] Lynn was once again hospitalized on March 27th, 2014 with confusion, head pain and slurred speech. During her hospitalization she was noted as being very confused. A CAT scan was performed, which showed significant atrophy of her brain. Her physicians believed she was suffering from a “possible TIA (stroke) or residual neurological deficit”, “dementia” and “depression”.
[16] In June 2014, Lynn was hospitalized for back pain. Upon admission Lynn was noted to be disoriented and unable to express herself. She was described as confused, but able to follow directions. She discharged herself against the advice of physicians.
[17] Lynn also suffered from severe back pain arising from compression fractures. Margaret did go with Lynn to some of her medical appointments and expressed concern about her ability to manage her pain with the medications she had. On some days, the pain was so severe that it affected her ability to carry out her daily activities.
[18] The Applicants state that by September of 2014, they were extremely concerned about the changes they were seeing in Lynn’s behaviour. She was displaying odd and uncharacteristic behaviour. She was becoming angry and confrontational, forgetting conversations about illnesses and deaths of significant family members, forgetting names or when she had last spoken with family or friends, she demonstrated confusion over her medications and the dosage, she stopped engaging in hobbies she enjoyed such as bridge, she emptied the contents of one niece’s purse on the floor and hid her passport for no known reason, and she had difficulty making conversation. She periodically made comments that she felt she was “losing it”.
[19] In September 2014, Debra became particularly concerned during a visit to Fort Frances to see Lynn. She noticed the unkept state of the home and a lack of food in the fridge and cupboards. She also noticed Lynn’s difficulty in remembering where her house keys were, the PIN for her credit card, her medication dosage, the reason why she was taking certain medications, and her combining alcohol with the medication. These were similar themes also noticed by Debra’s mother when she had visited months earlier.
[20] Debra had noticed that Margaret was coming and going from Lynn’s home and had became more involved in Lynn’s life. She spoke with Margaret about her concerns. Despite Margaret’s position in this litigation, Debra states that Margaret acknowledged a concern that Lynn was becoming increasingly forgetful to the point that there was a concern about her ability to care for herself. It was during this visit that Debra also witnessed Lynn become very confused as to who Margaret was, and referred to her as “mom”.
[21] Gina spoke with Lynn about helping her to speak with healthcare providers about how they could improve her situation. Lynn gave Gina permission to speak with her physicians, but subsequently forgot about their earlier conversation. Lynn became angry and suspicious of her nieces’ motives in trying to help.
[22] In the meantime, Margaret began to play an increasingly greater role with Lynn, helping take her to doctor appointments, reminding her to take her medications, helping with her yard work, and either stopping by or calling Lynn regularly to check on her. Margaret states that she was taking care of her neighbour and friend. The Applicants became suspicious of Margaret’s motives, feeling that they could not see their Aunt without Margaret or her husband hovering and preventing them from having private visits with her.
[23] While Margaret acknowledges that Lynn was having some memory problems and difficulty with concentration, she denies that these concerns prevented her from making rational decisions and prevented her from caring for herself.
[24] Other than some minor assistance from Margaret and her husband, Margaret states that Lynn lived independently in her own home until January 2016 and performed all her daily living activities without homecare. She continued to drive, pay bills, get her own groceries, schedule her own medical appointments, hair appointments, veterinary appointments, home maintenance and repairs, and performed all her own banking. Lynn also had two rental apartments that she continued to manage until she was hospitalized in 2016.
[25] In addition, Lynn continued to perform bookkeeping for the Rainycrest Home for the Aged tuck shop on a volunteer basis.
[26] Lynn was referred to the Older Adults Program at the Canadian Mental Health Association for her memory problems. Program worker notes reveal the following:
a) Note dated April 24, 2014 reported a conversation on April 23, 2014 with Lynn’s physician during which he expressed concerns about the significant atrophy shown on her recent CAT scan, dementia and depression. The note further suggests that Lynn downplayed her memory loss and that she required an antidepressant, but the physician was uncertain as to whether she was taking it regularly.
b) Note dated June 11, 2014 reported a telephone call from Lynn’s chiropractor who had concerns that when Lynn was seen that day she was confused. When the worker attempted to follow up with Lynn’s physician, his clinic nurse advised they too had received a report of Lynn being confused. Lynn’s physician believed that the confusion could be caused by a combination of Lynn’s medications and the consumption of alcohol, along with dementia. Margaret was contacted by the program and asked to check on Lynn. Margaret reported having seen Lynn three times that day with no concerns.
[27] In 2014 and 2015, Lynn took various cognitive tests through the Older Adults Program. The first was in April 2014 and she scored 27/30. She took one in May 2014, which revealed “some cognitive issues” and “moderate depression”. The next was in November 2014 and she scored 25/30. The last was in May 2015 and she scored 25/30. Margaret indicates that these scores are indicative of Lynn functioning well.
