COURT FILE NO.: CV-18-382
DATE: 20210122
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE ESTATE OF James Douglas Foote, also known as Douglas James Smith, deceased
BETWEEN:
Ontario Conference of the Seventh-day Adventist Church
Applicant
– and –
Librana Daqa also known as Lee Daqat, Larry Tait, Roy Thomson, Karl Nicol, Udo Muller, Ned Lofton, Larz Muller, Karsten Muller, William Donald, Ellen Donald, Peter Hallman, The Billy Graham Evangelistic Association of Canada, Jean Davis and Roswitha Muller
Respondents
K. Juriansz, for the applicant
T. Law and A. Mazzotta, for the respondent Librana Daqa
HEARD: December 1, 2020
leitch j.
[1] The applicant, Ontario Conference of the Seventh-day Adventist Church (“Ontario Conference”), seeks:
an order that a will dated June 14, 2015 is not the valid last will of the deceased;
an order that a will dated December 22, 2014 is the valid last will of the deceased and that the Certificate of Appointment of Estate Trustee with a Will shall issue in relation to the estate trustee named therein, being Ontario Conference, upon submission of the usual documentation; and
an order that costs of this application shall be paid by the estate on a full indemnity basis, including all applicable taxes, and that the respondent, Librana Daqa also known as Lee Daqat (“Ms. Daqa”), pay costs, on a substantial indemnity basis, to the estate.
[2] The position of Ontario Conference is that Ms. Daqa cannot prove that the will dated June 14, 2015 was duly executed with the required formalities and/or that “suspicious circumstances” were present, thereby requiring Ms. Daqa to prove on a balance of probabilities that the deceased possessed testamentary capacity and that he had knowledge of, and approved of, the contents of the will. Ontario Conference contends that Ms. Daqa cannot meet her evidentiary burden. Ontario Conference also posits that the deceased was subject to the undue influence of Ms. Daqa when the June 14, 2015 will was executed.
[3] The position of Ms. Daqa is that the June 14, 2015 will should be declared the valid last will and testament of the deceased. She relies significantly on the findings of Terry Thompson (“Mr. Thompson”), a lawyer who met with the deceased in July 2015, and the actions of the deceased’s attorney, Udo Muller (“Mr. Muller”), and the deceased’s former lawyer, C. Vitsentzatos (“Mr. Vitsentzatos”). Her position is succinctly summarized in the last paragraph of the overview in her factum as follows:
When Muller learned of the existence of a new will in late August 2015, he arranged to have Smith [the deceased] meet with lawyer Vitsentzatos, who had prepared a December 2014 will for Smith. During subsequent meetings with Vitsentzatos in September and October 2015 Vitsentzatos concluded that Smith had the capacity to revoke prior wills. Despite the existence of third party evidence – from two lawyers and Muller – that Smith had capacity in July, September and October 2015 and no evidence to the effect that he did not have that capacity on June 14, 2015, the applicant takes the position in this proceeding that the June 14, 2015 will is not valid and seeks an order of the court finding that the December 2014 will is the one which should govern the distribution of Smith’s estate.
Facts
[4] The deceased was a parishioner of Woodstock Seventh-day Adventist Church for approximately 20 years.
[5] The deceased and Mr. Muller were personal friends for approximately 30 years. The deceased originally appointed Mr. Muller as his attorney for property and personal care as described below.
[6] Ms. Daqa was the deceased’s immediate neighbour.
[7] Ms. Daqa first became acquainted with the deceased in the summer or fall of 2011 when the deceased, who was born July 12, 1925, was 86 years of age and Ms. Daqa, who was born September 30, 1951, was 60 years of age.
[8] In May or June 2012, Ms. Daqa, as a friend of the deceased, began assisting him with household tasks and meals. Ms. Daqa was not paid for these services.
[9] The deceased executed a will on December 22, 2014 in the circumstances described below.
[10] On January 9, 2015, the deceased was admitted to the hospital after falling in Ms. Daqa’s home.
[11] On his discharge from the hospital, the deceased required care. Mr. Muller, as the deceased’s attorney for property and personal care, hired Ms. Daqa to provide personal caregiving services to the deceased. The deceased began living with Ms. Daqa in late January or early February 2015.
[12] In the circumstances described below, the deceased executed a will on June 14, 2015 and granted a new power of attorney in favour of Ms. Daqa.
[13] Thereafter, Ms. Daqa arranged for the deceased to see a lawyer, Mr. Thompson, on July 29, 2015. At that time, Mr. Thompson concluded the deceased did not have testamentary capacity but did have capacity to grant powers of attorney for personal care and property. The deceased executed the two Powers of Attorney in favour of Mr. Muller and Ms. Daqa jointly and severally on July 29, 2015.
[14] On October 30, 2015, the deceased was again admitted to hospital following a fall. On February 17, 2016, the deceased was transferred to Spruce Lodge Long Term Care Home, where he resided until his death on September 23, 2017 at the age of 92.
