COURT FILE NO.: 01-4621/18

DATE: 20211220

ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE MATTER OF THE ESTATE OF LORRAINE ELIZABETH AGNES ANDERSON

BETWEEN:

Larissa Rene Ward

Applicant/Responding Party on Summary Judgment Motion and Moving Party on the Amendment Motion

– and –

The Estate of Lorraine Elizabeth Agnes Anderson, Lurlene Elizabeth Anderson, Jack Douglas Ward and Trevor Peter Anderson

Respondents/Lurlene Anderson as Moving Party on Summary Judgment Motion and Responding Party on the Amendment Motion

John D. Ekpenyong, for the Applicant

Taayo Simmonds, for the Estate of Lorraine Elizabeth Agnes Anderson and for the Respondent Lurlene Anderson

HEARD: November 1, 2021

C. gilmore, j.

ruling on summary judgment and Amendment motion

iNTRODUCTION

[1] There are two motions before the Court: the Respondent, Lurlene Anderson’s (“Lurlene”) motion for summary judgment and the Applicant, Larissa Ward’s (“Larissa”) motion to amend her Notice of Objection.

[2] At the scheduling appointment on June 9, 2021 the assigned judge was only requested to schedule the summary judgment motion. It was duly scheduled for November 1, 2021 for a half day of argument.

[3] In August 2021 Larissa’s counsel served a motion to amend the Notice of Objection (“the amendment motion”) returnable on November 1, 2021. Lurlene’s counsel objected on the grounds that November 1, 2021 was reserved solely for the summary judgment motion and a separate scheduling conference was required to schedule the amendment motion. Given the position taken, Lurlene’s counsel did not file responding material to the amendment motion.

[4] When the matter came before the Court on November 1, 2021, Larissa’s counsel insisted that his motion should proceed and that Lurlene’s counsel should have filed responding material to the amendment motion. Given that he had not, Lurlene’s counsel submitted that the motion should proceed to be argued without any responding material before the Court.

[5] It is clear that the amendment motion and the motion for summary judgment are intertwined as the summary judgment seeks to dismiss the original and any amended Notice of Objection. As such, I required that counsel for Lurlene file his responding material by November 22, 2021 and any reply material from Larissa be filed by December 6, 2021. I advised counsel that my ruling would encompass the relief sought on both motions.

[6] This matter has been fraught with delay as the motion for summary judgment was originally scheduled to be heard in March 2020. Between delays related to the pandemic and other issues related to electronic filing, the matter has been delayed by more than 18 months. It is important that the parties to this matter receive a decision as soon as reasonably possible so that they may move on with their lives.

[7] As will be set out below, the motion to amend the Notice of Objection is dismissed. Further, the original Notice of Objection is set aside as the motion for summary judgment is granted, there being no genuine issue for trial in this matter. The Estate Trustee will be permitted to proceed to issue the Certificate of Appointment for the reasons set out below.

BACKGROUND

[8] These motions relate to the Estate of Lorraine Elizabeth Agnes Anderson (“the deceased” or “the Mother” or “Mrs. Anderson”). Mrs. Anderson had four children, the Applicant Larissa, the Respondent Lurlene and their brothers Jack Douglas Ward (“Doug”) and Trevor Peter Anderson (“Peter”). Doug and Peter were present at the motion but were not represented by counsel and did not file material other than brief affidavits in support of Lurlene’s defence of the motion to amend. They support the position of their sister Lurlene on these motions.

[9] Mrs. Anderson died on August 23, 2018. Her last will dated May 27, 2015 (the “2015 Will”) appointed Lurlene as Estate Trustee. All four children are beneficiaries under the 2015 Will. In October 2018 Lurlene applied for a Certificate of Appointment of Estate Trustee with a Will. Larissa filed a Notice of Objection claiming that her mother lacked testamentary capacity to sign the 2015 Will amongst other objections.

[10] The original Notice of Objection set out three grounds of objection as set out below:

1. I, Larissa Rene Ward, daughter of the deceased, objects to the issuing of a Certificate of Appointment of Estate Trustee to Lurlene Anderson without notice to me because my mother lacked testamentary capacity.

2. Lurlene Anderson is extremely duplicitous and is therefore unfit to act as estate trustee. She appointed herself an attorney under power of attorney at the time my mother lacked capacity.

3. The nature of my interest in the estate is: I am the daughter and the favourite child of my mother and when I was eleven (11) years old, my mother confided in me that she had left me a large legacy.

[11] The Amended Notice of Objection sets out a substantial number of new objections related to among other things: the execution of the will, forgery, undue influence, embezzlement, theft and further capacity issues related to Mrs. Anderson. The additional objections in the Amended Notice of Objection are set out below:

4. My mother did not execute the will as the will was signed by Lurlene. The handwriting is clearly Lurlene's handwriting.

5. Although my mother was capable of making a telephone call, it was Lurlene who telephoned her own lawyer on April 23, 2015 to revise my mother's will.

6. Lurlene told her lawyer by email on March 18, 2015 that "I have 3 other siblings who are not involved in the care of my Mom, their choice. My Mom has left 2 of my siblings' property and cash in her will. The third receives cash only as she is bi polar and my Mom is worried she will lose any property left to her, also, she does not want her to receive a lump sum but a monthly allowance so it is not "squandered"”. The statement by Lurlene is reflected on the will and adopted nearly verbatim as though it was made by my mother.

7. Lurlene evicted Jasmine who was staying with my mother and attending to her and completely cloistered and sequestered her from all contact so she could totally dominate my mother unchecked and unchallenged.

8. My mother was totally at the tender mercy of Lurlene and extremely susceptible to undue influence as she was a double amputee from the knee down since 2012, had hip replacement surgery and was diabetic, had bi-cataract extraction and was legally blind, was almost always drifting in and out of consciousness as she also suffered from anemia and dementia.

9. Upon selling my mother's 86 Nortonville Drive property, Lurlene embezzled the net proceeds of $498,985.00 belonging to my mother.

10. On April 16, 2016 Lurlene inexplicably withdrew 320,000 from my mother's account.

11. On March 7, 2017 Lurlene withdrew $190,000 from my mother's account.

12. Lurlene deposited a certified cheque in the amount of $244,844.08 made payable to my mother on May 28, 2015 into her own personal account.

13. Lurlene borrowed $450,000 from the Home Trust and used my mother's funds to discharge the debt.

14. Lurlene deposited a certified cheque in the amount of 215,873.74 payable to my mother into her own personal account on May 31, 2016.