[28] Lynn also performed a cognitive test in October 2013 during her hospital admission and scored 20/30. There is no explanation in the evidence as to the implication of this score.
Execution of the 2014 Will:
[29] On October 16, 2014, Lynn met with lawyer, Donald Taylor to give him instructions for the preparation of a new Will. This new Will was to leave the majority of Lynn’s estate to Margaret.
[30] Mr. Taylor had not prepared Lynn’s previous wills. He is a lawyer with more than 30 years’ experience. Lynn made the appointments with Mr. Taylor herself, and attended at his office alone. Mr. Taylor directed Lynn to obtain banking information, which she did herself. There is no evidence of concerns by Mr. Taylor of incapacity.
[31] Once the draft Will was prepared, it was sent to Lynn for her review prior to meeting with Mr. Taylor to review the final draft and sign. Lynn made a further appointment with Mr. Taylor for October 23, 2014, during which delivered a handwritten note to him with respect to instructions.
[32] Mr. Taylor’s notes from his initial meeting with Lynn states her reasons for making a new Will as follows:
“[Lynn] claims that there has been a Will done locally that her Nieces set up. She is upset that they have told her how they are going to spend her money and she doesn’t want them to get the money”.
[33] In the October 23, 2014 meeting with Mr. Taylor, Lynn told him that her nieces were trying to put pressure on her to take over her affairs and get money from her.
[34] The Applicants claim that there was no truth to what Lynn told Mr. Taylor. They deny ever having “set up” a prior Will for Lynn. The Applicants only became aware of the contents of the 2011 Will through Lynn, who talked to them openly and often about her desire to benefit them. They deny any involvement in the preparation of any of Lynn’s Wills.
[35] The Applicants also deny ever having had any conversations with Lynn about how they were going to spend her money, having suggested how she should spend her money, or having asked her for money. They believe these were delusional thoughts caused by Lynn’s underlying cognitive or other issues that impacted her testamentary capacity. They believe that Lynn executed her 2014 Will while under these delusions.
[36] Margaret states that the relationship between Lynn and her nieces was not as good as they would have the court believe. As Lynn discussed with her lawyer, she had become disillusioned with her nieces and decided she no longer wished to benefit them. Margaret alleges that there was nothing nefarious about the change in her bequests and that the Applicants are simply disgruntled relatives.
[37] Margaret recalls that in June 2014, after Lynn discharged herself from the hospital, she overheard Lynn and Tracy having a verbal argument in Lynn’s home in which they were both yelling.
[38] Margaret has also come across notes to Lynn that were left by either Tracy or Gina during the period of June 2014 to September 2014, which Margaret says support Lynn’s concerns that they were pressuring her with respect to her Will. A review of the notes reveals nieces that were simply trying to be of assistance. Specifically:
a) Tracy and/or Gina were assisting Lynn with obtaining prescriptions, providing written reminders as to when to take medications and when medical appointments were taking place, providing written reminders of events that happened, doing some of her banking, helping her pay her bills, and generally anything she required;
b) Tracy and/or Gina were stopping by regularly to assist Lynn;
c) A reminder to contact “Uncle Jim” (Lynn’s first husband’s brother) if there is anything further she would like to have done with her will and/or legal matters; and
d) Correspondence from Mr. Fontana, a retired judge of the Ontario Court of Justice lives in Ottawa, dated September 23 confirming Lynn had asked him to act as her estate trustee and confirming that she needs to see a lawyer to have her existing will changed to give effect to this. Mr. Fontana also suggested to Lynn that she have someone located in Fort Frances act as power of attorney.
[39] In October 2014, Lynn removed Tracy as a joint account holder on her RBC account, and then did the same with her TD bank account in February 2015.
[40] Lynn died on January 9, 2018. The value of Lynn’s estate is approximately $660,000. The following were Lynn’s bequests pursuant to the 2014 Will:
a) $1,000 to each of Tracy and Gina;
b) $3,000 to Debra;
c) $5,000 to Fort Frances Friends of Animals; and
d) The residue to Margaret.
[41] The Applicants allege that they remained very close to their aunt until her death. Tracy visited her every day and Gina visited evenings and weekends at the care home. While they were aware that Margaret was her power of attorney, they were surprised by the change she had made to her Will.
[42] Margaret, in her capacity as Estate Trustee has completed the administration of the estate, including payment of taxes and debts, satisfied bequests and distributions, and transferred Lynn’s real property to herself.