Relevant law re: the validity of a will
[15] In relation to the formal requirements for the validity of a will, s. 3 and 4 of the Succession Law Reform Act, R.S.O. 1990, c. S.26, s. 3 and 4 provides as follows:
3 A will is valid only when it is in writing.
4 (1) Subject to sections 5 and 6, a will is not valid unless,
(a) at its end it is signed by the testator or by some other person in his or her presence and by his or her direction;
(b) the testator makes or acknowledges the signature in the presence of two or more attesting witnesses present at the same time; and
(c) two or more of the attesting witnesses subscribe the will in the presence of the testator.
(2) Where witnesses are required by this section, no form of attestation is necessary.
[16] In situations where both persons who witnessed the testator’s signature on the will cannot be located or have predeceased the testator, and evidence of execution cannot be obtained, the will must be proved in solemn form.
[17] The legal framework governing the application was recently set out by the Court of Appeal for Ontario in Dujardin v. Dujardin Estate, 2018 ONCA 597, 423 D.L.R. (4th) 731, at paras. 43-45 as follows:
43 Instead of traveling back through the mists of time, drawing upon age-old common law authorities on testamentary capacity, I start with the recent decision of this court in Neuberger v. York, 2016 ONCA 191, 129 O.R. (3d) 721. In this decision, Gillese J.A. provides a helpful outline of what is required to prove a will, at para. 77:
Proving a will in solemn form requires the propounder of a will to prove, in open court upon notice to all parties having a financial interest in the estate, that the will was duly executed, the testator had testamentary capacity and that the testator had knowledge and approval of the contents of the will: R. Hull & I. Hull, Macdonell, Sheard and Hull on Probate Practice, 4th ed., (Toronto: Carswell, 1996), at p. 315.
See also Brian A. Schnurr, Estate Litigation, 2d ed., vol. 1 (Toronto: Thomson Reuters, 2017), at pp. 2-1 to 2-6.
44 The propounder of a will has the onus of proving that it was properly executed, in accordance with the Succession Law Reform Act, R.S.O. 1990, c. S. 26 (“SLRA”), and also that the testator knew and approved of its contents: see Vout v. Hay, 1995 CanLII 105 (SCC), [1995] 2 S.C.R. 876, at para. 19. Upon certain preconditions being met, the propounder benefits from a presumption of knowledge and approval, as well as testamentary capacity. As Sopinka J. explained, at para. 26:
Upon proof that the will was duly executed with the requisite formalities and having been read over to or by a testator who appeared to understand it, it will generally be presumed that the testator knew and approved of the contents and had the necessary testamentary capacity.
45 This presumption is upended when there are suspicious circumstances (1) surrounding the preparation of the will, (2) calling into question the testator’s capacity, or (3) tending to show that the testator’s free will was compromised by coercion or fraud. As Sopinka J. said, at paras. 26-27:
Suspicious circumstances in any of the three categories to which I refer above will affect the burden of proof with respect to knowledge and approval. The burden with respect to testamentary capacity will be affected as well if the circumstances reflect on the mental capacity of the testator to make a will.
Where suspicious circumstances are present, then the presumption is spent and the propounder of the will reassumes the legal burden of proving knowledge and approval. In addition, if the suspicious circumstances relate to mental capacity, the propounder of the will reassumes the legal burden of establishing testamentary capacity. Both of these issues must be proved in accordance with the civil standard. There is nothing mysterious about the role of suspicious circumstances in this respect. The presumption simply casts an evidentiary burden on those attacking the will. This burden can be satisfied by adducing or pointing to some evidence which, if accepted, would tend to negative knowledge and approval or testamentary capacity. In this event, the legal burden reverts to the propounder.
[Emphasis in original.]
Relevant law re: testamentary capacity
[18] The jurisprudence in this area consistently includes reference to the guidance outlined by the Ontario Court of Appeal in Hall v. Bennett Estate, 2003 CanLII 7157 (ON CA), 2003 CarswellOnt 1730 (Ont. C.A.) where Rand J., for the majority, stated at para. 14:
Numerous cases have dealt with the question of testamentary capacity. It has often been repeated that a testator must have “a sound disposing mind” to make a valid will. The following requirements can be extricated from the case law. In order to have a sound disposing mind, a testator:
• must understand the nature and effect of a will,
• must recollect the nature and extent of his or her property,
• must understand the extent of what he or she is giving under the will,
• must remember the persons that he or she might be expected to benefit under his or her will, and
• where applicable, must understand the nature of the claims that may be made by persons he or she is excluding from the will.
It is also clear from the jurisprudence that the test to be met to prove testamentary capacity is a high one…. The jurisprudence abounds with statements that it is not sufficient simply to show that a testator had the capacity to communicate his or her testamentary wishes. Those wishes must be shown to be the product of a sound and disposing mind as described above.”
Relevant law re: granting continuing power of attorney
[19] Section 8 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30 sets out the requirements for a person to have the capacity to give and to revoke a continuing power of attorney as follows:
8 (1) A person is capable of giving a continuing power of attorney is he or she,
(a) knows what kind of property he or she has and its approximate value;
(b) is aware of obligations owed to his or her dependants;
(c) knows that the attorney will be able to do on the person’s behalf anything in respect of property that the person could do if capable, except make a will, subject to the conditions and restrictions set out in the power of attorney;
(d) knows that the attorney must account for his or her dealings with the person’s property;
(e) knows that he or she may, if capable, revoke the continuing power of attorney;
(f) appreciates that unless the attorney manages the property prudently its value may decline; and
(g) appreciates the possibility that the attorney could misuse the authority given to him or her.
