Court File and Parties

COURT FILE NO.: 131/20 DATE: 2021-06-23 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Kathleen Marion McBeath and Adam James Walker, Applicants AND: Jane McBeath Wright, Respondent

BEFORE: Justice R. Raikes

COUNSEL: L. Farrell - Counsel, for the Applicant P. Ledroit - Counsel, for the Respondent

HEARD: May 13, 2021

Endorsement

[1] Thomas Wilson McBeath died October 13, 2019. He was then 94 years old. His wife predeceased him in 2011. He is survived by four daughters: Jane, Laurie, Mary, and Kathleen. For ease of reference, I will refer to the daughters by their first names in this decision.

[2] Mr. McBeath executed a Last Will and Testament on March 25, 2015, roughly 4.5 years before he died. He appointed his daughter, Kathleen and her son, Adam, as Estate Executors and Trustees. His Will provides for:

a. Bequests to a local church and a pipe band totalling $60,000;

b. Gifts of $10,000 to five grandchildren;

c. The residue is divided equally between three of his daughters: Laurie, Mary, and Kathleen; and

d. Laurie’s share goes into a Henson Trust because she is developmentally delayed.

[3] The respondent is Mr. McBeath’s eldest daughter, Jane McBeath Wright. It is undisputed that earlier Wills provided for an equal division of his Estate among all four daughters. The final Will does not. Jane gets nothing, nor do her children.

[4] Jane alleges that the new Will and her exclusion from it occurred as a result of Kathleen’s undue influence on her father and his lack of testamentary capacity. She objects to the validity of the March 25, 2015 Will and wants the Will to be proved in solemn form.

[5] The applicants move for directions with respect to the procedure to be followed to determine the validity of Mr. McBeath’s Will including, inter alia, whether Jane has met the minimum evidentiary threshold to require that the Will be proved in solemn form and the issues to be decided.

[6] The applicants contend that the respondent has not met the minimal evidentiary threshold; she has merely made bald allegations without any proof. They submit that not only is there no evidence of lack of testamentary capacity, the evidence filed shows that Mr. McBeath was alert, independent, capable of managing his financial affairs, and knew what he wanted at the time he changed his Will. They contend that the change made by Mr. McBeath followed years of strained relations with Jane and happened shortly after a culminating incident involving Jane and Laurie. Even if the evidence of Jane could be said to pass the low evidentiary threshold, it is rebutted by the evidence provided by the applicants.

Legal Principles

[7] Rule 75 governs contentious estate proceedings. Rule 75.01 states:

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.

[8] Rule 75.06 deals with an application or motion for directions. It states:

(1) Any person who appears to have a financial interest in an estate may apply for directions, or move for directions in any other proceeding under this Rule as to the procedure for bringing any matter before the court.

(2) 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 (Form 75.7); that an estate trustee be appointed during litigation , and file such security as the court directs;

[9] The motion for directions is brought by Kathleen who clearly has a financial interest in Mr. McBeath’s Estate. If the March 25, 2015 Will is invalid, Jane would have a quarter interest in the residue under the previous Will. Thus, she also has a financial interest in an estate: Joma v. Palma Estate, 2019 ONSC 5280, at paras. 6 and 8.

[10] The issues on this motion are whether Jane has met the minimum evidentiary burden necessary for the court to direct that the Will be proven in solemn form and, if so, have the applicants successfully answered that evidence?