15. Lurlene withdrew more than $60, 000 from my mother's account after her death and went on expensive vacations.

[12] Mrs. Anderson made a previous will in 2014 (the “2014 Will”). She met with Mr. Peter Luciano of Axess Law Professional Corporation on July 15, 2014. The will was signed in August 2014. The 2014 Will appoints Lurlene as Estate Trustee. Mrs. Anderson owned certain properties and gifted them in her 2014 Will as follows:

(i) 1275 Markham Road, unit 1101, Toronto Ontario (the “Markham Condo”) to Lurlene;

(ii) 165 Cherokee Blvd., unit 216, Toronto Ontario (the “Cherokee Condo”) to Doug;

(iii) Du Montreal, Unit 210, Kelowna, British Columbia (the “Kelowna Condo”) to Peter.

[13] The 2014 Will divides the residue of her estate equally between her four children.

[14] When Mrs. Anderson’s husband died, she received property located at 86 Nortonville Drive, Toronto (the “Nortonville property”) by way of a Survivorship Application dated April 9, 2015. Mrs. Anderson decided to sell the Markham Condo and purchase a new home at 70 Morning Dew Road (“Morning Dew”) in Scarborough for $600,000. Morning Dew closed on April 10, 2015.

[15] On March 23, 2015 Mrs. Anderson and Lurlene attended at Vanular Lawyers Professional Corporation to revise her will as result of her intention to sell the Markham Condo and purchase Morning Dew. According to Mr. Vanular’s notes, Mrs. Anderson wanted to gift the Morning Dew property to Lurlene, given that Lurlene was her caregiver.

[16] In the 2015 Will, Lurlene remained as Executor of the Estate. The only other change was that Larissa’s ¼ share of the residue of the Estate was to be held in a Henson Trust and administered by Doug.

[17] Mr. Vanular requested that Mrs. Anderson provide a capacity letter after their meeting on March 23, 2015. Mrs. Anderson obtained a letter from her family doctor, Susanna Fung, dated March 24, 2015 confirming that Mrs. Anderson had capacity to sign a new Will.

[18] Mrs. Anderson had many medical difficulties. As a result of complications from diabetes, in 2012 both of her legs were amputated below the knee and she requires the use of a wheelchair or electric scooter. Lurlene lived with her mother and was her full-time caregiver. Larissa alleges that her sister isolated their mother from the family and influenced her with respect to both the 2014 and 2015 Wills and the transfer of the Morning Dew property into the joint names of Lurlene and Mrs. Anderson. Larissa alleges that Mrs. Anderson did not have capacity to sign the 2015 Will as she suffered from dementia. Further, Lurlene arranged the appointment with Mr. Vanular, provided him with instructions and then conspired with Mr. Vanular and his assistant to forge her mother’s will. Larissa seeks to have both the 2014 and 2015 Wills set aside.

[19] Larissa submits that the above allegations raise complex issues of fact and law which cannot be decided on a paper record. There is also expert evidence in relation to the forgery. All of this must be put before the Court by way of a trial.

[20] Lurlene does not dispute that her mother had many medical conditions but none of them prevented her from understanding the contents of her will or the effect of it. Her mother had always intended that each of the children receive one of her properties except for Larissa. Her mother was concerned about Larissa’s drinking and her mental health issues and therefore created the Henson Trust for Larissa’s residual share of the Estate.

[21] There is very little difference between the 2014 and 2015 Wills except for the change in properties due to the sale of the Markham Condo and the creation of the Henson Trust. Mr. Vanular took detailed notes of his meetings with Mrs. Anderson and he was cross-examined. There is no evidence of a lack of capacity on the part of Mrs. Anderson or any execution issues. Further, the expert evidence is not properly before the Court and the allegation that an experienced lawyer and his assistant would conspire with Lurlene to forge the 2015 Will is nonsensical and without foundation.

THE ISSUES AND THE LAW

Is Summary Judgment Appropriate for this Matter?

[22] There are two main issues for the Court to determine in this matter; whether Mrs. Anderson had capacity to execute her 2015 Will and whether it was duly executed. There is an issue with respect to the 2014 Will but that is of a more minor nature in this Court’s view.

[23] Pursuant to Rule 20.04(2), the Court may grant summary judgment where it is satisfied that there is no genuine issue for trial with respect to a claim or defence. It is a well-known principle that while the moving party must provide sufficient evidence to demonstrate that a trial is not needed, the responding party must put its best foot forward. That is, the responding party cannot argue that more evidence will be available at trial; they must provide all of the evidence on which they intend to rely at the summary judgment motion.

[24] Section 13 of the Evidence Act, R.S.O. 1990, c. E.23, means that a party on a summary judgment motion cannot invalidate a testamentary instrument based on their own uncorroborated evidence:

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.

[25] In Botnick v. The Samuel and Bessie Orfus Family Foundation et al., 2011 ONSC 3043, 71 E.T.R. (3d) 210, the beneficiaries were sisters. Elaine Orfus brought a motion for summary judgment against her sister Sharon Gerstein. Sharon had filed a Notice of Objection claiming that her mother lacked capacity to sign the will in issue and that she had been unduly influenced by Elaine who had been living with her. The Court granted summary judgment. In doing so, the Court considered the importance of s. 13 of the Evidence Act in that material facts occurring before the death of the testator must be corroborated by the party alleging them. The reason for this is obvious in that the deceased person is not available to provide their own version of the facts (paras. 15 and 16).

[26] There is also the issue as to whether summary judgment is available in will challenge cases. Larissa relies on Ettore v. Ettore Estate, [2004] O.J. No. 3646 (S.C.). In that case, the Court found that the use of summary judgment may be more limited in estates cases than in other civil litigation (para. 42).

[27] Respectfully, this view appears to be dated. In Re Estate of Ruth Smith; Smith v. Rotstein, 2010 ONSC 2117, 56 E.T.R. (3d) 216, at para. 34, D.M. Brown J. set out as follows:

About a decade ago some questions existed about the availability of summary judgment in will challenge cases, especially after an order giving directions had been made. Those questions no longer exist. First, a common practice has emerged to include a provision in an order giving directions that a party may bring a motion for summary judgment. More importantly, subsequent case law clarified that summary judgment is available in will challenge cases. As stated recently by the Court of Appeal in Chappus Estate (Re), "the rules contemplate the possibility of summary disposition in contentious estate matters".

[28] The Court in Smith went on to say that contested will challenges were “just another species within the larger genus of civil proceedings” (para. 39) and that the evidentiary requirements of Rule 20 provided the necessary safeguards for estate matters as in rem proceedings.

[29] Given all of the above, this matter is clearly appropriate for a summary judgment proceeding. While Larissa’s counsel was adamant that proceeding by way of summary judgment would not do justice to the case or the four children, I do not agree. My reasons are set out below.

Did Mrs. Anderson have Testamentary Capacity?

