COURT FILE NO.: 01-3675/18 DATE: 2021-10-08
ONTARIO SUPERIOR COURT OF JUSTICE ESTATES LIST
IN THE MATTER OF THE ESTATE OF ROSALBA DI NUNZIO, deceased
BETWEEN:
LUCIA DI NUNZIO Applicant
– and –
TERESA DI NUNZIO and ROBERTO DI NUNZIO Respondents
COUNSEL: Constantine Tsantis, for the Applicant Michael S. Deverett, for the Respondents
HEARD: May 13, 2021
BEFORE: L.A. Pattillo J.
Introduction
[1] Rosalba Di Nunzio (“Rosalba”) died on July 20, 2018. She was 80 years of age. Her husband, Antonio, predeceased her. Together, they had three children, Roberto (“Robert”) born October 5, 1963, the respondent Teresa, born October 17, 1966, and applicant, Lucia, born December 6, 1972.
[2] Rosalba’s Last Will and Testament, dated March 1, 2017 (the “Will”), names Teresa as the sole trustee and beneficiary and expressly disinherits Robert and Lucia.
[3] On October 23, 2018, the Court issued a Certificate of Appointment, with a Will attached to Teresa. Although Lucia had earlier filed a notice of objection, because Di Nunzio was misspelled in the notice, it did not come to the court staff’s attention.
[4] This application was commenced by Lucia on October 29, 2018. It was discontinued against Robert the day after being commenced. Lucia seeks, among other things, orders revoking the Certificate of Appointment and requiring the Will to be proved in solemn form and declarations that the Will is invalid and of no force and effect based on suspicious circumstances, lack of capacity and undue influence.
[5] For the reasons that follow, I dismiss the application. I am satisfied from the evidence which I accept that the Will is valid. At the time she made her Will, Rosalba had testamentary capacity and was not under any undue influence.
Background
[6] Lucia’s evidence consists primarily of her affidavits (3) together with the affidavits of two friends and three expert reports from a handwriting examiner, Ms. Brenda Petty.
[7] In response, Teresa has filed the affidavits of herself and Robert as well as affidavits from the lawyer who prepared the Will and the two individuals who witnessed Rosalba’s signature.
[8] In addition, there has been extensive document production and cross-examinations of the witnesses.
[9] The following are my findings of fact.
[10] At the time of her death, Rosalba was living at her home at 4 Ramsden Road in Toronto (the “Property”) with Teresa and Robert. Rosalba and Antonio purchased the Property in the 1970’s and she had lived and raised her family there since.
[11] Lucia has been living across the road in a rented apartment with her boyfriend, Ian Forrest, since 2006.
Rosalba’s Health Issues
[12] In her latter years, Rosalba dealt with various health issues. She suffered from arthritic issues and had both knees replaced. She used a cane or walker to assist her walking. In the summer of 2014, she was diagnosed with uterine cancer following which she underwent treatment involving chemotherapy to February 2015 followed by radiation until April 2015.
[13] In July 2015, Rosalba was placed in palliative care after it was found that her initial treatment was unsuccessful, and her cancer had spread. She remained at home and resumed weekly chemotherapy in August 2015 until July 2016, with intermittent pauses. The chemotherapy caused nausea and vomiting and stressed her body causing weakness, tiredness, and sluggishness, requiring time to recover.
[14] Both Teresa and Robert were actively involved in Rosalba’s care on a 24-hour basis with Teresa being the primary caregiver. Teresa was Rosalba’s attorney for property and personal care. By the summer of 2016, Rosalba was also receiving care provided from visits by nurses and personal support workers.
[15] In the fall of 2016, Rosalba began sleeping in a hospital bed which had been placed in the living room. She was able to walk with the aid of a walker until October 2017 when she broke her right femur and subsequently became bed ridden.
[16] The cancer caused Rosalba significant pain at times which affected her ability to sleep. Her pain medication increased from Percocet to Oxycodone and finally to Hydromorphone beginning in August 2015. By January 2016, she was prescribed long acting Hydromorphone every 12 hours and breakthrough Hydromorphone as needed. By January 2017, Hydromorphone was prescribed every 8 hours.
[17] Teresa’s evidence is that she did not take the Hydromorphone every day in late 2016 and early 2017 because she didn’t want it or need it. On February 15, 2017, Rosalba had a fall and injured her chest while going to a hospital appointment after which she took Hydromorphone three times a day.
