Court File and Parties

COURT FILE NO.: 2036/20 DATE: 20220308 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Ronald Shawn Young, Applicant AND: Keri Prychitko, Amber Marie Young, Devin Ronald Young, Patti MacKinnon, Mallory Keri Lynn Prychitko and James Jonathan Prychitko, by their Litigation Guardian, THE CHILDREN’S LAWYER, Respondents

BEFORE: Justice M.D. McArthur

COUNSEL: Ian S. Wright, for the Applicant Howard J. Wolch, for the Respondent, Keri Prychitko Nina Ghandi, for the Respondents Mallory Keri Lynn Prychitko and James Jonathan Prychitko

HEARD: October 25, 2021

Endorsement

[1] Ronald Wayne Young, the deceased, died on September 22, 2020 at age 75 of liver and kidney failure at University Hospital in London. He previously had a Will completed in 2016 (2016 Will). On September 3, 2020, 19 days before his death, he had executed a subsequent Will (2020 Will). His wife had predeceased him. The applicant and Ms. Prychitko are the deceased’s children.

[2] The deceased’s son was to be the estate trustee under both Wills. The earlier 2016 Will directed that title of the home be transferred to the deceased’s son and the respondent, Ms. Prychitko, as joint tenants, each of the deceased’s grandchildren were to receive $10,000 and the residue was left to his deceased’s son.

[3] The 2020 Will directed the deceased’s son to be left the home, $25,000 was to go to each of the deceased’s grandchildren, a $50,000 payment was to be made to Ms. Prychitko, automobiles were to one of the deceased’s friends and the residue to the deceased’s son.

[4] Ms. Prychitko filed a Notice of Objection to the 2020 Will alleging the deceased lacked the testamentary capacity and was the subject of undue influence.

[5] Justice George’s decision on April 28, 2021, reported as Young v. Prychitko, 2021 ONSC 3150, declined to direct the production of all medical, legal and financial records of the deceased as had been requested by the respondent. He was not satisfied that Ms. Prychitko’s evidence met the minimal threshold as required in Neuberger Estate v. York 2016 ONCA 191 at para 88, was premature and, without more, would amount to a fishing expedition.

[6] Justice George then summarized Ms. Prychitko’s evidence as follows:

a. Her evidentiary record was lacking and was largely reliant on what others had told her; b. Much of her information was dated and she had not seen nor communicated with her deceased father in many years; c. Her evidence was largely comprised of assumptions, bald assertions, conclusory statements and opinions about the impact of the deceased’s alcoholism and resultant psychological issues for which there was little evidentiary basis.

[7] Justice George ordered directions and permitted Ms. Prychitko the opportunity to file further evidence in relation to the threshold and permitted the applicant to respond.

[8] Ms. Prychitko since has also now brought into issue whether the deceased had testamentary capacity when he made both the Wills in 2016 and 2020 as well as inter vivos transfers of RRSPs, TFSAs, investment accounts and bank accounts at the Bank of Nova Scotia and the CIBC.

The Issues

[9] The issue is, firstly, whether Ms. Prychitko has met a minimum threshold of evidence to call into question the validity of the 2016 Will, the 2020 Will and the transfers. The tests are: (1) whether there is some evidence that the deceased lacked the testamentary capacity and/or was the product of the 2016 Will, the transfers or 2020 Will or (2) the testator was the subject of undue influence the applicant. If so, secondly, has the applicant successfully answered such evidence.

Positions of the Parties

[10] Keri Prychitko seeks production of her deceased-father’s medical and financial records including the deceased’s RRSP’s, TFSA’s, investment accounts and bank accounts for the last few years. The lawyers’ files regarding the wills have been produced.

[11] The respondent submits that the deceased’s competence and capacity to make either will was affected due to his alcoholism and end-stage liver disease and that his life-long alcoholism fueled his abuse of her over her life. She also submits due to her applicant-brother’s abusive and controlling nature, the applicant exercised undue influence over the deceased involving both wills and the transfer of RRSP’s and TFSA’s.

[12] The applicant submits that Keri Prychitko has failed to meet the minimal evidentiary threshold to require the testamentary documents to be proven and that the Notice of Objection should be struck. Alternately, if the threshold has been met on some or all of her objections, he requests the court provide directions as to the process to address the remaining objections.