[30] As set out in Botnick at para. 102, whether or not a Testator had testamentary capacity is a question of fact. The relevant facts are those related to will instructions given by the Testator and the execution of the will. Botnick also confirms that, where suspicious circumstances exist, the propounder of the will has the onus of establishing testamentary capacity (para. 108).

[31] As per Royal Trust Corp. of Canada v. Saunders, 2006 CanLII 19424 (ON SC), [2006] O.J. No. 2291 (S.C.), at para. 58, testamentary capacity is established where the Testator:

1. Understands that nature and effect of a will;

2. Recollects the nature and extent of his or her property;

3. Understands the extent of what he or she is giving under the will;

4. Remembers the people he or she might expect to benefit under the will; and

5. Understands the nature of the claims that may be made by persons he or she is excluding under the will.

[32] Where suspicious circumstances exist as alleged in this case, Royal Trust provides at para. 78 that the Court may consider:

(1) The extent of physical and mental impairment of the testator around the time the will is signed;

(2) Whether the will in question constitutes a significant change from the former will;

(3) Whether the will in question generally seems to make testamentary sense;

(4) The factual circumstances surrounding the execution of the will; and

(5) Whether a beneficiary was instrumental in the preparation of the will.

A. Did Mrs. Anderson Understand and Approve the Contents of her Will?

[33] Mrs. Anderson first met with the lawyer who drafted the 2015 Will, Timothy Vanular, on March 23, 2015 with Lurlene. The notes from that meeting were provided in the original motion record from March 2020. Mr. Vanular signed the notes and dated them. Those handwritten notes reflect the following:

a. Mrs. Anderson intended to sell the Markham Condo and the Nortonville property and buy the Morning Dew property for $600 thousand.

b. Mrs. Anderson’s intentions were to leave the Cherokee Condo to Doug and the Kelowna Condo to Peter, and that they were worth about the same ($200 thousand).

c. Larissa was not to receive any real property but her share of the residue was to be held in a Henson Trust with Lurlene as trustee. Mrs. Anderson had a concern that Larissa would spend her share of the Estate on alcohol because she “has a drinking problem”.

d. Mr. Vanular suggested that Lurlene and Mrs. Anderson hold title in Morning Dew as tenants in common, so that upon her death, Mrs. Anderson’s equity would go to the Estate and be divided among the four children. Mrs. Anderson did not want this as Lurlene was the one who was her caregiver, not the other children. She insisted that the Morning Dew ownership be registered as a joint tenancy as between her and Lurlene. Mrs. Anderson directed that a clause go into her will explaining why a greater share of her Estate was to go to Lurlene.

e. Mr. Vanular advised that Mrs. Anderson’s will would need to be revised with specific language as to why Lurlene was receiving a greater share of the Estate.

f. Mr. Vanular advised that he required a capacity letter from Mrs. Anderson’s doctor confirming that she was of sound mind and able to sign the new will.

g. At the end of his notes Mr. Vanular added “mom’s instructions voluntary/no duress”.

[34] Mr. Vanular was cross-examined by Larissa’s counsel on March 9, 2020. He deposed that he was retained by Mrs. Anderson to act on the sale of the Nortonville property, the purchase of Morning Dew and the preparation of a will. Neither Lurlene nor Mrs. Anderson were existing clients of Mr. Vanular.

[35] The initial contact for the appointment was made by Lurlene via telephone and email in or around March 17 and 18, 2015. Mr. Vanular deposed that Lurlene arranged the appointment as she was Mrs. Anderson’ caregiver. Given what Mr. Vanular understood to be the subject of the meeting (the sale of one property and the purchase of another), Lurlene was advised by Mr. Vanular’s office that Mrs. Anderson’s will would likely need to be changed.

[36] It was put to Mr. Vanular during his cross-examination that Mrs. Anderson was “blindsided” and had no idea that the March 23, 2015 appointment would include revisions to her will. Mr. Vanular did not agree. He was asked why his notes indicated that he discussed Mrs. Anderson’s will with Lurlene present. His evidence was that he asked Lurlene to step out of his office at the end of the meeting so that he could discuss the issue of undue influence with Mrs. Anderson. That is, he queried why Mrs. Anderson was giving Lurlene a preferential share of her Estate and why Larissa was not receiving any share of the real properties Mrs. Anderson owned. Mr. Vanular conceded that his notes do not reflect that he asked Lurlene to leave his office near the end of the meeting, but he had a clear recollection of doing this.

[37] It was also suggested to Mr. Vanular that Lurlene gave him will instructions for Mrs. Anderson via email which he simply incorporated wholesale into her will. Mr. Vanular denied this and responded as follows at Questions 182 to 184 of his cross-examination:

182. A. No that is not correct. My notes. . .

183. Q. This is coming from Lurlene.

A. Let me answer the question. My notes talk about a Henson Trust. This communication from Lurlene talks about a spendthrift trust, a completely different animal. A spendthrift trust provides for an allowance to the beneficiary, all of which we discussed at the March 23rd meeting and decided that the Henson Trust would be more appropriate, because Lurlene had alcohol issues and she was bipolar. So we did not go ...

184. Q. This is Lurlene ...

A. Hang on, let me finish. We did not go with the spendthrift trust as per this email.

185. Q. But what Lurlene describes here is also adopted wholesale and incorporated into the will, is it not?

A. No, it's not.

[38] Mr. Vanular deposed that the original Agreement of Purchase and Sale for Morning Dew was in Lurlene’s name via Mrs. Anderson’s Power or Attorney. Mr. Vanular’s evidence was that he discussed various ways in which title to Morning Dew could be taken. He recommended that title be taken as tenants in common as between Mrs. Anderson and Lurlene. Mrs. Anderson insisted that title go into Lurlene’s name alone.

[39] In the end, Mr. Vanular was able to convince Mrs. Anderson to take title in joint names with Lurlene. Mr. Vanular had Mrs. Anderson execute a conflict of interest acknowledgement and advised her to seek independent legal advice.

[40] Mr. Vanular’s advice to Mrs. Anderson about taking Morning Dew in Lurlene’s name as opposed to another form of title holding is summarized in his cross-examination as follows at Question 275:

[A]s a result of that email, we had our meeting of March 23rd. Mom in the meeting, separately, not in the presence of Lurlene, communicated to me the reason why she wanted her daughter, and you're in my notes, you can read my notes, why she wanted Lurlene to get a greater share of the estate and go on ... originally she wanted title in Lurlene's name only and I convinced her to go with joint tenancy. And the reason I convinced her to go as joint tenants which is not in the notes, but we had a frank discussion about it, was that if Lurlene and her had a fight, or Lurlene wanted to sell the house, or Lurlene wanted to mortgage the house, if mom was not on title, then she could do so. But if she was a joint tenant, it would prevent her from selling the house, mortgaging the house, or kicking her out on the street. Hence mom agreed, then, to go as joint tenants as a result of that meeting.