8 (2) A person is capable of revoking a continuing power of attorney if he or she is capable of giving one.
The December 22, 2014 will and Powers of Attorney
[20] The December 22, 2014 will (the “December 2014 will”) was drafted by the deceased’s lawyer, Mr. Vitsentzatos.
[21] From or around September 2010 to December 22, 2014, Mr. Vitsentzatos met with the deceased on at least 6 to 10 occasions in relation to his estate planning.
[22] Mr. Vitsentzatos was examined under oath in March 2020. He explained that, during his first interview with the deceased in 2010, he undertook a comprehensive assessment of the deceased’s capacity. On each subsequent interview, Mr. Vitsentzatos conducted an abbreviated assessment.
[23] On December 22, 2014, Mr. Vitsentzatos again undertook a comprehensive assessment of the deceased’s testamentary capacity and determined that the deceased had capacity to execute the will he had prepared pursuant to the instructions of the deceased. The will was then signed by the deceased in the presence of two attesting witnesses, present at the same time: Mr. Vitsentzatos and a law clerk employed by Mr. Vitsentzatos’ brother, who was also a practicing lawyer and shared office space with Mr. Vitsentzatos.
[24] As Mr. Vitsentzatos outlined in his evidence, the December 2014 will was executed in accordance with the required formalities: specifically, the December 2014 written will was read to the deceased, line by line, by Mr. Vitsentzatos. Mr. Vitsentzatos was a “hundred percent” satisfied that the deceased understood the will. Each page of the December 2014 will that preceded the last page was initialled by the deceased and the two witnesses.
[25] Pursuant to instructions from the deceased, Mr. Vitsentzatos also drafted a Power of Attorney for Personal Care, appointing Mr. Muller and Roswitha Muller (“Ms. Muller”), jointly and severally, as attorneys and a Power of Attorney for Property appointing the Ontario Conference and Mr. Muller, jointly and severally, as attorneys. These Powers of Attorney were signed by the deceased on December 22, 2014. Again Mr. Vitsentzatos was satisfied that the deceased had the required capacity.
[26] Under the December 2014 will, the deceased made a number of specific bequests of personal items, made a bequest to Ms. Daqa of $3000, made a bequest to certain other institutions and individuals, and directed that the remaining amount of his estate be split between the Ontario Conference and the Woodstock Seventh-day Adventist Church.
[27] The December 2014 will names Ontario Conference as estate trustee.
The June 14, 2015 will and the June 14 and July 29, 2015 Powers of Attorney
[28] At paras. 19, 20, and 21of the affidavit she swore on February 13, 2019, Ms. Daqa explained how it came to be that another will was created for the deceased:
In the spring of 2015 Doug [the deceased] started to talk about making new powers of attorney and a new will. I asked him why he wanted to do this and he said it was because I was the only one who had looked after him for all these years when no one else did, not even the church or Udo Muller. He told me that I had saved his life many times. I did not tell him that I thought the change was a good idea or a bad idea as he raised the idea without me talking about it. He was clear about what he wanted to do and he insisted that he wanted to make some the [sic] changes to his previous will. He had a copy of the December 22, 2014 will and he showed it to me. I asked him what he owned because I had not seen anything but a few items of his clothing and old and broken furniture in his home. He had never worn a watch as long as I had known him and he said they were gone or in the safety deposit box. He also did not mention any records, a record player or books and magazines. Going through the will form I found on the internet, I asked Doug who he wanted to be the executor of his will and he said me and Udo Muller if I was not alive. I asked Doug about his burial and he told me that he wanted to use the part about being buried with his parents in the new will. He also told me that he wanted a funeral service at his church and so I put that in the new will as well. Doug told me what amounts of money he wanted to give to various people or organizations and I put that in the will as well.
Once I was sure that what was in the will was what Doug wanted I printed it out and gave it to Doug to read. Doug told me he was happy with what was in the will and I asked two of our neighbours that knew him, Darlene Ferris (now deceased) and her daughter Celina Brett to come and witness his signature. They came to my home on June 14, 2015 and both witnessed Doug sign the will, and then they signed the will as witnesses. I put the original with Doug’s other papers that he had in the bedroom.
To get new powers of attorney I made an appointment with a lawyer that Doug knew, Terry Thomson. Terry Thomson was not my lawyer and I never spoke to him before I made the appointment for Doug. I took Doug to see Terry Thomson on July 29, 2015 because Doug asked me to take him there. Doug took the powers of attorney that I had printed out and took them with him in to met [sic] with Terry Thomson while I waited for him in the reception area. I understood that as a result of that meeting with the lawyer, Doug had made a change so that I could act as attorney for him.
[29] The June 14, 2015 will (the “June 2015 will”) does not include bequests of the various personal assets and a small cash bequest included in the December 2014 will. It directs a specific cash bequest to the Woodstock Seventh-day Adventist Church, Mr. Muller, Ms. Muller, and another entity included in the December 2014 will. Significantly, in the June 2015 will, Ms. Daqa is named as estate trustee and is the residual beneficiary, contrary to the December 2014 will.