[11] The leading case is Neuberger v. York, 2016 ONCA 191. The following principles are set out in that decision:

1. The jurisdiction to deal with probate matters now lies with the Superior Court of Justice (para. 67);

2. The court’s jurisdiction in probate matters is inquisitorial. It is the court’s function and obligation to ascertain and pronounce what documents constitute the testator’s last will and are to be probated (para. 68);

3. Granting probate operates in rem. It binds not only the parties to the proceeding and can affect the rights of others (para. 68);

4. The court has a special responsibility to the testator who cannot be present to testify to his or her true intentions(para.68);

5. Proving a will in solemn form requires the person putting forward the will to prove in open court that the will was duly executed, the testator had testamentary capacity, and the testator had knowledge of and approved the contents of the will (para. 77);

6. The person propounding the will has the legal burden of proof with respect to due execution, knowledge and approval, and testamentary capacity. Once the will is proven to have been executed with the required formalities, there is a rebuttable presumption of testamentary capacity, knowledge and approval (para. 78);

7. That presumption casts the burden on those challenging the will to provide evidence of “suspicious circumstances” – evidence, that if accepted, tends to negative testamentary capacity, knowledge and approval. If such evidence is adduced, the burden reverts to the person propounding the will (para. 78); and

8. If undue influence is alleged, however, the burden is on those attacking the will (para. 78);

9. An interested party does not have an absolute right to require proof in solemn form. The court has a discretion whether to order that a testamentary instrument be proved and the process to be followed to do so (para. 87).

[12] At para. 89, Justice Gillese wrote:

89. 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.

[13] The above quoted passage contemplates the usual situation where the person objecting to the will is the moving party or applicant. In this case, the moving parties are the propounders of the will. There is no magic to who applies. There may be good reason for the propounder of the will to be the moving party, eg. the objector is dragging his or her feet and is content to simply delay the process indefinitely. The legal burdens described by Justice Gillese apply to objector and propounder regardless who is the moving party.

[14] What is the minimal evidentiary threshold to be met by the objector to the will? Bald allegations and mere suspicion are not enough: Naismith .v. Clarke, 2019 ONSC 5280, at para. 20; Maloney Estate v. Maloney, 2019 ONSC 5632, at paras. 19, 23, and 24; Seepa v. Seepa, 2017 ONSC 5368, at para. 27.

[15] The objector (Jane) must adduce and/or point to evidence that, if believed, would call into question the validity of the will. This is sometimes referred to as suspicious circumstances. There must be an air of reality to the allegations.

Analysis

[16] Jane contests the validity of the March 25, 2015 Will based on lack of testamentary capacity and undue influence. In her affidavit, Jane deposed, inter alia:

Para. 4 – She was told by her father that he was dividing his estate equally between his children. She considered that to be a promise to her that she relied upon in ordering her personal and family financial affairs.

Para. 6 – The abrupt change to her father’s Will “occurred as a result of the undue influence that my sister Kathleen exerted on my father, as well as his lack of testamentary capacity”.

Para. 10 – She taped a telephone conversation with her father concerning who should be the trustee of Henson Trust for Laurie that occurred roughly two months before he changed his Will because of her father’s failing memory.

Para. 11 – She continued to have regular visits with her father up to 2019.

Para. 18 – According to the list of assets of the Estate, her father held a mortgage for Kathleen’s home in the amount of $256,600 and for Kathleen’s daughter and son-in-law of $187,110.

Para. 42 – “When Laurie began to live with Kathleen in late February of 2015, Kathleen was angry with me and it is my belief that she, along with my sister Mary, exerted undue influence on my father to change his will to exclude me. There could be no other reason to exclude me other than anger which was fostered by Kathleen and Mary. At the time my father was 90 years of age and depended on Kathleen. They lived in close proximity. My father was dependent upon her because of this proximity, and she was in a position of power and control over my father.”

The above paragraphs contain the substance of the allegations of incapacity and undue influence.

[17] The allegation by Jane of testamentary incapacity is baldly stated. Mr. McBeath was 90 years old when he signed his Will but there is no evidence that Mr. McBeath suffered from any medical health issues at the time the Will was made that would impair his capacity to make the Will. There is no evidence that he was on medications that would impair his capacity.

[18] Attached to Jane’s affidavit is the transcription of her telephone call with Mr. McBeath which she recorded because of his allegedly failing memory. I have carefully reviewed that transcript. It does not corroborate any memory issues or lack of capacity; to the contrary, Mr. McBeath was able to comprehend and participate fully in their conversation. He strikes me as intelligent and competent in his responses to Jane’s suggestions. The transcript reveals an alert, cogent, thoughtful man who was not easily swayed by Jane’s views regarding Laurie.