[41] As requested, a capacity letter was provided by Mrs. Anderson’s family doctor, Dr. Susanna Fung, on March 24, 2015. Dr. Fung wrote:

To Whom It May Concern:

I am writing on behalf of my patient, Elizabeth Anderson, to advise you that she is capable of re writing her will.

Thank you for your attention to the above.

Sincerely

Dr. Susanna Fung

[42] Mr. Vanular was asked about whether Mrs. Anderson appeared “physically fit or frail?” during the March 23, 2015 meeting. His response at Question 244 was as follows:

I mean, other than her amputations, I'm not a doctor, she didn't seem frail to me. She was capable of answering any questions. She was lucid. She was engaging. She was cooperative. I'm not a medical doctor, I can't comment on her medical health.

[43] With respect to the specifics of Mrs. Anderson’s testamentary capacity, Mr. Vanular’s evidence was as follows at Questions 255-261:

255. Q. Do you believe that she knew the extent and nature of her property?

A. Yes, I do.

256. Q. Did she know the person to whom she meant to devise (sic) and bequeath her property?

A. Persons, more than one, correct.

257. Q. Yes.

A. She did.

258. Q. Yes.

A. Yes, she did.

259. Q. Did she know the effect of making the will by distributing her property to the object of her bounty?

A. Okay. I don't understand that question. Can you rephrase it or repeat it?

260. Q. Did she know the effects of making the will?

A. Yes, and I have answered that.

261. Q. Did she have memory sufficient to collect in her mind the elements of the business to be transacted?

A. Absolutely.

[44] And at Questions 303, 304 and 311:

303 Q. Did she [you] know that she suffered from senile dementia?

A. She didn't demonstrate any dementia during our meeting.

304. Q. Pardon me?

A. I didn't know. She didn't demonstrate any dementia or any lack of cognizant behaviour at our meeting.

311. Q. Sir, were you concerned at all about the physical and mental condition of Ms. Anderson, her age, weakness and infirmity and the extent of which she was dependant upon and subject to the control of Lurlene?

A. That's a multi-layered question. I've already told you that she was her primary caregiver, so obviously it raises red flags as to undue influence. I wasn't concerned, nor did she demonstrate any issues with respect to her mental capability. And as far as her physical capability, other than the fact that she was in wheelchair, I have no knowledge of any other medical conditions, nor did she share some with me.

[45] After the March 23, 2015 meeting, Mr. Vanular confirmed Mrs. Anderson’s will instructions in an estate planning letter addressed to Mrs. Anderson dated April 6, 2015. The letter confirmed that Mrs. Anderson would name Lurlene as Estate Trustee with Doug as the alternate and that special bequests (real property) would go to Lurlene, Doug and Peter with a preferential share to Lurlene. The residue of the Estate was to be divided between her four children with Larissa’s ¼ share to be paid into a Henson Trust with Lurlene as the Trustee.

[46] The 2015 Will contains a specific provision reflecting Mrs. Anderson’s instructions that Lurlene was to receive a preferential share and the reasons why as follows:

I am selling my condominium located at Unit 1101, 1275 Markham Road, Toronto, Ontario and my home located at 86 Nortonville Drive, Toronto, Ontario, M1T 2G8, and purchasing a new Property located at 70 Morning Dew Road, Toronto, M1E 3X5 (the subject “Property”). It is my intention that my daughter, Lurlene Elizabeth Anderson, be registered as a joint tenant on title so that upon my death she will enjoy the right of survivorship and continue to have legal claim to the subject Property. It is my express intention that my daughter, Lurlene Elizabeth Anderson, shall have a greater proportional share of my Estate as she is the one who regularly takes care of me, and not my other children.

[47] The instruction confirmation letter went on to provide the usual warnings regarding payments of capital or income to persons in receipt of public benefits and a recommendation that Mrs. Anderson change the beneficiary of her investments and life insurance to her Estate.

[48] Mr. Vanular’s assistant of 22 years, Ms. Valerie Tittel also swore an affidavit dated November 24, 2020. She was not cross-examined on that affidavit. Ms. Tittel deposed that she was present for the execution of the will with Mr. Vanular and Mrs. Anderson on May 27, 2015. There were no other people in the room. Her affidavit speaks for itself with respect to her observations of Mrs. Anderson’s capacity and understanding of the process:

5. After confirming Lorraine's identification, Tim [Mr. Vanular] went through the Will in detail with her. To the best of my knowledge and belief, Lorraine fully understood the contents of the Will.

6. After Tim explained the Will to Lorraine in detail, I personally watched her initial the bottom corner of every single page and sign above her name on the last page of the Will as evidenced by the affidavit of execution I signed on May 27th, 2015 which is attached hereto as Exhibit "A". Based on my interactions with Lorraine, I had no concerns about undue influence or capacity, and she provided clear instructions on the contents of the will.

[49] The notes taken by the lawyer who prepared Mrs. Anderson’s 2014 Will were also produced. The notes are typed and not as detailed as Mr. Vanular’s notes. However, the lawyer, Mr. Luciano, noted that no beneficiaries were present at the meeting or the execution of the will. Mr. Luciano further noted that “Client is informed about assets and liabilities and appears mentally competent. Recent one-week hospital visit for an infection (a few months ago) which was treated at hospital.” Finally, Mr. Luciano noted that Mrs. Anderson attended the meeting with notes prepared by “someone else.”

[50] Larissa put forward no evidence related to her mother’s capacity other than her own affidavit and reference to her mother’s medical records. In her affidavit sworn September 12, 2020, Larissa deposes that her mother was too frail to execute a will on May 27, 2015.

[51] At her discovery on January 11, 2021, Larissa explained that she had been receiving payments under the Ontario Disability Support Program for 12 years. She has been diagnosed as suffering from severe social anxiety and panic attacks and receives ongoing psychiatric treatment. She advised examining counsel that she had taken a clonazepam and lorazepam prior to the examination to assist in reducing her anxiety. Larissa denied that she was bipolar and said that Lurlene told her mother’s lawyer this in order to gain access to funds and exclude her from the Estate.

[52] Larissa further deposed that she did not see her mother between 2015 and the date of her death. She blamed this on Lurlene, claiming that Lurlene deliberately isolated her mother from her. She alleged that Lurlene gave their mother Diet Coke to encourage her death (Q271) and that her mother was terrified of Lurlene (Q384).