[30] When cross-examined on her affidavit on April 21, 2020, Ms. Daqa agreed with the proposition that the deceased was confined to a bed for the majority of the time and was “entirely dependent” on her “to see to all his needs” while she was caring for him after January 2015.
[31] In her cross-examination, Ms. Daqa acknowledged that, prior to the creation of the June 2015 will, she knew that Mr. Vitsentzatos had been consulted by the deceased and had prepared the December 2014 will. She was aware that she was a beneficiary under the December 2014 will and would receive a bequest of $3000. She was also aware that the deceased had previously granted the Powers of Attorney for Personal Care and for Property as described above.
[32] I note here that para. 21 of Ms. Daqa’s affidavit indicates that, until the deceased met with Mr. Thompson and “made a change,” she could not act as attorney for the deceased.
[33] This statement ignores the fact that, while the deceased was in her care, Ms. Daqa used the deceased’s bank card to access his accounts, did not keep track of cash that she removed from his accounts, and did not keep any receipts in relation to any expenditures she made with the deceased’s money. She herself acknowledged this in cross-examination. She also acknowledged that she used the deceased’s money to purchase clothes for herself, cat food for her 10 cats, kitty litter, dog food, cigarettes, alcohol, and gas. She indicated that the deceased had given her permission to make those purchases and that, every time she asked him for permission to make purchases, he always authorized her to proceed.
[34] Ms. Daqa’s cross-examination also revealed that she withdrew fairly significant amounts of cash from his accounts and paid her dental bill and the debts she owed to the Canada Revenue Agency with the deceased’s money.
[35] Ms. Daqa also acknowledged that she redeemed a significant investment of the deceased, which was her idea, and closed the deceased’s U.S. dollar account. However, Ms. Daqa noted that she had done this with the deceased’s authorization. Her affidavit made reference to these transactions and she deposed that all of the funds were ultimately transferred into an account of the deceased. However, $10,000 cannot be accounted for. On her cross-examination, she acknowledged that she transferred $11,700 into her own account, which she indicated she did with the deceased’s permission.
[36] The following exchange took place at question 470 of her cross-examination:
Q. I didn’t ask you that. I ask you, did you think it was right, you have a man who is, at this point in time, I guess he’s 89, is he? Or 89 or 90, and you are using his money for your own purposes, is that correct? And you thought that was fine?
A. With his permission, yes, it was fine.
[37] Ms. Daqa acknowledged that she had access to five bank accounts of the deceased, that she was the only person in possession of his debit cards, passwords, and PIN numbers, and that she made all point-of-sale purchases, online purchases, and withdrawals from those accounts. Ontario Conference described the records in relation to these accounts as revealing a significant change in spending habits and cash withdrawals after the deceased came into Ms. Daqa’s care. In the 13 month period from mid-November 2013 to December 31, 2014, there were no retail purchases from the deceased’s bank accounts and only $6100 was withdrawn over this time period – that is an average of $470/month. In contrast, from January 2015 to August 4, 2015, point-of-sale purchases and withdrawals totalled $19,966 – an average of $2,495/month.
[38] When Mr. Thompson was examined under oath on January 7, 2020, he confirmed that he met with the deceased on July 29, 2015. He stated that he had never met or spoken to the deceased prior to that day. The deceased arrived at Mr. Thompson’s office with Ms. Daqa and Mr. Thompson met privately with the deceased to obtain his instructions with respect to a new will. As Mr. Thompson described in his response to question 80 about the deceased’s instructions:
All the while he was looking at this old will [the June 2015 will] and going through that and using that to assist him in giving me instructions. He seemed to be using the old will to give me instructions on his, how he wanted to, to devise his will or who would be beneficiary and how much in his new will.
[39] When asked whether there were any red flags raised by the fact that the deceased wanted to have a will prepared that was identical to a previous will, Mr. Thompson responded that he “had some difficulty to get him [the deceased] to come to a point about what he wanted to do and he [the deceased] seemed more concerned about where he was going to be buried… he was looking at… the old will as a guideline to what he wanted to do and he kept saying I want Udo to be in charge, which meant Udo Muller, and I know Mr. Muller.” Mr. Thompson went on to say that the deceased’s instructions regarding his will were not very clear. Mr. Thompson ultimately concluded that the deceased did not have the ability to understand a will and was not competent to sign a will.
[40] When examined, Mr. Thompson revealed that the deceased had signed a continuing Power of Attorney for Property and a Power of Attorney for Care on June 14, 2015 in favour of Ms. Daqa. Copies of these Powers of Attorney, as well as the June 2015 will, were given to Mr. Thompson on July 29, 2015. These Powers of Attorney had never been disclosed by Ms. Daqa prior to, or during, this proceeding and they were never referenced in her affidavit documents either.
[41] On cross-examination, the following was suggested to Ms. Daqa at question 746:
Q. Isn’t it true you already were attorney for property and attorney for personal care for Doug when you went to Terry Thompson? Isn’t it true?
A. Yes, I think so, but I just wanted to make sure that everything was legal and right because I don’t know about stuff like this.