The Decision of Justice George

[13] Justice George conducted a considerable earlier review of the evidence before him in relation to the claim of suspicious circumstances raise by Keri in relation to the 2016 Will. I need not repeat that evidence in those reasons. The decision now depends on the totality of the evidence before this court.

[14] In addition to the materials that were before Justice George, I have also considered that:

a. The respondent has filed affidavits dated June 14, 2021 and July 21, 2021 with exhibits attached, the affidavit of Dr. Schott Shulman dated June 7, 2021 with exhibits attached, Dr. Shulman’s cross examination taken July 30, 2021, the examination transcripts of Diane Browning and Alexa Attard, both taken August 3, 2021, the cross examination of the applicant and Deryck Walden taken on August 11, 2021, and b. The applicant has filed an affidavit sworn July 9, 2021 and the affidavits of Jim Root and Pat Whalen, both dated July 9, 2021.

[15] In addition, since the hearing and submission, the court received correspondence from counsel for the parties about the recent decision of the Ontario Court of Appeal. There is refence to that case later in this decision.

The Legal Principles

[16] As I outlined previously in Naismith v. Clarke, 2019 ONSC 5280, the legal principles can be summarized as follows:

a. The court’s role is not to simply to adjudicate upon a dispute between the parties. It is also the court’s function and obligation to ascertain and pronounce what documents constitute the testator’s last Will and are entitled to be admitted to probate. This recognizes the court’s special responsibility to the testator who cannot be present to give voice to his or her true intentions: See Neuberger Estate v. York 2016 ONCA 191 at para. 68. b. The court has discretion whether to order that a testamentary instrument be proved, as well as the manner in which the instrument is proved: See Neuberger Estate v. York, supra at para. 87. c. Before the court will accede to a request that the testamentary instrument be proved, an interested person must meet some minimal evidentiary threshold. If the person fails to point to evidence, which if accepted, would call into question the validity of the testamentary instrument, the application should be dismissed: See Neuberger Estate v. York, supra at para. 89. d. The evidentiary basis must be more than pleading facts to support an action. e. If the applicant adduces or points to evidence that calls into question the validity of the testamentary instrument and the propounder does not successfully answer, the court should generally order that the testamentary instrument be proved. f. If the instrument is to be proved, the court has recourse to the powers of r. 75.06(3) and ensure that meaning is given to both r. 75.01 and 75.06(3) and meet the concerns of the needless depletion of assets. The issue then is what process will best achieve the outcome, be consonant with the goals of the civil justice system and recognize the particular concerns in the estate litigation context: Neuberger Estate v. York, 2016 ONCA 191.

[17] In Neuberger Estate v. York, the Ontario Court of Appeal granted an appeal where the court found (1) that the motions judge had either misapprehended or rejected one of the beneficiaries’ evidence in relation to the degree of relationship that person had with the testator and (2) that the motions judge misapprehended the evidence of the explanation why the beneficiary brought the Will challenge. Justice Gillese cites at paras. 92 to 95 two cases where there was no evidence that the Wills were invalid.

[18] In Vout v. Hay the Supreme Court of Canada clarified that suspicious may be raised by:

(1) circumstances surrounding the preparation of the will, (2) circumstances tending to call into question the capacity of the testator, or (3) circumstances tending to show that the free will of the testator was overborne by acts of coercion or fraud,

[19] The court also went on to direct:

26 Suspicious circumstances in any of the three categories to which I refer above will affect the burden of proof with respect to knowledge and approval. The burden with respect to testamentary capacity will be affected as well if the circumstances reflect on the mental capacity of the testator to make a will. Although the propounder of the will has the legal burden with respect to due execution, knowledge and approval, and testamentary capacity, the propounder is aided by a rebuttable presumption. Upon proof that the will was duly executed with the requisite formalities, after having been read over to or by a testator who appeared to understand it, it will generally be presumed that the testator knew and approved of the contents and had the necessary testamentary capacity.

27 Where suspicious circumstances are present, then the presumption is spent and the propounder of the will reassumes the legal burden of proving knowledge and approval. In addition, if the suspicious circumstances relate to mental capacity, the propounder of the will reassumes the legal burden of establishing testamentary capacity. Both of these issues must be proved in accordance with the civil standard. There is nothing mysterious about the role of suspicious circumstances in this respect. The presumption simply casts an evidentiary burden on those attacking the will. This burden can be satisfied by adducing or pointing to some evidence which, if accepted, would tend to negative knowledge and approval or testamentary capacity. In this event, the legal burden reverts to the propounder.