[53] During her examination Larissa deposed that the 2014 Will did not reflect her mother’s wishes. She had had lunch with her mother the day her mother gave instructions for her 2014 Will. Her mother told her that she had made Peter the Estate Trustee in that will. Larissa conceded that the signature on the 2014 Will was that of her mother but that the will was not valid because her mother went to the appointment with notes written by someone else. She described the 2014 Will as “fake” and “a fallacy” and written under duress by Lurlene.

[54] Larissa insisted that the indication in Mr. Luciano’s notes that her mother understood the contents of her will was wrong because she had significant medical evidence which demonstrated that her mother did not have capacity.

[55] Larissa also gave evidence that her mother had dementia and that she was blind so it would not be possible for her to “write” a will. The 2015 Will did not “reflect my mum in any way, shape or form” (Q465). She described her sister Lurlene as a “thief” and a “liar” (Q484-485). She also said that Mr. Vanular and Ms. Tittel were liars.

[56] Larissa’s counsel drew the Court’s attention to Mrs. Anderson’s medical history. There is no doubt that Mrs. Anderson suffered from a large number of medical conditions based on the records in evidence, including the following: kidney disease, hypertension, two below knee amputations, macular degeneration, sleep disorders, osteoporosis and vascular disease. Mrs. Anderson had also suffered a series of small heart attacks with the last one being in 2012. Not surprisingly, Mrs. Anderson took a wide variety of medications to control these conditions.

[57] With respect to her capacity, the following excerpts from the medical notes are of interest:

a. A clinical note from Dr. Amy Lau dated October 9, 2014: “daughter concerned re: memory, booked appt for Dec today, after return from Cuba to assess cognitive function.”

b. A clinical note from Dr. Amy Lau dated December 4, 2014: “Pt’s mom 96 yr old, has dementia, unspecified type, has paranoid behaviour. Daughter notices that she is forgetting more, forgets conversations, needs things to be repeated, short term memory impairment mostly. Has noticing symptoms progressively worse in last 6 months. Usu oriented time of day. […] PSW also mentioned about 4 months ago, notices some memory changes. Grand-daughter and son, Trevor, have also noticed. No safety issues at home. […] No significant func decline or affect on function from memory problems. Pt doesn’t really notice short term decline, but notes that she has had short term memory problems for years and has always been forgetful. Pt mostly at home, has retired, daughter planning to enrol her in an adult day program.”

c. A clinical note from Dr. Susanna Fung from August 10, 2016: “Pt does not think memory is any worse than prev – just asks dr to help remember certain things forgets. Just concerned b/c family and friends are starting to be annoyed w/ pt asking same question over and over again. Dtr Lurlene noted that she forgets how many cats she has or what their names are. […] Early vascular dementia: senile dementia, presenile dementia: August 2016 MOCA 22/30. [Emphasis added.]

[58] Larissa’s counsel submitted that the medical records are clear that Mrs. Anderson was suffering from dementia and that the letter from Dr. Fung confirming her capacity should not be accepted. Further, in line with his earlier submissions that this matter is not suitable for summary judgment, Larissa’s counsel submitted that a proper capacity assessment by a qualified assessor should have been provided and was not. As well, at a trial Dr. Fung would be available for cross-examination on her letter.

[59] Lurlene has the onus to prove that her mother had capacity to sign the 2015 Will. Specifically, Lurlene must prove that her mother understood the nature of her estate, who would be the beneficiaries and in this case, the fact that Lurlene would be receiving a preferential share.

[60] This Court relies on the evidence of Mr. Timothy Vanular contained in his notes, affidavit and the evidence given on his cross-examination. Mr. Vanular was professional and thorough in his approach to Mrs. Anderson’s 2015 Will. He was unshaken on cross-examination with respect to his view that Mrs. Anderson understood the extent of her assets, to whom she was giving them, the meaning of her will and the fact that Lurlene was receiving a larger share of the Estate than her siblings.

[61] It was clear that Mrs. Anderson intended to benefit Lurlene because of her caregiving responsibilities. She had to be dissuaded from placing Morning Dew into Lurlene’s name alone. This exchange and the recording of it in Mr. Vanular’s notes is particularly important. That is, Mr. Vanular was able to persuade Mrs. Anderson to re-consider her instructions and place title in joint names; an arrangement that was more beneficial to her. Mrs. Anderson accepted Mr. Vanular’s recommendation. If Lurlene had been as involved in the process as Larissa insisted she was, it is more likely that title would have been placed solely in her name.

[62] It is also clear from Mr. Vanular’s notes that Mrs. Anderson understood why Larissa’s ¼ share of the residue needed to be placed in a Henson Trust. Mr. Vanular noted that the Trust was necessary because Larissa had alcohol problems and was bipolar. While Larissa denied having these conditions, she did not deny having other serious health problems which resulted in her being afraid to leave her home and having to take anti-anxiety medication. She has been unable to work since 2000. Larissa’s insistence that she was her mother’s favourite child and had been promised a larger share of the Estate was not borne out anywhere in the evidence other than Larissa’s uncorroborated statements. Indeed, Mrs. Anderson’s 2014 and 2015 Wills belie such statements.

[63] I do not view Lurlene’s involvement with the arrangements for the initial will appointment or the signing of the 2015 Will as impacting on Mrs. Anderson’s ability to freely decide on how to arrange her Estate. Realistically, what was Mrs. Anderson to do? She was not mobile and quite naturally sought the assistance of her caregiver.

[64] As to Mrs. Anderson being “blindsided” about preparing a new will, I do not accept this argument. There is nothing in Mr. Vanular’s notes which would indicate that Mrs. Anderson was resistant or, more importantly, surprised at being asked to provide new will instructions.

[65] With respect to the specifics of Mrs. Anderson’s capacity I again rely on the process implemented by Mr. Vanular. After receiving Mrs. Anderson’s instructions on March 23, 2015 he requested that she obtain a capacity letter. The letter was obtained from Dr. Susanna Fung. The medical records produced in this case clearly show that Dr. Fung had been involved in Mrs. Anderson’s care for years. I find that Dr. Fung was in a position to give her view on Mrs. Anderson’s capacity at the relevant time. In early April, Mr. Vanular sent a confirming letter to Mrs. Anderson setting out all of her will instructions.

[66] While it is true that no formal capacity assessment was obtained, Dr. Fung’s letter was more in the nature of confirmation of capacity since Mr. Vanular’s notes make it clear that he was satisfied that Mrs. Anderson was competent to give instructions and engaged in the process. He confirmed in his cross-examination that Mrs. Anderson did not demonstrate any signs of dementia during his interviews with her and that she was lucid, cooperative and engaging. In these circumstances I do not find that a more formal capacity assessment was required.