[42] Ms. Daqa indicated on her cross-examination that she had obtained the Power of Attorney forms online and filled them out and the deceased had signed them.
[43] In relation to the Power of Attorneys, Mr. Thompson indicated that the deceased first indicated that he wanted Ms. Daqa to act as his attorney with Mr. Muller as the alternate. However, the deceased subsequently changed his mind and indicated that he wanted both of them to be his attorneys jointly and severally.
[44] Mr. Thompson reiterated at question 95 that, while the deceased’s “original instructions were to have Ms. Daqa and then Udo Muller as the alternate[,] … he [later] said no, I want Udo to be involved in my care… I remember telling him I support that because it’s good to have two people, especially when you have somebody you trust like Udo Muller, to be involved with your care and your finances.”
[45] In their meeting on July 29, 2015, Mr. Thompson concluded that the deceased had sufficient comprehension to sign the Powers of Attorney. The deceased signed a Power of Attorney for Personal Care and a continuing Power of Attorney for Property on July 29, 2015 in favour of Ms. Daqa and Udo Muller jointly and severally.
[46] In her cross-examination, Ms. Daqa acknowledged that, at the time of the events, she did not tell Mr. Muller that she had obtained a will kit for the deceased, prepared a will for him, and had him sign it. When Ms. Daqa was asked in cross-examination, at question 823, why she had not advised Mr. Muller of this, she responded, “Why should I?” When she was asked to respond to the question, she stated that it was “because I didn’t think it was Udo Muller’s business.”
[47] Similarly, Ms. Daqa did not advise Mr. Muller that the deceased met with Mr. Thompson nor did she immediately inform him of the Powers of Attorney signed on July 29, 2015.
[48] In August 2015, Mr. Muller became aware that there was a new will but believed it had been prepared by Mr. Thompson. He indicated in his affidavit, sworn on September 13, 2018, that, when he visited the deceased in early August 2015 to discuss the sale of his mobile home, Ms. Daqa “interrupted” him and advised she had already sold the home. As Mr. Muller outlined in paras. 14 and 15 of his affidavit:
I was confused, not understanding how this was possible. Ms. Daqa then informed me that on July 29, 2015, Doug had gone to her lawyer, Mr. Terry W. Thompson (“Mr. Thompson”) of the law firm of Nesbitt Coulter, and changed his Powers of Attorney for Property and Personal Care, naming Ms. Daqa as his Attorney instead.
I was also advised by Ms. Daqa on this occasion that Doug had also executed a new Will with Mr. Thompson, appointing Ms. Daqa as his Executor.
[49] With respect to the sale of the deceased’s mobile home, Mr. Muller became aware that part of the purchase price remained unpaid. It was agreed that Ms. Daqa could retain that money once paid and that that amount would be deducted from her bequest under the December 2014 will. I note also that, when Mr. Muller confronted Ms. Daqa in the latter part of 2015 about using the deceased funds to pay her debt to the Canada Revenue agency, she signed a written agreement on January 6, 2016 agreeing to having both of these amounts deducted from her bequest under the December 2014 will.
[50] In September 2015, when Mr. Muller became concerned about transfers from the deceased’s bank account, Ms. Daqa provided him with the Powers of Attorney the deceased had executed on July 29, 2015.
[51] The record included a note dated September 11, 2015 from Dr. Mayberry, the deceased’s physician since 1980, who stated that he had had “regular contact” with the deceased throughout the time he had known him and that, in his opinion, the deceased “has been intellectually declining over the past few years to the point that when he was admitted to hospital January 9, 2015 he would not have been able (and is still not able) to competently manage his personal affairs (financial) and make decisions about his personal health. He requires others to make such decisions on his behalf for his own welfare.”
[52] The record also included revocations signed by the deceased on September 8, 2015 directed to “whom it may concern” indicating that he thereby revoked his will and Powers of Attorney for Property signed July 29, 2015. The record also included another revocation dated October 31, 2015 to the same effect.
[53] Mr. Muller and the deceased met with Mr. Vitsentzatos on September 8 and October 31, 2015. As Mr. Muller explained at para. 29 of his affidavit:
Both before and after Dr. Mayberry’s medical opinion, Doug and I attended at the office of Mr. Vitsentzatos at which time Doug executed Revocations of his July 2015 Powers of Attorney as well as his Will, which we believed at that time had been executed before Mr. Thompson on the same date, despite Mr. Thompson’s denial of same. It should be noted that the Will had not been produced at that time and it was therefore incorrectly referenced in the Revocation as a Will dated July 29, 2015. In fact, Doug did not have a Will executed on that date. However, we were unaware of this at the time that the Revocations were executed. Attached hereto and marked collectively as Exhibit “H” are true copies of two Revocations executed by Doug on September 8, 2015 and again on October 31, 2015, while Doug was in hospital. I do verily believe that as a result of Doug’s impaired mental capacity, the Revocations are invalid and unenforceable.
Can the June 14, 2015 will be propounded?