[18] On February 3, 2017, Rosalba resumed chemotherapy and received injections on February 3, 10, 17 and 24, 2017.
Sale of the Property
[19] In 2015, Rosalba had entered into an agreement to sell the Property to a developer. The agreement kept getting extended and subsequently fell through. Rosalba signed a mutual release in November 2016 terminating it. Around that time, her neighbour, Sean Didierserre (“Didierserre”) expressed an interest in purchasing her Property.
[20] In December 2016, Rosalba retained Peter Manza (“Manza”), a real estate agent, to act for her in connection with selling the Property to Didierserre. Manza has been a real estate agent since 1987.
[21] Manza’s mother and Rosalba were first cousins and he had known Rosalba and her family for as far back as he could remember. He had worked in the past with his father and Rosalba’s brother who were also real estate agents.
[22] At Rosalba’s brother’s request, Manza visited her sometime in 2015 to see if she needed help in selling the Property as she had been having issues concerning the completion of her agreement with the developer. He advised her at that time not to allow the agreement to be extended for too long a period. It wasn’t until December 2016, however, that she contacted him and told him that she was interested in selling the Property to Didierserre.
[23] Manza facilitated negotiations back and forth between Rosalba and Didierserre between December 29, 2016 and January 7, 2017, resulting in an agreement of purchase and sale between them dated December 29, 2016 to sell the Property for a purchase price of $1,325,000 (the “APS”).
[24] The APS provided, in part, that Rosalba would take back a mortgage for 85% of the purchase price ($1,126,250) and would enter into a lease agreement with Didierserre to rent the Property for a period of 16 months at a rental rate of $1 per year plus insurance and utilities. The transaction closed on March 1, 2017.
Preparation of the Will
[25] At all times during his dealings with Rosalba leading up to the APS, Manza dealt with her directly and took his instructions directly from her. He described her as being alert and aware of her surroundings when she signed the listing documents and the APS and he had no concerns about her ability to understand what she was signing or that she was being influenced in any way.
[26] Once the APS was finalized, Rosalba asked Manza if he could refer her to a lawyer to complete the sale and prepare a new will for her. Manza referred her to Greg Tucci (“Tucci”), a lawyer he had worked with previously and who had done both his and his wife’s wills.
[27] Tucci has been practicing law since 1991 and is a member of the Law Society of Ontario. He has a general practice involving wills and estates, real estate, litigation, corporate/commercial and otherwise. He estimated he has drafted and executed approximately 1,000 wills over the course of his practice.
[28] Manza sent the APS to Tucci’s office on January 10, 2017.
[29] Teresa arranged for Rosalba to attend at Tucci’s office on February 27, 2017 to sign the closing documents to complete the APS and to provide Tucci with instructions for her Will.
[30] On February 27th, Manza picked Rosalba up at her home and drove her to Tucci’s office in Maple, Ontario. When he arrived at her home, Manza said that she was dressed and waiting. She walked to his car on her own with the aid of her walker although he had to help her down her front steps. She sat in the front seat of his car. Teresa accompanied her with a small bag and sat in the back seat. When they arrived at Tucci’s office, Rosalba again walked on her own into the office where they waited for Tucci in his reception area. Manza described her as being “alert and aware of her surroundings” at the time.
[31] Rosalba met Tucci and was shown into a room where she signed the closing documents for the sale of the Property. Tucci, Manza and Teresa were all present when she signed the documents. Afterwards, she met with Tucci alone concerning her Will, following which Manza drove her and Teresa back to her home.
[32] When Tucci met with Rosalba on February 27, 2017 to sign the closing documents for the sale of the Property and to instruct him with respect to the Will, he had no concerns about her capacity to give instructions or execute the documents. He was present when she signed the closing documents. Afterwards, he met with her alone to obtain her instructions for the Will. The meeting lasted 20 to 30 minutes. He described her as relaxed, normal, and not nervous and that she was “adamant” about what she wanted to put in her Will. The requirement for a capacity passement did not occur to him.
[33] In cross-examination, Tucci said he spoke with her at length in Italian about what she wanted to do and particularly the extreme consequences of leaving all her property to Teresa and that Rosalba understood and indicated that Teresa knew what to do and would look after her siblings. He said Rosalba told him Lucia had previous issues with money and drugs and couldn’t be trusted with money and that she didn’t want to give it to her as it would just be blown. With respect to Robert, Tucci said that Rosalba said that Teresa would take care of him as she had been doing.