[19] I am mindful that in this case, no documentary production has yet occurred. No evidence is proffered from treating medical professionals concerning Mr. McBeath’s health and mental acuity. There is no evidence from the lawyer who prepared the will. Nonetheless, there is simply no evidence that Mr. McBeath lacked testamentary capacity beyond the bald allegations made by Jane.

[20] Further, the evidence filed on behalf of the applicants shows that until shortly before he died in 2019, Mr. McBeath lived independently. He still drove. He was still teaching bag pipe lessons in 2015. Affidavits were filed from Mr. McBeath’s long-time neighbours: Robert and Elaine Godfree. The affidavit of Mr. Godfree is especially compelling. Mr. Godfree deposed that:

2. Prior to his passing, I had the privilege of knowing Wilson McBeath for approximately twenty-five years. Throughout those years our relationship was unique in many ways. We discussed a multitude of different things from dealing with personal issues to current events, politics and entertainment.

3. On occasion, during our talks and games of cribbage (which he most often won), thoughts would be exchanged over problems that I might have, or had met at the time or previously. His thoughts and advice were always appropriate and insightful.

4. In my opinion, neither his reasoning power or his attitudes changed over the years. Prior to his passing I did not find any waning of Wilson's reasoning or ability to make sensible decisions. Thus, I looked upon Wilson as my father figure in my old age.

5. If I reach Wilson's age, I hope I am as intellectually fit and capable of directing my life as was Wilson.

[21] The respondent objects to the admission of the affidavits of Mr. Mrs. Godfree as improper reply evidence. I disagree. The evidence is independent evidence directly responsive to Jane’s allegation that Mr. McBeath lacked testamentary capacity, was dependent on Kathleen, and changed his Will because of undue influence by Kathleen and Mary.

[22] In the ordinary course, Jane would have brought this motion for directions and those affidavits would be part of the response to same. Jane did not bring the motion. She objected to the validity of the Will, then did nothing which forced applicants to move instead. Regardless, counsel for Jane could have asked for leave to file sur-reply evidence and did not.

[23] I find that Jane has not met the minimal evidentiary threshold to raise a doubt as to Mr. McBeath’s testamentary capacity in March 2015. Her evidence amounts to unsubstantiated bald allegations of incapacity. Even if her evidence could be stretched far enough to get over the low evidentiary bar, the evidence of the applicant and of Mr. McBeath’s former neighbours more than meets and rebuts that allegation.

[24] I turn next to the allegation of undue influence by Kathleen and/or Mary.

[25] Once again, the evidence provided by Jane is broadly stated with few specific facts provided to support the allegation made. For example, Jane alleges that her father depended on Kathleen. How? What did Kathleen do for him that evidences that dependence in March 2015?

[26] She asserts that Kathleen lived in close proximity to Mr. McBeath. That may be so, but that fact without more does not support a finding of dependence or undue influence. This is not a case where the evidence is that testator was living with his daughter or depended on her for his day to day care at the time the Will was made.

[27] Jane points to the fact that the list of Estate assets shows mortgages to Kathleen and her daughter, but her affidavit fails to indicate when these mortgages were given. No evidence is provided as to the circumstances surrounding those mortgages. Were the mortgages done at or about the same time as Mr. McBeath did his Will? Was the lawyer who acted on those transactions and his latest Will the same or a different lawyer than he usually used? Was the lawyer who did the 2015 Will someone used by Kathleen in the past? That information is publicly available from a search of title but none of that information is provided.

[28] Further, the evidence filed indicates that Mr. McBeath loaned money to Jane and her husband for bridge financing in the past. Thus, lending money to his children on favourable terms was not something unheard of in the McBeath family.