[54] According to Vout v. Hay, 1995 CanLII 105 (SCC), [1995] 2 S.C.R. 876 [Vout], the propounder of a will has the onus of proof with respect to due execution of the will, knowledge and approval, and testamentary capacity. When it is proved that the will was duly executed with the required formalities, after having been read over to or by a testator who appears to understand it, then a rebuttable presumption arises that the testator knew and approved of the contents of the will and had the necessary testamentary capacity.
[55] Counsel for Ontario Conference takes the position that Ms. Daqa cannot prove the due execution of the June 2015 will, noting that there are no affidavits of execution from either witness. Therefore, Ms. Daqa must prove the will in solemn form, but she has failed to do so.
[56] While counsel for Ms. Daqa contends that this issue was not raised in the Notice of Application, I agree with counsel for Ontario Conference that para. 1 of the Application, which seeks the opinion, advice, or directions from the court with respect to “issues that have been raised relating to the validity of powers of attorney, wills and other testamentary documents executed by the deceased… on or after January 1, 2015,” incapsulates this issue.
[57] As noted by counsel for Ontario Conference, Ms. Daqa’s evidence with respect to the creation and execution of the June 2015 will is limited to what she indicated in para. 20 of her affidavit, as set out above. She does not provide any proof of death for one of the witnesses and does outline any efforts to obtain an affidavit of execution from the other witness. As a result, Ontario Conference asks that I infer, from the failure of Ms. Daqa to locate the only living witness to the June 2015 will, that the evidence of that witness would not support her position that the deceased knew what he was signing. I am prepared to draw such an inference in these circumstances since Ms. Daqa has not explained why there is no affidavit of execution from at least one of the witnesses, both of whom she procured to act in that capacity, as that individual has information that is significant to the matters before the court.
[58] Furthermore, Ms. Daqa does not provide any evidence of due execution for the June 2015 will, as required by r. 74.04(c)(ii), if each of the witnesses to the will have died or “cannot be found.” Instead, Ms. Daqa’s counsel points to para. 30 of Mr. Muller’s affidavit and his and Mr. Vitsentzatos’ actions, once they were told the deceased had signed a will in 2015, as support for their position that such will was duly executed by the deceased.
[59] In para. 30 of his affidavit Mr. Muller states as follows:
On September 9, 2015, Mr. Vitsentzatos wrote to Mr. Thompson requesting copies of Doug’s Last Will and Testament. Attached hereto and marked Exhibit “I” is a true copy of Mr. Vitsentzatos’ letter. In response, Mr. Thompson forwarded to Mr. Vitsentzatos a copy of Doug’s Will in his possession. The Will appears to be one which can be downloaded on the Internet or purchased at a store and I verily believe that Ms. Daqa completed this Will and attended upon Doug’s execution of same on June 14, 2015. Attached hereto and marked Exhibit “J” is a true copy of the June 2015 Will (“June 2015 Will”). The June 2015 Will names Ms. Daqa as Doug’s Executor and leaves the bulk of the Estate to Ms. Daqa.
[60] I do not accept the argument made on Ms. Daqa’s behalf, at para. 51 of her factum, that para. 30 of Mr. Muller’s affidavit and the actions of Mr. Muller and Mr. Vitsentzatos, which resulted in the deceased signing two revocations in September and October 2015, support a finding that “Muller acknowledged and accepted that the June 14, 2015 will had in fact been executed by Smith.”
[61] I therefore find that it has not been proven that the June 2015 will was duly executed with the required formalities, after having been read over to, or by, a testator who appears to understand it. Therefore, the rebuttable presumption that the deceased knew and approved of the contents of the will and had the necessary testamentary capacity does not arise.
[62] Furthermore, and in any event, the rebuttable presumption of knowledge, approval, and testamentary capacity is not effective when suspicious circumstances are present. As earlier referenced, in Vout at para. 25, the court held that suspicious circumstances may be raised by:
- circumstances surrounding the preparation of the will;
- circumstances that tend to call into question the capacity of the testator; or
- circumstances tending to show that the free will of the testator was overborne by acts of coercion or fraud.
[63] I find that such suspicious circumstances exist here. In relation to the preparation of the will, the fact that the deceased raised the idea of a new will with Ms. Daqa, and asked her to prepare a new will, six months after he had finalized a will in the office of his lawyer is suspicious. Similarly, the fact that Ms. Daqa took it upon herself to draft the will, which significantly increases her share in the estate and her role in the estate’s administration, is suspicious.
[64] In Ostrander v. Black (1996), 12 E.T.R. (2d) 219 (Ont. C.J. (Gen. Div.)), the court outlined a number of factors which made the circumstances surrounding the testator’s capacity in that case suspicious. Many of these factors exist here. At the time the June 2015 will was signed, the deceased was 90 years of age. He was isolated from others and lived with Ms. Daqa. He was entirely dependent on Ms. Daqa. Again, I note that Ms. Daqa drafted the will she now seeks to propound. She became the residual beneficiary of the deceased’s estate – a marked contrast from the $3000 bequest she was aware of under the December 2014 will. Ms. Daqa arranged for witnesses of execution, but neither of whom have sworn affidavits of execution in this proceeding. Ms. Daqa was present when the will was purportedly signed by the elderly person entirely dependent on her.