[34] Based on the meeting, he was satisfied that Rosalba was aware of the nature and extent of her assets and he had no concerns about her capacity to give instructions or execute the Will.
The Execution of the Will
[35] When Tucci’s office attempted to set up an appointment for Rosalba to attend to sign the Will, Teresa advised them she was not well enough to travel. Accordingly, alternate arrangements were made to have Manza take the Will to Rosalba for signature and have a second witness present.
[36] Manza attended at Tucci’s office later on March 1, 2017, following the closing, to pick up the cheque for the net proceeds of the sale to deliver it to Rosalba as well as the Will which he was to take to Rosalba for her execution. Tucci gave him instructions on the execution of the Will.
[37] When Manza arrived at the Property, he was introduced to Claudio Spizzirri (“Spizzirri”), a friend of Robert’s, who he had not met before. He understood that Spizzirri was there to witness Rosalba’s signature on the Will.
[38] Manza then met with Rosalba who was sitting up in bed in the living room watching a movie on television. He asked her how she was doing, and she replied she was doing well. He said she appeared alert “as usual”. He had no concerns about her capacity.
[39] Manza gave her the envelope with the closing cheque which she opened, looked at and then she thanked him and put it aside. He then showed her the Will and explained it. She inquired whether everything was going to Teresa and nothing to Robert or Lucia. Manza read her the clause in the Will to that effect and she confirmed those were her instructions.
[40] Manza then called Spizzirri into the room and Rosalba signed the Will in the presence of both he and Spizzirri who then each signed it as witnesses. Manza filled in the details concerning their contact information. Both Robert and Teresa were in the basement during the signing of the Will.
[41] Spizzirri, who had met Rosalba before on the few times he had visited the Property, said she was sitting up, was coherent and seemed fine.
Prior Wills
[42] Rosalba had three prior Wills before the Will, in 1998, 2014 and 2015. None of the Wills was prepared by Tucci. The 2014 and 2015 Wills were prepared by the same solicitor. The 2014 Will provided that both Teresa and Lucia were estate trustees and left her estate to her three children equally. It also created a Henson Trust for Robert. The 2015 Will appointed just Teresa as estate trustee and again left her estate to the three children equally.
[43] When the 2015 Will was prepared, Rosalba’s initial instructions to the drafting solicitor were that she wanted to remove Lucia as both an estate trustee and a beneficiary. The solicitor refused to do it and advised her that if she insisted on proceeding in that manner, he would require her to undergo a capacity assessment. Rosalba became very upset and Robert and Teresa, who were outside the room, heard heated words being exchanged between them. As a result, the solicitor left the room and asked them both to speak to their mother. Together Robert and Teresa managed to convince their mother to leave Lucia as a beneficiary in the will, but Rosalba still insisted that she be removed as an estate trustee and from her Powers of Attorney which was done.
[44] Rosalba’s intent to remove Lucia from her Will arose as a result of Lucia taking a significant sum of money from Rosalba’s bank account without permission. Based on the solicitor’s notes, Rosalba discovered it while at Walmart with Teresa, when she was advised at checkout she had no money in her account. The solicitor noted she was “very upset” with Lucia as it occurred during the period she was receiving chemotherapy. Lucia later admitted she took the money but said it was for her dog who was sick. She said she paid it back but Teresa disputes that and has produced bank records to support her position.
Rosalba’s Relationship with Lucia
[45] The above incident between Lucia and her mother was not an isolated one. Her relationship with her family and particular her mother had been tumultuous and difficult for a very long time.
[46] Both Robert and Teresa’s affidavits set out in some detail Lucia’s relationship with her family, beginning when she left home when she was a teenager. She has had a long history of alcohol and drug abuse which has continued into her adult years. She was hospitalized in 2004 for severe alcohol poisoning and later for a drug overdose. She has stolen alcohol and food from her parents’ home to buy drugs. At one-point Rosalba told her she was no longer allowed in her home unsupervised and changed the locks on the doors. She has often resorted to physical violence such as slapping, kicking, and punching when angry. She has had many relationships with partners who have supported or encouraged her issues with drugs and/or alcohol. Her current relationship with Ian Forrest is no exception. Her actions over the years caused her parents significant heart ache, anxiety, and stress. As Robert says, Lucia’s problems with alcohol and drugs significantly affected her relationship with their mother.
[47] Lucia’s problems with alcohol in particular, were substantiated by her two friends, Allison Kurysko and Judy Deon Dixon.