[43] Margaret states that if the 2014 Will is invalid, the result will be an intestacy due to the 2001 and 2011 Wills having been destroyed. Lynn picked up the 2001 and 2011 original Wills and advised Mr. Taylor she had destroyed them. There are no copies of the 2001 Will. There are photocopies of the 2011 Will. Margaret takes the position that an intestacy will result from the revocation and will not benefit the Applicants. She states they are better off taking the bequests made to them under the 2014 Will.
ANALYSIS:
The Legal Framework:
[44] The court has discretion as to the manner or process for the proof of a Will; whether to permit the proponent of a Will to prove the required facts in a summary fashion, or to engage in a full, formal litigation process: Seepa v. Seepa, 2017 ONSC 5368, at para. 24.
[45] Rule 75.06(1) of the Rules of Civil Procedure authorizes the Court to give directions with respect to the procedure for a challenge to the validity of a Will.
[46] In estate cases, before a litigant is given the usual tools of litigation such as documentary and/or oral discovery, more is required than simply pleading facts to support a cause of action. Having said this, they are not required to prove their case at this stage: Seepa v. Seepa, at paras. 35 and 40.
[47] When a Will is challenged an interested person must meet a minimum evidentiary threshold before a court will require a Will to be proven in solemn form. They must adduce “some evidence”, which if accepted, and not successfully answered by the propounder of the Will, would call into question the validity of the Will: Neuberger v. York, 2016 ONCA 191, at paras 88-89.
[48] It is only when the propounder does not successfully answer the evidence adduced by an application that the court will proceed to give directions under Rule 75.06: Seepa v. Seepa, at para. 34.
Discussion:
Order for directions threshold:
[49] As indicated above, the evidentiary threshold on a motion for an order for directions is low. The Applicants must only adduce “some evidence” to call into question the validity of the Will. I find that they have done so and a trial of the issues of Lynn’s capacity to make the 2014 Will, to destroy her prior Wills, and the issue of undue influence is required. In the circumstances of this case, these are not issues, that can be properly determined summarily or without further investigation through the documentary and oral discovery process.
[50] The evidence of the Applicants in the eighteen-month period leading up to the execution of the 2014 Will shows they grew increasingly concerned, as did other family members, about Lynn’s growing state of confusion. They determined that her behaviours and the changes in her personality were of such concern that they needed to become more involved in her care.
[51] These concerns were echoed by health care professionals who had an opportunity to interact with Lynn and observe her during hospital admissions. They were also echoed by Lynn’s physician and her chiropractor during interactions with her. The diagnoses of brain atrophy, dementia, and the concerns expressed by a physician about the impact of the interaction of Lynn’s medications with the consumption of alcohol are concerning.
[52] There is very little evidence of any strain in the relationship between Lynn and her nieces, or of the allegations Lynn made to Mr. Taylor to justify her decision to significantly change the beneficiaries of her estate. While Lynn does not need a reason to change her beneficiaries if she has testamentary capacity, in the circumstances of this case the foregoing suggests there are concerns as to whether she did in fact have capacity.
[53] I also find that the evidence led by Margaret does not successfully answer the issues raised by the Applicant’s evidence such that I am led to conclude that a trial of the issues is not necessary. There are more questions raised by the evidence than answers. A trial with further evidence from the parties, along with the evidence of other relevant witnesses, will be necessary to determine these issues.
[54] Having said this, I agree with Margaret’s position that simply because Lynn had some ongoing medical issues, including confusion, this does not necessarily mean that she did not have testamentary capacity at the time of signing her 2014 Will. Clearly Lynn’s lawyer, who is an experienced solicitor, believed that she did.
[55] This is a complicated case. While the evidence suggests Lynn may not have been as independent as Margaret suggests throughout the period in question, she was not so compromised as to require full-time assistance until January 2016. The Applicant’s case rests on their ability to demonstrate that Lynn’s confusion led her to delusional conclusions about their motives and about her relationship with Margaret, which in turn caused her to make testamentary dispositions she would not have otherwise made. At this stage, they have provided some evidentiary foundation for these claims. It is not for me to assess the sufficiency of that evidence beyond the minimum threshold of “some evidence”; that is for the ultimate trier of fact in this case to do.
[56] Similarly, the Applicants have provided some evidence of Margaret’s increased involvement with Lynn as she became more mentally compromised. This alone does not necessarily amount to undue influence. As Margaret has stated in her answer to this allegation, she was being a good, loyal friend and neighbour, but once again it is not that simple. The evidence as to Lynn’s increasing confusion, possible confusion as to who Margaret was, and continued involvement in a caretaking role of her nieces, leaves many questions that need to be explored further through further discovery and trial. I find that Margaret has not successfully answered this question so as to negate the need to proceed with a trial of the issue.
[57] If the 2014 Will is successfully challenged, I agree with the Applicants that a determination of Lynn’s capacity to revoke her 2011 Will by destruction is also required.