[65] Considering the isolation of the deceased and his dependency on Ms. Daqa, how and when the will was created and the contents of the will, I also find that there were circumstances that tend to show that the deceased was subject to Ms. Daqa’s coercion.
[66] Compounding these circumstances is the fact that Ms. Daqa obtained the Powers of Attorney solely in her own favour at the same time as the June 2015 will was created, that she did not disclose those Powers of Attorney at the time, and that those Powers of Attorney only came to light when Mr. Thompson was examined. In addition, Ms. Daqa accessed the deceased accounts, did not keep receipts, made no effort to maintain any type of accounting, and acknowledged that she used his funds for her own purposes. As earlier referenced, the record indicates that, unbeknownst to anyone else, Ms. Daqa made substantial pre-death transfers of wealth from the deceased’s accounts. Also as described above, Ms. Daqa acknowledged in 2015 and signed an agreement in 2016, when Mr. Muller learned of certain improprieties, that she would make repayments from her bequest under the December 2014 will. The fact that, as late as January 2016, Ms. Daqa signed an agreement referencing her bequest under a will, which she now asserts was revoked by a will she created, is another suspicious circumstance. Ms. Daqa did not disclose when the deceased was alive that her bequest under the will she created far exceeded her bequest under the December 2014 will.
[67] Of lesser import, but still worth noting, is that Ms. Daqa displayed little regard for the deceased after he left her home. She visited him only once, had no telephone contact with him, and did not attend his funeral. In her affidavit, she explained that she was exhausted, depressed, and anxious in the weeks before he left, that she does not like hospitals, and that she does not go to funerals. Nevertheless, this course of conduct seems inconsistent with her description of her important role in the deceased’s life which, at para. 19 of her affidavit, she offered as an explanation of the deceased’s wish to change his will to make her his residual beneficiary.
[68] As a result of finding suspicious circumstances surrounding the preparation of the June 2015 will, circumstances that tend to call into question the capacity of the deceased, and circumstances tending to show that the free will of the testator was overborne by acts of coercion, I conclude that Ms. Daqa must prove on the balance of probabilities that the deceased had knowledge of, and approved of, the contents of the will and possessed testamentary capacity to do so. As the propounder of the June 2015 will, Ms. Daqa must adduce evidence to prove the presence of knowledge, approval, and testamentary capacity.
[69] At para. 25 of Vout, the Supreme Court of Canada approved the statements made in Re Martin; MacGregor v. Ryan, 1965 CanLII 17 (SCC), [1965] S.C.R. 757, at p. 766, which stated,
The extent of the proof required is proportionate to the gravity of the suspicion and the degree of suspicion varies with the circumstances of each case.
[70] It is important to note that the Evidence Act, R.S.O. 1990, c. E.23, s. 13 provides as follows:
In an action by or against the heirs, next of kin, executors, administrators or assigns of a deceased person, an opposite or interested party shall not obtain a verdict, judgment or decision on his or her own evidence in respect of any matter occurring before the death of the deceased person, unless such evidence is corroborated by some other material evidence.
[71] Applying this rule of evidence on this application is consistent with the Court of Appeal’s commentary in Brisco Estate v. Canadian Premier Life Insurance Co., 2012 ONCA 854, 82 E.T.R. (3d) 211.
[72] One could argue that the fact that Ms. Daqa made an appointment for the deceased to see Mr. Thompson to prepare a new will reflected her concern that the June 2015 will was not valid. Counsel for Ontario Conference also argues that the fact that Ms. Daqa kept the June 2015 will secret while the deceased was alive suggests that she had concerns about its validity.
[73] However, the issue is whether there is evidence proving the presence of knowledge, approval, and testamentary capacity.
[74] Ms. Daqa’s evidence that the deceased raised the idea of a new will, gave her instructions to prepare it, and read and approved of what she prepared is not enough to satisfy her evidentiary burden with respect to knowledge and approval.
[75] I reach the same conclusion in relation to the deceased’s testamentary capacity. As outlined in para. 53 of her factum, relying solely on her affidavit , Ms. Daqa asserts that the deceased
understood the nature and effect of a will as he himself requested that a new one be prepared in order to change how his assets were to be distributed after his death, on the basis that it was Daqa who had cared for him, and later visited Thompson for the same purpose, discussed the will, and requested an almost identical distribution of assets (affidavit of Lee Daqa, sworn February 13, 2019, para. 19);
recalled the nature and extent of his property and how he was disposing of it under the new will, since he discussed his assets with Daqa, including those listed in the December 2014 will, while making the June 14, 2015 will, and was aware of where his watches were, the fact he had inherited a significant amount of money from his parents, the existence of his safety deposit box, and was aware of his trailer and agreed to its sale (affidavit of Lee Daqa, sworn February 13, 2019, paras. 19, 23, 26);
remembered people he might expect to benefit under his will, given that he was single and had no children, as he discussed the fact that he felt the church and Udo Muller did not care for him as Daqa had, and key beneficiaries of his assets remained the same, with the exception of a cousin who was to receive $1,000 under the previous will but who was omitted in the June 2015 will, and the small personal items listed as watches, records and a record player and automotive magazines/books which were not listed in the June 14, 2015 will and which were to be divided among several people in the previous will;
understood the claims of those he would be excluding from the will, as he was aware he had no children or spouse, no close relations, and only excluded those who in his previous will would have only received specific personal items (specifically including some watches, automotive magazines/books, records and a record player, or a single sentimental or personal item of the beneficiary’s choosing) and one cousin who have received $1,000, but otherwise kept all the key beneficiaries the same.