[48] Lucia does not deny Robert and Teresa’s accounts of her problems with alcohol and drugs. Lucia says that during the material times in 2016 and 2017, she was not estranged from her mother. While that may be true, there is no question that their relationship was seriously damaged, and that Lucia was doing little to repair it.
Position of the Parties
[49] Lucia factum seeks an order for directions to have the Will proved in solemn form based on suspicious circumstances. Further, she submits that that the Will is not valid based on lack of capacity and undue influence.
[50] At the conclusion of her 66 page factum, as well as at the end of full argument on the application, Lucia requested that the application proceed by way of hybrid trial with full viva voce evidence from each of Lucia, Teresa and Robert, with evidence from the other witnesses being given by affidavit subject to viva voce cross-examination. Lucia further seeks what is in effect an order for directions providing for production of all of Rosalba’s financial records and all medical records for the period from August 2014 to the date of death; production by Teresa of all her financial records from February 15, 2017 to the date of death; and providing directions for the trial.
[51] Teresa objects to Lucia’s last minute request to order a hybrid trial of the application at this stage. A hybrid trial is neither necessary or appropriate and the application can and should be determined on the extensive record before the court.
[52] Teresa, supported by Robert, denies Lucia’s allegations of “suspicious” circumstances which would lead to the Will being set aside or that Rosalba lacked capacity or was under undue influence at the time she executed the Will.
Should a Hybrid Trial be Ordered?
[53] Rosalba’s estate, consisting of the balance of the proceeds of the sale of her home, is relatively modest. The application was commenced in October 2018. Since that time, the parties have incurred significant costs in proceeding and responding to it. Importantly, they have appeared before this court on multiple occasions for orders requiring production of documents and medical records.
[54] In my view, it is neither appropriate nor proportional to permit the production requested and order a hybrid trial at this stage. Lucia has had more than enough time to obtain production of the medical records now sought. Further, there is no basis for the request for production of the financial records. As Justice Koehnen pointed out in his endorsement of March 16, 2021, the application is about the validity of the Will, not alleged financial misconduct.
[55] At a Case Conference on March 3, 2021 Justice Koehnen “invited the parties to agree to a timetable that would have the application disposed of in its entirety...” What followed was a timetable for cross-examinations, answers to undertakings, mediation, failing which, delivery of factums and concluding in a full day hearing on May 13, 2021. It was clear that the application would be argued on the record. If Lucia felt a hybrid trial was required, it should have been raised at that time, not at the conclusion of full argument on the application.
[56] Further, I am satisfied there are no credibility issues that require a hybrid trial. The evidence of Teresa, Robert, Manza, Tucci and Spizzirri is straight forward and direct. Lucia’s alleged “suspicions” are just that, suspicions. They are not supported by any direct contradictory evidence giving rise to credibility issues.
[57] Accordingly, I turn to the issues raised by Lucia challenging the Will.
The Law
[58] Contentious estate proceedings are governed by rules 75 and 76 of the Rules of Civil Procedure, R.R.O 1990, Reg 194, as amended. Rule 75.01 provides that a person having a financial interest in the 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. As a certificate of appointment has already been issued, however, rule 75.01 is not applicable. The time requiring the Will to be proved in solemn form has passed.
[59] As a result, rules 75.04 and 75.05 apply where, as here, the certificate of appointment has been granted. Rule 75.04 deals with the revocation of a certificate of appointment and rule 75.05 with returning the certificate.
[60] Rule 75.04 provides:
75.04 On the application of any person appearing to have a financial interest in an estate, the court may revoke the certificate of appointment of the estate trustee where the court is satisfied that,
a) the certificate was issued in error or as a result of a fraud on the court;
b) the appointment is no longer effective; or
c) the certificate should be revoked for any other reason.
[61] The application is primarily a will challenge, based on suspicious circumstances, lack of capacity and undue influence. It is on that basis that I intend to deal with it. In the event it is successful, the certificate of appointment must be set aside. In the event it fails, and notwithstanding the error arising from the misspelling of Lucia’s surname in her notice of objection, the certificate of appointment should stand.
[62] Upon proof that the will was duly executed with the requisite formalities and the testator’s knowledge and approval of its contents, a rebuttable presumption arises that the testator knew and approved of the contents and had the necessary capacity: Vout v. Hay, [1995] 2 S.C.R. 867 at p. 889.