[67] Turning to the medical evidence produced in this case, I find that it does not confirm, as alleged by Larissa, that Mrs. Anderson did not have the requisite capacity to execute her 2015 Will. The fact that Mrs. Anderson had multiple medical conditions does mean that her capacity to execute the 2015 Will was affected. I note as well that the more serious concerns related to an advancing dementia are recorded in August 2016, more than a year after the 2015 Will was executed. The notes in 2014 which reflect a concern by family members about their mother’s forgetfulness are tempered by the doctor’s conclusion that any memory problems did not affect her ability to function.

[68] Larissa’s counsel stated in his factum at para. 30 that Mrs. Anderson had advanced dementia after the summer of 2014. There is no evidence to support such a blanket and conclusory statement.

[69] In summary, Larissa has failed to provide any corroboration of her allegations that her sister “wrote the Will” or that her mother did not have the capacity to give instructions or understand the nature of those instructions. It was clear from the tone of Larissa’s discovery that she is very angry with her sister and blames her for the fact that she received a smaller share of the Estate than her siblings. However, if Lurlene was truly as in control of the process and as conniving as Larissa contends, there is a question as to why Larissa would have received anything at all under either the 2014 or the 2015 Will.

B. Were There Suspicious Circumstances Related to the Formation or Execution of the Will?

[70] I now turn to the issue of suspicious circumstances and the factors set out in Royal Trust:

(1) The extent of physical and mental impairment of the testator around the time the will is signed;

(2) Whether the will in question constitutes a significant change from the former will;

(3) Whether the will in question generally seems to make testamentary sense;

(4) The factual circumstances surrounding the execution of the will; and

(5) Whether a beneficiary was instrumental in the preparation of the will.

[71] The issues related to any physical or mental impairment of the Testator have already been reviewed above. While Mrs. Anderson was dependent on Lurlene because of her physical limitations, there was no evidence that she was unable to function cognitively. This was confirmed by Mr. Vanular, Dr. Fung and in the medical notes.

[72] The 2015 Will was not significantly different from the 2014 Will. The main differences were the placement of Larissa’s share in a Henson Trust and the change in the gifting of real property as a result of the sale of the Markham Condo and the Nortonville property. Of importance is that Larissa’s share of the Estate did not change in either will, just the manner in which she was to receive it.

[73] Larissa did not contest that the signature on the 2014 Will was her mother’s but viewed the will itself as “fake” because of Lurlene’s influence. The sole basis for the challenge to the 2014 Will was the reference in Mr. Luciano’s notes that Mrs. Anderson brought notes that were prepared by someone else. There was no evidence as to who wrote those notes. It is this Court’s view that this factor alone cannot form adequate grounds for a challenge to the 2014 Will and is completely uncorroborated.

[74] In her evidence on discovery Larissa attempts to connect the “notes” issue to undue influence by Lurlene or a lack of capacity on the part of her mother. There was not a scintilla of evidence to back up this as a foundation to set aside the 2014 Will. However, given my findings in this case, even if Lurlene was correct about the 2014 Will, the 2015 Will stands.

The Expert Evidence

[75] Larissa makes two very serious allegations about the 2015 Will. First, that Lurlene forged her mother’s signature and initials on the 2015 Will and second, that Mr. Vanular and Ms. Tittel conspired with Lurlene to allow the forgery to be perpetrated.

[76] On the issue of the forgery, Larissa tendered two expert reports both authored by Ms. Brenda Petty, a Certified Questioned Document Examiner. The first report was dated December 20, 2019. Ms. Petty was asked to compare the signatures of Lurlene Anderson and her mother. Ms. Petty was given samples of Mrs. Anderson’s signature from the 2014 Will, the 2015 Will, and signatures on nine documents related to her real estate transactions in April 2015. There was also an independent undated sample of her handwriting.

[77] Samples of Lurlene’s signature were also provided from nine different documents related to the same April 2015 real estate transaction, including some initials. Lurlene always signed her name “L Anderson.”

[78] Mrs. Anderson’s given names were Lorraine Elizabeth Agnes. On all of the samples but one she signed her name “E Anderson” or “EA Anderson.” On the 2015 Will (including her initials) she signed “L Anderson.” The examiner concluded that this brought the 2015 Will into suspicion. The examiner also noted that the “LA” initials were circled which was not Mrs. Anderson’s writing habit. Her overall conclusion in the December 2019 report was that the signature and initials of Mrs. Anderson on the 2015 Will were “suspicious.”

[79] Ms. Petty provided a supplementary report dated April 8, 2020 upon receiving further handwriting samples. The additional samples included Mrs. Anderson’s signature on photo identification dated July 27, 2013, POAs dated August 12, 2014, and a passport dated August 4, 2011. The previously provided documents were also compared with the new documents. In the April 2020 report the examiner concludes that the signature on the 2015 Will is not that of Mrs. Anderson because it is signed “L. Anderson” and not “E. Anderson.” The examiner concluded that the signature on the 2015 Will is that of Lurlene Anderson.

[80] I reject the findings in Ms. Petty’s reports for the following reasons:

a. Mrs. Anderson had three first names: Lorraine, Elizabeth and Agnes. On the 2015 Will she chose to sign as “L. Anderson” [Lorraine Anderson] and not her usual signature as “E. Anderson” [Elizabeth Anderson]. This alone does not invalidate the will.

b. Mr. Vanular deposed that he required Lurlene to swear an affidavit that Lorraine Elizabeth Anderson was one and the same person as Elizabeth Anderson. This was for the purpose of the Nortonville property sale, as Mrs. Anderson had taken title to that property as Lorraine Elizabeth Anderson. This is an example of Mrs. Anderson using her first names interchangeably. A further example is the Notice of Application for a Certificate of Appointment of Estate Trustee with a Will which refers to the “Estate of Lorraine Elizabeth Agnes Anderson (also known as Elizabeth Agnes Anderson).” In Larissa’s Notice of Objection she refers to her mother being known as both Lorraine Elizabeth Agnes Anderson and Lorraine Elizabeth Anderson.

c. Ms. Petty’s reports were attached as exhibits to Lurlene’s affidavit. This is not an acceptable form of providing expert evidence to the Court as it shields the expert from cross-examination. There was no affidavit from Ms. Petty confirming the contents of the reports.

d. The reports do not comply with the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, in that there is no acknowledgement of the expert’s duty as required by Rule 53.03.

[81] In Sanzone v. Schechter, 2016 ONCA 566, 402 D.L.R. (4th) 135, at para. 16, the Court of Appeal dealt with the correct way of adducing expert evidence on a motion as follows:

As a general rule, when a party seeks to adduce expert evidence on a summary judgment motion, the evidence of the expert must comply with rule 53.03, unless the opinion evidence is based on the witness’ observation of or participation in the events in issue, as explained in Westerhof v. Gee Estate, 2015 ONCA 206, 310 O.A.C. 335, at paras. 60-62. A party can file either an affidavit from the expert containing his or her opinion or an affidavit from the expert with the report attached: Danos v. BMW Group Financial Services Canada, a division of BMW Canada Inc., 2014 ONSC 2060, [2014] O.J. No. 1802, at para. 29, aff’d 2014 ONCA 887.