[20] This court is mindful of the often-cited test for undue influence from decision in Scott v. Cousins that “to be undue influence in the eye of the law there must be - to sum it up in a word – coercion”. The influence imposed by some other person on the testator must be so overpowering that the document reflects the will of the influencer and not that of the deceased. See Kates Estate, 2020 ONSC 7046 at para 92.

[21] The history of the parties relationship is vital to an examination of capacity where undue influence is, or could be, present period indications for the potential for undue influence include where the testator is dependent on the beneficiary for emotional and physical needs, where the testator is socially isolated, where the testator has experienced recent family conflict, where the testator has experienced recent bereavement, where the testator has made a new will not consistent with prior wills, and where the testator has made testamentary changes simultaneously with change to other legal documents such as powers of attorney. See Gironda v. Gironda, 2013 ONSC 4133.

[22] I have also considered the decisions including Campbell v. Campbell, 2018 ONSC 6336, Carlson v. Carlson, 2018 SKQB 196, Martin v. Martin, 2018 ONSC 1840, Shannon v. Hrabovsky, 2018 ONSC 6953 and Seepa v. Seepa, 2017 ONSC 5386, some of which Justice George cited in his earlier decision. There are additional cases that were provided by counsel that I have also considered including the most recent decision of the Ontario Court of Appeal in McGrath v. Joy, 2022 ONCA 119. I will specifically refer to some of these cases where necessary in this decision.

Cases where a minimal evidentiary basis was established

[23] In Seepa v. Seepa, a minimal evidentiary basis was made out where the youngest son stood to inherit the entire estate under a Will made four years before the deceased’s death. In a prior Will dated a year earlier, the son was to receive a 20 percent interest. The same lawyer drafted both Wills. Justice Meyers refers to the beneficiary’s physical proximity as caregiver to the testator; a joint account between the beneficiary and the testator; and that one of his other children were disinherited, amongst other points mentioned in para. 42.

[24] Justice Meyers, somewhat like Justice George’s earlier decision in this case, was expressly concerned with the goals of affordability in a modest case and a reluctance to consign estates and beneficiaries to intrusive, expansive and expensive, slow standard-form fishing expedition. Justice Meyers customized the process to the evidence to promote these goals.

[25] In Martin v. Martin, the deceased had executed primary and secondary Wills four years before her death. There were four adult children. Under the primary Will, one beneficiary was to have exclusive use on a property paid for by the estate with the residual property to be divided equally between the four adult children. A secondary Will held assets in trust for a specified date with a power to distribute and encroach on the capital in certain percentages before a specified date. On that specified date, there was to be a distribution to only grandchildren, not to any of children of the deceased.

[26] The evidence that supported the objection is outlined in para. 11 with the response in para. 12 of the decision. Justice Pattillo states the test for suspicious circumstances is, namely this: is there some evidence, if accepted, that would tend to negate knowledge and approval of testamentary capacity. The evidence must be more than suspicion and, at this stage, the threshold for evidence is low in view of documentary discovery. He found the threshold had been met in that case.

[27] In Campbell v. Campbell, the minimal evidentiary threshold was likewise established. The case involved allegations the testator lacked testamentary capacity, she did not have knowledge nor approve the contents of the Will and undue influence. The matter was a contest between two adult children of the deceased that included disputes about and the extent of payments over time and the purchase of real estate by one adult child from funds from the deceased prior to the deceased’s death. There is also evidence suggesting the testator had issues with her memory. One of the adult children had assumed a caregiver roll in relation to the testator.

[28] In Shannon v. Hrabovsky, there was a dispute between two adult children of the testator who had suffered a stroke that left him severely impaired. There was significant and different medical evidence from the parties presented. The testator suffered another stroke later that year as well as additional strokes in later years with resulting dementia. He became dependent on others.

[29] The testator had earlier transferred a cottage to the son. After the first stroke, the testator signed three subsequent Wills. A significant dispute arose concerning a use of the testator’s credit cards by the daughter and a demand letter sent to the sister as arranged by her brother who was also the son of the testator. The final Will was signed after the demand letter.