[63] The presumption can be rebutted by the person challenging the will introducing evidence which, if accepted, raises “suspicious circumstances”. Suspicious circumstances may be raised by (1) circumstances surrounding the preparation of the will; (2) circumstances tending to call into question the capacity of the testator; and (3) circumstances tending to show that the free will of the testator was overborne by acts of coercion or fraud: Vout at p. 888. See too: Botnick et al. v. The Samuel and Bessie Orfus Family Foundation et al., 2011 ONSC 3043 (SCJ) at para. 110.
[64] Where suspicious circumstances are present, the burden shifts to the propounder of the will, in this case Teresa, the Estate Trustee, to prove knowledge and approval and if the suspicious circumstances relate to mental capacity, the burden of proving mental capacity, on a balance of probabilities: Vout at p. 889; See too: Neuberger v. York, 2016 ONCA 191 (C.A.) at para. 78.
[65] Undue influence arises where the testator’s agreement to the will was obtained by influence such that instead of representing what the testator wanted, the will is the product of coercion: Vout at p. 877. The onus is on the person alleging undue influence, in this case Lucia, to establish it. Mere suspicion cannot defeat the testator’s intention: Vout, p. 890.
Discussion
[66] I am satisfied based on the evidence of Tucci, Manza and Spizzirri, which I accept, that the Will was executed with the requisite formalities and that Rosalba understood its contents. As a result, the presumption that Rosalba knew and approved of its contents and had capacity applies and the onus shifts to Lucia to raise suspicious circumstances surrounding the preparation of the Will, Rosalba’s capacity or that her free will was overborne by acts of coercion.
[67] Lucia submits that Manza’s evidence concerning the signing of the Will is uncorroborated, but it does not have to be. Manza is not an opposite or interested party such that s. 13 of the Evidence Act does not apply.
[68] Lucia raises numerous “suspicious circumstances” in respect of matters surrounding the preparation of the Will, Rosalba’s capacity and that her free will was “overbourne” by Teresa, summarized as follows:
Surrounding preparation of the Will:
Rosalba’s significant health issues and specifically the side effects she suffered from the chemotherapy and her pain medication;
The retainer of Tucci as opposed to the lawyer who prepared Rosalba’s prior two Wills in 2014 and 2015;
Tucci’s actions leading up to the drafting of the Will; and
Issues surrounding the closing documents for the sale of the Property signed on February 27, 2017.
Rosalba’s Capacity
Rosalba’s illness and the effects of her treatment and medication;
The lack of cogent evidence, either medical or otherwise to establish capacity;
Lack of Free Will:
Teresa’s dominance and control over Rosalba’s financial and medical needs;
The absence of cogent evidence why Rosalba would want to disinherit both Lucia and Robert;
Teresa’s financial motives for obtaining control of Rosalba’s assets for her own benefit.
Preparation of the Will
[69] Lucia points to Rosalba’s age, the fact that her cancer had been spreading and her health declining since 2015 together with the effects of her treatments and pain medication.
[70] There is no question that Rosalba had significant health issues which caused her significant pain at times requiring medication or that her treatment was difficult and taxing on her strength. Robert conceded there were days when his mother’s pain was so severe that she did not want to engage in conversation.
[71] While it is clear in the 2016-17 period leading up to the Will that Rosalba had good days and bad days, there is no evidence that her health, treatments, or pain medication had any effect on her mentally at the material times. In fact, the evidence of Robert, Manza and Tucci establishes the opposite.
[72] Lucia submits that each of Robert, Manza and Tucci lied about their evidence. Not only do I not accept that submission, I reject it completely. Neither Manza nor Tucci have any reason to lie. They are independent of the issues. Further, Lucia’s allegations of professional misconduct against Tucci are in my view totally unfounded and inappropriate. Further, the allegations against Manza and Tucci rest almost entirely on the evidence of Ms. Petty, the handwriting expert, which, for reasons that follow, I do not accept.
[73] Robert too is independent of the issues. To submit, as Lucia has, that Robert is effectively under Teresa’s control, discounts his independence. Arguably he would be better off siding with Lucia to void the Will. The fact that he has not reflects that he supports and agrees with his mother’s wishes.
[74] Lucia submits that Manza’s evidence that Rosalba asked him to refer her to a lawyer to complete her sale and prepare a new will is “suspicious”. She submits, based on the fact that Rosalba had ample time before her chemotherapy resumed to obtain a new will and the fact that she did not act on it immediately following the APS which was finalized on January 7, 2017, that “in all likelihood”, Rosalba did not indicate any desire to Manza on January 7th to change her Will.