[29] Finally, Jane asserts that the sudden and unexpected change of Mr. McBeath’s Will followed a family conflict involving Laurie; that Kathleen was angry with her and together with Mary, influenced their father to cut Jane and her children from the Will.

[30] There is evidence of a family conflict shortly before the Will was changed. It is common ground that in early 2015, Laurie was staying with Jane and her husband in Quebec where they lived. Kathleen and Mr. McBeath drove to Jane’s home to retrieve Laurie and her belongings. There are differing versions between Kathleen and Jane as to what transpired to lead to that trip and what happened when Kathleen and Mr. McBeath came to Jane’s house.

[31] It is Jane’s position that afterward, Kathleen was angry with her; that she exerted undue influence on Mr. McBeath to change his Will because of that anger. She points to a letter by Kathleen in early June 2015, shortly after the Will was made, in which Kathleen told Jane not to come onto Kathleen’s property or she would be trespassing. Kathleen offers an explanation for that letter that is entirely unrelated to the incident in Quebec.

[32] There is no evidence of direct influence exerted by Kathleen or Mary. There is no evidence of historic undue influence by Kathleen before March 2015. Even Jane only says that she believes that they did so. She cannot point to any evidence to support same. She does not say, for example, when I spoke with my father, he told me they were pressuring him to change his Will or he told me things that they were saying to him that poisoned my relationship with him.

[33] I observe that at para. 11 of her affidavit, Jane indicated that she continued to have regular visits with her father until 2019. She provided no details of those alleged visits. There is no evidence of how those alleged visits went. Much of the evidence provided by Jane concerning her relationship with her father and mother including supporting exhibits pre-date March 2015.

[34] The evidence of the history of Jane’s relationship with Mr. McBeath and her mother by both sides is of little assistance in determining whether the minimal evidentiary threshold has been reached with respect to undue influence. What is clear is that until March 25, 2015, Jane was treated the same as her sisters in Mr. McBeath’s estate planning. That changed soon after the incident in Quebec. Mr. McBeath told his neighbour and friend that Jane was no longer his daughter. His Will reflects that.

[35] I am not satisfied that Jane has provided even a minimum evidentiary basis from which a court could infer that Jane’s exclusion from her father’s March 25, 2015 Will was caused by undue influence from any source. There are no “suspicious circumstances”. The evidence provided by Jane amounts to little more than speculation.

[36] Counsel for Jane submitted that the failure of the applicants to produce and provide any medical evidence or evidence from the lawyer who prepared the Will is telling and I should infer from that omission that there may be evidence helpful to Jane’s claim. I am not prepared to draw that inference. In Seepa, Justice Myers wrote at para. 28:

[28] …There is something innately offensive about the idea that an excluded relative can simply romp through a testator’s most private legal and health information fishing for evidence on making the most meager of allegations of impropriety on no real evidence.

That is precisely what an order to prove the Will in solemn form would amount to in these circumstances.

[37] The cases cited and relied upon by counsel for Jane are helpful for the principles cited and the approach taken by the court but are factually distinguishable. In Naismith, the testator had lived with her son for 12 years. He took care of her. She was entirely dependent on him.

[38] In Joma, the testator lost three close family members in less than a year. She was prescribed medication to cope with those losses. She said the medications were to “tranquilize her”. The primary beneficiary was involved in the financial management of her assets before she died.

[39] In Maloney Estate, evidence was provided by the lawyer who prepared the will. The objection was rejected for lack of evidence as to the invalidity of the will. At its highest, the objector could only say that she did not believe her father would have drafted his will in that way. The evidence in Maloney Estate was even more tenuous than here and rebutted by the lawyer who drafted the will in question.

[40] For the reasons above, I am not satisfied that the applicants should have to prove the Will of Mr. McBeath in solemn form. They should proceed to probate.

[41] If the parties cannot agree on costs, they may make written submissions not exceeding three pages within 15 days hereof.

Justice R. Raikes

Date: June 23, 2021