[76] I do not agree with the conclusion asserted in para. 54 of Ms. Daqa’s factum that:
The above demonstrates that Smith had testamentary capacity, and more specifically, that he had testamentary capacity at the relevant time, as he had discussed his assets and beneficiaries with Daqa in June 2015 before having the new will created and signing same.
[77] Ms. Daqa’s evidence stands alone. It is not corroborated by other material evidence.
[78] Furthermore, Ms. Daqa’s evidence is diminished by Mr. Thompson’s evidence that, approximately six weeks after the June 2015 will was signed, Mr. Thompson concluded that the deceased was not able to clearly instruct him with respect to a will. The fact that Mr. Thompson found the deceased was capable of executing powers of attorney does not sufficiently corroborate Ms. Daqa’s evidence. The test for capacity to grant a power of attorney is different from the test for testamentary capacity (see, for example, Johnson v. Huchkewich, 2010 ONSC 6002, 62 E.T.R. (3d) 144).
[79] I also disagree with counsel for Ms. Daqa that the fact that Mr. Muller brought the deceased to Mr. Vitsentzatos’ office in September, that Mr. Vitsentzatos met with the deceased in September and October and signed revocations prepared by Mr. Vitsentzatos at those meetings indicate, as corroboration for Ms. Daqa’s testimony, that Mr. Muller and Mr. Vitsentzatos believed that the deceased had testamentary capacity on June 14, 2015. There is no evidence of what, if any, assessment was undertaken by Mr. Vitsentzatos when he saw the deceased on these occasions. In any case, whatever view Mr. Muller and Mr. Vitsentzatos held in relation to the validity of the June 2015 will does not assist Ms. Daqa in satisfying her evidentiary burden.
[80] The fact that Mr. Muller, as the attorney for the deceased, visited the deceased in August 2015 to discuss “his options” relating to the sale of his mobile home equally does not corroborate Ms. Daqa’s evidence.
[81] In addition, the available medical evidence is not supportive of Ms. Daqa’s position. Dr. Mayberry’s letter, as previously outlined, sets out his opinion from and after January 9, 2015. The application record included the records respecting the deceased’s time in hospital from October 30, 2015 to February 17, 2016. In the discharge summary signed by Dr. Mayberry, the most reasonable diagnosis is stated as “dementia – not legally capable of managing own affairs.”
[82] During their submissions, counsel for Ms. Daqa took issue with the admissibility of the opinions in the discharge summary and asserted that this opinion evidence was not admissible without compliance with r. 53. In my view, the hospital records are business records and, further, Dr. Mayberry would be considered a participant expert and not a litigation expert. In any event, this evidence is not being relied on to establish the deceased’s capacity at any point in time. Rather, I note Dr. Mayberry’s opinion to make the observation that the medical evidence does not corroborate Ms. Daqa’s evidence.
[83] Having reached the foregoing conclusions, I need not address fully the argument of Ontario Conference that Ontario Conference can establish that the deceased was subject to the undue influence of Ms. Daqa. I simply note that many of the “indications of the potential for undue influence” as set out in Gironda v. Gironda 2013 ONSC 4133, 89 E.T.R. (3d) 224 at para. 77 and Tate v. Giegueairre, 2015 ONSC 844 at para. 9 are present here – the deceased was socially isolated and fully dependent on Ms. Daqa, the deceased made a new will that was not consistent with his previous will, the new will significantly enhanced what Ms. Daqa would receive and her role in the administration of his estate, the new will was created at the same time the deceased changed his Power of Attorney for Property and Care in Ms. Daqa’s favour, the deceased’s lawyer was not consulted, the deceased was later taken to a different lawyer, and there were substantial pre-death transfers of money and purchases benefitting Ms. Daqa.
[84] The orders requested by Ontario Conference set out in subparagraphs 1 and 2 of paragraph 1 are hereby granted.
[85] In terms of the order requested by Ontario Conference in subparagraph 3 of paragraph 1 re: costs, I urge counsel to endeavour to resolve the costs issues between themselves. If that cannot be accomplished, they may make brief written submissions within the next 45 days.
“Justice L.C. Leitch”
Justice L.C. Leitch
Released: January 22, 2021
COURT FILE NO.: CV-18-382
DATE: 20210122
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE ESTATE OF James Douglas Foote, also known as Douglas James Smith, deceased
BETWEEN:
Ontario Conference of the Seventh-Day Adventist Church
Applicant
– and –
Librana Daqa also known as Lee Daqat, Larry Tait, Roy Thomson, Karl Nicol, Udo Muller, Ned Lofton, Larz Muller, Karsten Muller, William Donald, Ellen Donald, Peter Hallman, The Billy Graham Evangelistic Association of Canada, Jean Davis and Roswitha Muller
Respondents
REASONS FOR JUDGMENT
Leitch J.
Released: January 22, 2021