[75] Lucia’s suspicions do not displace Manza’s evidence. He was alone with Rosalba at the time she made her request. Having finalized the APS, it follows that she required a lawyer to complete the sale and that she would ask Manza for his recommendation. While she could have taken steps to change her Will earlier, I don’t consider it unusual, particularly given her illness, that she waited until she required a lawyer to sell her house to deal with her Will. In the circumstances, there is no reason to doubt Manza’s evidence.
[76] Lucia submits that Tucci was retained because the solicitor who prepared her former 2015 Will would have required a capacity assessment and Rosalba wanted to avoid that. While Rosalba was clearly upset with her former solicitor’s refusal to follow her instructions and require a capacity assessment before disinheriting Lucia, her request to Manza on January 7, 2017, while it may have entailed an intention not to retain the 2015 solicitor, it did not mean she could avoid a capacity assessment. In retaining Tucci, she had no idea whether he would require a capacity assessment or not. Nor is there any evidence that in recommending Tucci, Manza had any knowledge of the issues surrounding the 2015 Will or Rosalba’s concern, if any, regarding a capacity assessment.
[77] Lucia submits that Tucci’s only contact with Rosalba was on February 27, 2017 when she came to his office to sign the closing documents for the sale of the Property and provide instructions for the Will. Prior to that he and his staff only dealt with Teresa. As Teresa was Rosalba’s primary caregiver, I do not find that fact suspicious. There is no evidence the communication involved anything apart from administrative details concerning the completion of the sale and arranging the appointment for Rosalba to attend at Tucci’s office.
[78] While at first glance, Rosalba’s decision to leave all of her estate to Teresa, excluding both Lucia and Robert, could be considered as a suspicious circumstance, based on the evidence, I do not consider it to be so. Lucia’s history of her relationship with her mother and Rosalba’s prior intent to exclude her from her will support Rosalba’s decision to exclude her. Further, Tucci’s evidence of why she excluded Robert and his acceptance of his mother’s decision negate any suspicious concern involving him. Rosalba’s testamentary intentions were firm and clear.
[79] Lucia submits that Rosalba’s sale of the Property was done in secret. The fact that Lucia was not told about it is not suspicious, in my view, given the evidence of Lucia’s lengthy issues concerning her relationship with her family and in particular, her mother. Given her mother had been seeking to sell the Property from at least 2015, the fact that Lucia knew nothing about it speaks more to the lack of her relationship with her mother rather than some conspiracy to exclude her.
[80] Nor do I consider Rosalba’s sale of the Property to be suspicious, given the evidence of how it came about. In my view it was just smart estate planning by Rosalba.
[81] Lucia complains that during 2016 into 2017 that she found it increasingly difficult to see her mother. At the same time, she says that during that time she was spending most of her time with Ian Forrest who was working at Bruce Power on Lake Huron. Robert says that Lucia did not keep in regular contact with their mother and that when she did visit it often did not go well between them. Based on the evidence, while Lucia states she was not estranged from Rosalba, it is clear that their relationship was not close such that she was entitled to be advised of the sale of the Property.
[82] Given the nature of Rosalba’s illness and her relationship with Lucia, I do not consider that Teresa and Robert’s management of Lucia’s visits with their mother in 2016 and 2017 to be suspicious. They were necessary given Rosalba’s illness.
[83] Lucia points to the fact that the Will was made without her knowledge. In my view, however, that fact is not unusual given her relationship with her mother and the fact that the 2015 will was also made without her knowledge.
[84] Lucia relies on the evidence of Brenda Petty, the handwriting expert, to establish circumstances surrounding Rosalba’s signature. In that regard, Lucia alleges that Rosalba did not sign the closing documents for the sale of the Property and that Teresa, Manza and Tucci all lied that she did.
[85] Ms. Polly, who resides in Duncan, Oklahoma, is designated as a Certified Questioned Document Examiner following two years of course study at the International School of Forensic Document Examination in Dallas, Texas together with continued course studies since then. She has been qualified as an expert mainly in courts in the United States but also in Canada in 2019 in the Ontario Superior Court and in Saskatchewan.
[86] Based on education and experience, I am prepared to qualify Ms. Petty as a handwriting examiner for the purpose of giving opinion evidence in this matter concerning the signature of Rosalba.