Production of the Lawyer Files for the 2001 and 2011 Wills:
[58] The Applicants initially sought production of the files of Ian McLennan (lawyer for the 2001 Will) and Wesley Derksen (2011 Will) and discovery of both lawyers pursuant to Rule 31.10 of the Rules of Civil Procedure. Mr. McLennan is now retired, and the evidence suggests that the file may no longer exist.
[59] Mr. Derksen was served with the motion materials and has not taken a position with respect to the orders sought. Counsel for Mr. Derksen and for the Applicants have agreed upon the form of the order with respect to the production of records and discovery of him.
[60] The files of Mr. Derksen and Mr. McLennan (if it exists) are clearly relevant to the issues in dispute. Having said this, I am mindful of the caution of Myers J., in Seepa v. Seepa, at para. 49, that motions for direction should be customized to the case at hand to promote efficiency, affordability, and especially proportionality. There is no need in this case for lengthy discoveries of Mr. Derksen. Once his file has been produced, if counsel cannot agree as to appropriate time limits to be placed on discovery of Mr. Derksen, I may be spoken to.
Production of Further Medical Records:
[61] Lynn gave instructions in October 2014 and signed the 2014 Will in November 2014. The Applicants seek production of medical records from January 2016, to the date of Lynn’s death. They argue that they are necessary for the parties and the Court to truly understand Lynn’s capacity in October/November 2014.
[62] Margaret argues that this is an unnecessary invasion of Lynn’s privacy given that the period for which records are sought is not relevant.
[63] No information is accorded a higher standard in privacy law than a person’s medical files. The information contained in these files is highly personal and should not be revealed to an excluded or disgruntled relative so that they may conduct a fishing expedition to attempt to bolster a case for which they have no real evidence: Seepa v. Seepa, at para. 28.
[64] I am satisfied that this is not the case here. The medical records prior to January 1, 2016, demonstrate a concern that Lynn was suffering the effects of dementia. There was also a concern that her confusion and cognitive issues could have been exacerbated by the interactions between medication and alcohol. I agree with the Applicants that Lynn’s ongoing medical records post January 2016, are important for determining the progress of Lynn’s disease over time, particularly given their allegations that they noticed a marked deterioration over time. They will also, hopefully reveal whether any definite conclusions were ultimately reached by healthcare professionals as to the cause of Lynn’s concerns that began in 2013.
[65] Of particular importance to my decision is the fact that the Applicants intend to retain an expert to produce a retroactive assessment of Lynn’s testamentary capacity at the time she made her 2014 Will. I agree that for the expert opinion to be as accurate as possible, it is important that the expert have access to Lynn’s complete files. While normally I may have ordered redaction of anything in those files not related to Lynn’s dementia/confusion concerns, in this case it is important that the complete files be produced, particularly given the concerns raised by previous physicians with respect to the possible effect of various medications and alcohol use. It is important that the expert have a complete picture of Lynn’s conditions and medications.
Preservation Order:
[66] Margaret has distributed the estate assets. As the residual beneficiary, she received Lynn’s investments and real property. The Applicant’s seek a preservation order over these assets, and a certificate of pending litigation. They argue that these orders are necessary to ensure their claims are not defeated by Margaret’s premature distribution of Lynn’s estate.
[67] Rule 45.01 of the Rules of Civil Procedure empowers the court to make a preservation order over “any property in question in a proceeding”. The estate assets that are in the possession and control of Margaret are the very subject matter of the dispute. I agree that it is important they be preserved to avoid dissipation pending the outcome of the Will Challenge litigation.
ORDER:
[68] For the foregoing reasons, an Order shall issue in accordance with the draft submitted by the Applicants in the form attached as Schedule “A”.
[69] The Applicants are the successful parties on this motion. If the parties are unable to agree as to costs:
a) The Applicant’s written submissions shall be delivered within 30 days of the release of this decision and shall be limited to five pages, double-spaced not including attachments such as a bill of costs, authorities or other relevant documents;
b) The Respondent’s written response shall be delivered within 15 days of the receipt of the Applicant’s submissions and shall be similarly limited in length; and
c) Any Reply shall be delivered within 10 days of receipt of the Respondent’s submissions.
“Original signed by” The Honourable Madam Justice T.J. Nieckarz
DATE: May 25, 2021
COURT FILE NO.: CV-19-0021-00
DATE: 2021-05-25
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
TRACY MORRISH, GINA WONFOR-KEAST and DEBRA KLIPPENSTEIN
Applicants
- and –
MARGARET KATONA, in her personal capacity and her capacity as the Estate Trustee of the Estate of Lynn Kehler and FORT FRANCES FRIENDS OF ANIMALS
Respondents
DECISION ON MOTION
Nieckarz J.
Released: May 25, 2021