[82] Ms. Petty’s reports tendered in this case do not comply with Rule 53.03 nor is there a signed Acknowledgement of Expert’s Duty. This alone is fatal to the acceptance of the report apart from the other issues raised above.

[83] With respect to other factors related to the execution of the 2015 Will, Larissa insists that Lurlene conspired with Mr. Vanular and his assistant and were complicit in the forgery of the will by Lurlene.

[84] This argument is without any foundation and borders on ludicrous. First, the affidavit evidence of Mr. Vanular (as well as his evidence on examination) and the affidavit evidence of Ms. Tittel is clear that Lurlene was not present when Mrs. Anderson signed her will. Both Mr. Vanular and Ms. Tittel deposed that the execution of the will was done without interference from Lurlene or any other third party.

[85] Second, it would be odd indeed that a practitioner of Mr. Vanular’s experience and vintage and his long-time assistant would risk their reputation and professional status to engage in a fraud of the magnitude suggested by Larissa.

[86] Finally, Larissa’s accusations related to the fraud are based solely on her uncorroborated and self-serving affidavit evidence. Larissa is required to put “her best foot forward” to defend the motion for summary judgment. This is her best evidence of fraud and it is simply insufficient.

[87] It is true that Lurlene took her mother to the will signing appointment and did assist with communicating her instructions to Mr. Vanular. However, Mrs. Anderson was infirm and immobile. She required assistance. That does not mean that such assistance gives rise to suspicious circumstances. As already outlined above, significant steps were taken by Mr. Vanular to ensure that Mrs. Anderson’s instructions were given with the requisite capacity and that the instructions were her own.

[88] The 2015 Will makes sense. A change to the 2014 Will was recommended by Mr. Vanular’s office because of the sale of the Nortonville property and the purchase of another property. The only other change was the placement of Larissa’s share into a Henson Trust, an advantage to Larissa who is in receipt of ODSP. Larissa’s share was otherwise unchanged from the 2014 Will. No beneficiary was removed from the will and the division of the residue of the Estate also remained the same.

[89] In summary, I do not find that the factors set out in Royal Trust are present in this case with respect to suspicious circumstances. While Lurlene was necessarily involved in making arrangements for a change to be made to her mother’s will and helped carry out those arrangements, nothing rises to the threshold of being a suspicious circumstance.

[90] Further, Mrs. Anderson had the requisite testamentary capacity to give instructions in relation to her will and understood how she was dividing her estate between her children. There were no suspicious circumstances with respect to either the formation or execution of the will, and the expert evidence tendered along with Larissa’s uncorroborated evidence is insufficient proof of the complex conspiracy alleged.

THE MOTION TO AMEND

[91] The circumstances related to this motion and the requested amendments to the Notice of Objection have already been set out above.

The Positions of the Parties

Lurlene

[92] Lurlene’s position is that the amendments to the Notice of Objection sought by Larissa lack a legal basis and are an abuse of process.

[93] Paragraphs 9-15 of the Amended Notice of Objection reference specific financial transactions which are not properly the subject of a Notice of Objection. Such challenges are properly brought in an application requiring Lurlene to pass her accounts. No such application is before the Court.

[94] Further, Larissa has not produced any tangible evidence of financial mismanagement or that Lurlene exercised any control over her mother’s finances. As such, the allegations are baseless and highly prejudicial to Lurlene (who cannot be compensated by costs because Larissa is on ODSP).

[95] Larissa’s “suspicions” about her sister cannot ground her proposed amendments to the Notice of Objection and would inevitably lead to a motion to strike.

[96] The objections related to the will forgery and conspiracy must be struck for reasons already given in this judgment.

[97] With respect to proposed Objection #7, Lurlene denies that she evicted Jasmine or asked her to leave as alleged. According to Lurlene’s evidence on examination Jasmine contacted her to indicate that caring for Mrs. Anderson was becoming too much for her. Initially, Jasmine only oversaw Mrs. Anderson’s meals to ensure she ate in accordance with her diabetic requirements. However, as caring for Mrs. Anderson became more demanding, it was agreed that Lurlene would move in with her mother full time.

[98] With respect to that portion of Objection #7 that alleges that Lurlene sequestered Mrs. Anderson from all contact so that she could “dominate my mother unchecked and unchallenged,” that allegation also lacks corroboration from Larissa.

[99] Lurlene’s evidence on discovery was that she did not sequester her mother. Her brothers came to visit on a regular basis. This is confirmed by Doug’s affidavit dated November 16, 2021 in which he confirms he was never prevented from seeing his mother and in fact visited with her regularly after church on Sundays. Similarly, Peter’s affidavit sworn November 18, 2021 confirms that he was encouraged by Lurlene to spend one-on-one time with his mother and did so. Peter added that Lurlene arranged for and took their mother to all of her appointments. Neither Peter nor Doug were cross-examined on their affidavits.

[100] With respect to Objection #8, there was no medical evidence that Mrs. Anderson was “almost always drifting in and out of consciousness as she also suffered from anemia and dementia.” The medical records and the testimony of Mr. Vanular in fact support that Mrs. Anderson may have been forgetful at times but she was engaged and capable.

[101] With respect to Objection #10, the bank statements in Lurlene’s Affidavit of Documents confirm that she did not withdraw $320,000 from her mother’s bank account. Rather, the funds were transferred to other CIBC accounts owned by Mrs. Anderson and put into other investments. The same process occurred in relation to the $190,000 referred to in Objection #11 as evidenced by bank statements provided by Lurlene. Larissa’s counsel reminded the Court that she did not have access to any of her mother’s bank accounts.

[102] With respect to Objection #15, this relates to an investment account owned by Mrs. Anderson of which Lurlene was the designated beneficiary. Lurlene redeemed the investment in the amount of $54,979.69 on October 29, 2018.

[103] Objections #12-14 relate to the sale of the Markham Condo and the Nortonville property and the purchase of Morning Dew.

[104] The following facts are relevant:

a. As Morning Dew was purchased before the Markham Condo and the Nortonville property were sold, Mrs. Anderson and Lurlene obtained a mortgage with Home Trust in the amount of $416,250.00 (the “Home Trust Mortgage”). Mrs. Anderson and Lurlene provided Mr. Vanular with a cheque in the amount of $194,307.17 being the balance due on the closing of Morning Dew.

b. A year later in 2016, the net proceeds from the sale of the Nortonville property ($244,844.08) and the Markham Condo ($215,873.74) were used to pay off the Home Trust Mortgage, which was discharged on July 13, 2016.