[87] Ms. Petty has submitted three separate reports dated April 22, 2019, February 6, 2020, and March 13, 2020 respectively which deal with her analysis on both Rosalba’s signature and Manza’s handwriting. All three reports contain an acknowledgement of expert’s duty as required by rule 53.03(1) of the Rules of Civil Procedure.
[88] In the April 22, 2019 report, Ms. Petty viewed 11 documents which she was told contain five known signatures and 30 initials of Rosalba and six documents containing eight questioned signatures and two initials of Rosalba. The known documents were Rosalba’s signature on the 2014 and 2015 Wills and on the December 29, 2016 APS. The questioned documents were some of her signatures on the Will and on some of the February 27, 2017 closing documents from the sale of the Property.
[89] Ms. Petty notes, and it is clearly noticeable from Rosalba’s signatures beginning with her 2014 Will, that her known signatures and initials exhibit great shakiness or tremor. She opines that the shakiness or tremor represents something that is affecting the brain, the muscles, or the nerves, individually or collectively. She further notes, based on the known signatures, that Rosalba’s ability to write declined between 2014 and 2017.
[90] After discussing the “significant oddities” between the signatures and initials on the known and unknown documents, and based on “a thorough analysis” of the documents and applying accepted forensic document examination tools principles and techniques, Ms. Petty concludes that two of the signatures on the Will (Q1A above the date and Q1B above the signature line) were genuine and one (Q1C under the signature line) was either a simulated signature or a “guided hand” approach was being used.
[91] Ms. Petty further concluded that the balance of the questioned documents which involved Rosalba’s signature or initials on the closing documents for the sale of the Property signed on February 27, 2017 were either a simulated signature or a “guided hand”.
[92] I consider that Ms. Petty’s February 6, 2020 report concerning Manza and the writing on the Will is not relevant to the issues before the court.
[93] In the report, Ms. Petty was asked to compare the known signatures and initials of Manza to the writing on the dated area on page 8 of the Will to determine if it is similar to Manza’s initials or writing. An enlarged picture of the date area shows that the writing in question is behind the date “1st” which has been written on top of the written script. Ms. Petty’s opinion is that the written script was not written by Manza. Manza’s evidence is that it was written by Rosalba. He wrote the “1st”overtop.
[94] In the final report dated March 13, 2020, Ms. Petty was asked to examine Rosalba’s signature on a mutual release signed by her on November 25, 2016. Based on her examination, Ms. Petty is of the opinion that Rosalba’s signature on the release is not genuine and was not written by her.
[95] While I am prepared to admit Ms. Petty’s evidence, I am not prepared to accept her opinions concerning the validity or lack thereof of Rosalba’s signature. Ms. Petty acknowledges that Rosalba’s writing exhibited great shakiness or tremor which declined over the period of the samples she was considering. Importantly, however, she had no information as to what the cause of Rosa’s shakiness or tremor was and more specifically how she was affected by it from day to day given her illness and treatment or where she signed the document in question, i.e. sitting up in bed or at a writing table. Given those limitations, while there are clearly differences in Rosalba’s signatures in respect of the documents she signed, Ms. Petty’s opinion that it was not Rosalba’s signature cannot stand, particularly given the clear and firm evidence of Tucci and Manza, which I accept, that Rosalba did in fact sign the documents which Ms. Petty concludes she didn’t.
[96] Further, the signatures Ms. Petty opines were not Rosalba’s, with one exception, all involve documents other than the Will. They relate to a release she signed in November 2016 and a number of the closing documents she signed on February 27, 2017. None of those transactions are in issue. The Will is in issue and Ms. Petty’s conclusion is that Rosalba’s signature on the signature line of the Will is genuine.
[97] While Ms. Petty concludes that Rosalba’s signature under the signature line in the Will is either simulated or results from a “guided hand”, Manza’s evidence in cross-examination is that Rosalba signed her first name on top of the signature line and because of her shaking and large writing, she couldn’t fit her signature all on one line so he told her to put her surname underneath the signature line.
Capacity
[98] Lucia submits that it is suspicious that there is no cogent evidence, medical or otherwise, to establish capacity. However, given the presumption, it is Lucia’s onus to establish lack of capacity. As noted, part of the relief she seeks is in effect an order for directions providing for the production of all of Rosalba’s medical records from August 2014 to date. While production of some medical records were produced, any additional production required should have been sought a long time ago, rather than relying on lack of production at the hearing.