[105] With respect to Objection #9 and the alleged embezzlement of funds from the sale of the Nortonville property, Mr. Vanular’s evidence was that the Nortonville property was an investment property owned by Kubbie Construction and Mrs. Anderson. Each of them invested $130,000 into the home which was returned to them on sale. After the renovations had been completed by Kubbie Construction and the home sold, Mrs. Anderson and Kubbie Construction split the remaining proceeds after repayment of their initial $130,000 investment. Each received ½ of the $229,688.15, or $114,844.07. Lurlene had nothing to do with these transactions. However, the funds received from the Nortonville property sale were used to pay down the Home Trust Mortgage on Morning Dew in 2016.

[106] Larissa did not indicate an intention to amend her Notice of Objection until two years after Affidavits of Documents had been exchanged. She also did not indicate such an intention on June 9, 2021 at the scheduling appointment for this motion.

Larissa

[107] Larissa contends that any contract with Kubbie Construction is unenforceable as it deals with land and therefore must be in writing. No invoice for the services performed has ever been found.

[108] Rule 26.01 is mandatory with respect to leave to amend even where prejudicial unless the prejudice cannot be compensated by way of costs or an adjournment and a tenable cause of action or defence is disclosed. The Court should take a generous view when dealing with requests to amend even where the amendment is not artfully pleaded.

[109] In this case Lurlene has not articulated why the amendments are untenable or prejudicial to her. This is a prima facie case of undue influence between an elderly dependent parent and an adult child. The dependency creates the opportunity for undue influence and is one of the reasons why a trial is required.

[110] Dr. Fung is not qualified to determine whether Ms. Anderson had the capacity to change her will. She is not listed in the roster of capacity assessors in Ontario. She must come to Court and give oral evidence.

[111] Mr. Vanular was not forthcoming in his examination, refused to answer simple questions such as why Ms. Anderson could not call him herself to set up the appointment for a new will.

Analysis

[112] In Marks v. Ottawa (City), 2011 ONCA 248, 280 O.A.C. 251, at para 19, the Ontario Court of Appeal affirmed the test for amending pleadings:

(i) An amendment should not be allowed if it would cause an injustice not compensable in costs.

(ii) The proposed amendment must be shown to be an issue worthy of trial and prima facie meritorious.

(iii) No amendment should be allowed which, if originally pleaded, would have been struck.

(iv) The proposed amendment must contain sufficient particulars.

[113] The amendments to the Notice of Objection sought by Larissa do not meet the test in Marks, and leave to amend should not be granted. Dealing with the Objections in turn below, I find that they lack foundation, are not appropriate for a Notice of Objection, and are unmeritorious. Given that the Notice of Objection and all proposed amendments will be dismissed, I will deal with all of the Objections including the original Objections.

[114] Objections #1, 4, 5, and 6 have been dealt with in the reasons for granting the motion for summary judgment. That is, I have already found the following:

a. Mrs. Anderson had capacity to execute the 2015 Will.

b. The handwriting is not a forgery but in fact that of Mrs. Anderson.

c. While Lurlene made the initial contact with Mr. Vanular’s office, Mrs. Anderson was capable of giving instructions to Mr. Vanular herself and I have already found that she did so.

d. Lurlene did not “write” the will for her mother but it was in fact drafted in accordance with her instructions and confirmed as per the instruction letter from Mr. Vanular dated April 6, 2015.

[115] Objections #2 and 3 are bald allegations and not appropriate objections. In any event, no evidence was presented by way of corroboration for those allegations.

[116] Objection #7 is without foundation or corroboration. It was denied by Lurlene on examination. No affidavit was provided from Jasmine to corroborate that she was “evicted” by Lurlene. The affidavits of Doug and Peter confirm Lurlene’s evidence that she did not sequester her mother but encouraged visits from family members and facilitated such visits.

[117] Objection #8 is not supported by the medical evidence or the evidence of Mr. Vanular, Ms. Tittel or Lurlene. Mrs. Anderson did have mild dementia but her doctor confirmed her capacity to execute the 2015 Will. The medical notes confirm that she still had cognitive function. While she had multiple medical issues, these did not affect her capacity. The exchange between Mr. Vanular and Mrs. Anderson about how title to Morning Dew was to be held was demonstrative of Mrs. Anderson’s ability to receive her lawyer’s advice and decide to follow it.

[118] The allegations of undue influence were also found to be without foundation. The notion that Mr. Vanular and Ms. Tittel lied in their affidavits and conspired with Lurlene so she could forge her mother’s signature on the 2015 Will is absurd.

[119] Objections #9 through 15 were satisfactorily explained by way of bank statements provided in Lurlene’s Affidavit of Documents and the evidence on her examination for discovery as summarized in the recounting of financial transactions contained in the factums prepared by Lurlene’s counsel for the summary judgment motion and the response to the Motion to Amend. However, to be clear, an explanation is technically not required. Such allegations of financial abuse are not appropriate for a Notice of Objection and require a demand for an Application to Pass Accounts. No request to pass accounts has ever been made by Larissa.

[120] I have reviewed Larissa’s Reply in this matter. Most of it is not in the nature of Reply but is simply a re-argument of her defence to the summary judgment. On the issue of the Kubbie Construction contract, Larissa fails to mention that Kubbie was a 50% owner of the subject property. As for the provision of services, such contracts are not necessarily required to be in writing.

[121] Finally, I note that the Motion to Amend was not filed for over a year after the Original Notice of Objection and Motion for Summary Judgment were served. No new evidence had been uncovered in the interim. Rather, the amendments read as a rather random collection of new allegations which are highly prejudicial to Lurlene, without legal foundation and not appropriate for a Notice of Objection.

[122] The motion for leave to amend is therefore dismissed and the Notice of Objection set aside.

Orders

[123] Given all of the above I make the following Orders:

a. The Applicant’s motion for leave to amend the Notice of Objection is dismissed.

b. The Respondent’s motion for summary judgment is granted and the 2015 Will is declared valid.

c. The Notice of Objection filed by Larissa Anderson is hereby set aside, and a Certificate of Appointment of Estate Trustee with a Will shall be issued forthwith to Lurlene Anderson.

Costs

[124] The parties shall file written submissions on costs of no more than 3 pages in length exclusive of any Bill of Costs or Offer to Settle. Any case law references must be hyperlinked. Costs are due on a seven-day turnaround starting with Lurlene Anderson seven days from the date of release of this judgment. If no costs are received within 35 days of the release of this judgment, costs shall be deemed to be settled. Costs submissions are to be sent electronically to my assistant.

C. Gilmore, J.

Released: December 20, 2021