[99] Lucia relies primarily on Rosalba’s illness and specifically the side effects arising from both the chemotherapy treatments and her pain medication to establish lack of capacity. As I have already held, however, Rosalba’s treatment and medication for cancer does not by itself establish lack of capacity.
[100] The records of Rosalba’s palliative care doctor, Dr. Paolo Mazzotta, were produced. While they indicate a decline in the palliative performance status from August 2015 to January 2017, there is no evidence that involves capacity. Further, in or around mid-January 2017, Dr. Mazzotta visited Rosalba and noted in his notes, that she “was able to answer some of my questions in Italian…” and that she had “variable attention and concentration.” That isolated observation does not, by itself, establish lack of capacity.
[101] Lucia also relies on the evidence of her two friends, Allison Kurysko and Judy Deon Dixon. That evidence is of no assistance in respect of capacity at the time that the Will was executed. At best it is anecdotal. It speaks more to Rosalba’s illness than her capacity. Ms. Kurysko has no qualifications to depose as she did that she believed Rosalba was in the middle to late stages of Alzheimer’s in late 2016, early 2017. Further, the last time Ms. Dixon, who is a registered nurse, saw Rosalba was sometime in 2016 when she took out her sutures and she was satisfied she had the necessary capacity to provide informed consent.
[102] As noted, the evidence of Manza and Tucci concerning their dealings with her establish, in my view, that Rosalba was capable at the time she executed the Will. I also rely on the evidence of Robert, who lived with his mother 24/7, and Spizzirri that Rosalba was mentally capable at the time she signed the Will. While Robert is not qualified to assess capacity, given the many years he lived with her, he is certainly able to know whether his mother continued to have all her faculties.
Undue Influence
[103] Lucia submits that Teresa’s dominance and control over Rosalba’s financial and medical needs is a sign of undue influence. Given Rosalba’s illness it follows that as her principal caregiver and attorney of property, Teresa would be intimately involved in both her care and her finances. Such involvement, in the absence of any other evidence, does not establish undue influence.
[104] Lucia points to Teresa’s economic and health circumstances in support for her allegation of undue influence. In my view those facts do not amount to “cogent” evidence of undue influence.
[105] Lucia also relies on the lack of “cogent” evidence why Rosalba would want to disinherit both her and Robert. In my view, there is evidence which I have already addressed which explains why Rosalba did not want to include either Lucia or Robert in the Will. Lucia’s refusal to accept it does not establish undue influence.
[106] Once again, all Lucia raises are suspicions which are not sufficient to establish that Rosalba was subject to undue influence at the time she executed the Will.
Conclusion
[107] For the above reasons, the application is dismissed in its entirety.
[108] Teresa is successful on the application and is entitled to her costs on a partial indemnity basis, payable by Lucia personally.
[109] Lucia submits in the event the application is unsuccessful, the problems giving rise to the litigation were caused by Rosa resulting in her costs being paid by the Estate. In my view, as established by McDougald Estate Gooderham, 2005 ONCA 21091, [2005] O.J. No. 2432 (C.A.), costs in estate litigation follow the event in the absence of one or more policy considerations applying. None apply here, in my view.
[110] Both parties have filed Cost Outlines. Teresa claims costs of $130,379.45 made up of fees of $125,796.00 and disbursements of $4,583.45. Lucia on the other hand claims costs of $144,454.84 made up of fees of $101,700, disbursements of $26,136.14 plus applicable taxes.
[111] I am unable to reconcile Teresa’s costs claimed with the hours and hourly rates shown in the Cost Outline in order to fix the amount of costs to be paid. Accordingly, I direct that Teresa’s counsel to resubmit Teresa’s Cost Outline setting out in more detail the partial indemnity costs including hours spent and rates charged within 10 days.
[112] Teresa seeks to recover her costs, once assessed, against Ian Forest, Lucia’s boyfriend. In order for that to occur, Teresa must serve Mr. Forest with a motion record for the claim as well as a breakdown of the costs. Once the motion record has been served, the parties shall arrange a 9:30 scheduling appointment before me.
L.A. Pattillo J.
Released: October 8, 2021
COURT FILE NO.: 01-3675/18 DATE: 2021-10-08
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
LUCIA DI NUNZIO Applicant
– and –
TERESA DI NUNZIO and ROBERTO DI NUNZIO Respondents
REASONS FOR JUDGMENT
PATTILLO J.
Released: October 8, 2021