[30] Justice Wilton-Siegel had no difficulty in finding a number of suspicious circumstances that collectively suggested a lack of testamentary capacity with respect to the last Will. Among other findings, the judge found some actions and conduct that were inconsistent on the facts and were also contrary to the testator’s past-stated intentions.

Cases where the minimal evidentiary basis was not established

[31] Additional cases were also provided by the parties, among which have also been considered and some of which will be expressly referred to.

[32] In the most recent case of Royal Trust Corp. of Canada v. Saunders, 2006 CarswellOnt 3478, the testator largely disinherited two adult adopted children that had been major beneficiaries in an earlier Will. In that case, Justice Blishen indicated if the testator had capacity and was not subject to undue influence at the time of the execution of the Will, its validity and effect are not open on the ground that the children were virtually disinherited. The focus often is on testamentary capacity in that the testator must have a sound and disposing mind. As summarized by Justice Blishen, citing earlier cases, at para 58:

To have testamentary capacity, the testator must be of sound mind, memory and understanding or, to put it another way, he/she must have a sound and disposing mind. The elements of a sound in disposing mind are, that on his/her own initiative and volition, the testator:

1. understands the nature and effect of a will;
2. recollects the nature and extent of his or her property;
3. understands the nature of what he or she is giving under the will;
4. remembers the people he or she might be expected to benefit under his or her will; and,
5. understands the nature of the claims that may be made by persons he or she is excluding under the will.

[33] It is well-recognized that a will-maker may be capricious and unfair in making dispositions but that does not of itself amount to lack of capacity. Even will-makers who were mentally ill and suffered from confusion, that condition is not determinative as to whether the will-maker had the requisite testamentary capacity. Cognitive impairment or confusion alone is not grounds for declaring a person incapable of making a will. See also Weidenberger Estate, Re 2002 ABQB 861, [2002] A.J. No. 1157 at para 17.

[34] It was not disputed in Royal Trust Corp. of Canada v. Saunders that the Will met all the technical requirements of the SLRA nor that the testator did not lack knowledge or approval of the contents of the Will. The justice found that in view of the lawyer’s preparation, instructions and execution of the Will by the testator, there was the presumption that the testator knew and approved of the contents and had the necessary testamentary capacity.

[35] Justice Blishen noted some evidence of suspicious circumstances in relation to the testator’s capacity as well as some decline in mental function and mental acuity, however, she found the testator was aware of the normal beneficiaries and clear of the testator’s wishes to give to the hospital charity otherwise. The testator was not found mentally impaired to the extent that would raise an issue or tend to negative testamentary capacity.

[36] Justice Blishen found that the applicant had discharged the burden to prove the testator’s testamentary capacity when he signed the will in circumstances included testator who was private and independent and had increasingly become housebound, resentful, crochety and mean-spirited and made statements about his family that were unreasonable, unfair and somewhat irrational but he was not found to be insanely delusional.

[37] In Kay v. Kay Sr., 2019 ONSC 3166, testamentary capacity was found to have been established after taking into account the totality of the evidence including retrospective neuropsychological evidence and the evidence of the lawyer who took instructions, prepared and saw to the execution of the will of the testator. In that case, the court found the neuropsychological evidence was of modest weight but not inherently reliable since the assessment was not an exhaustive review of the testator’s life in and around the time of signing.

Analysis

[38] The deceased, Ronald Wayne Young, died on September 22, 2020. He was 75 years of age. He owned and resided in his home at 1370 Rosenberg Road, London.

[39] Mr. Young had been predeceased by his wife, Sharron Marie Young, who died March 27, 2015. They had two children: the applicant and the respondent, Keri. The applicant acknowledges that his father could be tough and difficult and was a colourful character with lots of charisma and charm.

[40] The deceased had long worked at the London Free Press, had an initial electrical trade background and worked on equipment. In retirement, he continued to be social with friends, family and relatives and maintained close relationships with other individuals and was active in hunting, fishing and enjoyed sports including volleyball and baseball.

[41] The applicant and the respondent, Keri Prychitko, have long been estranged. Keri maintains the applicant shamed and abused her. The applicant denies this. He indicated he did not have communication with Keri for years and nor did he have her contact information at the time of their mother or father’s deaths.

[42] Keri indicates that the family was dysfunctional, and her father was an inveterate alcoholic who was incapacitated by chronic alcoholism. The applicant enjoyed a wonderful relationship with both parents and, even though the deceased did drink to excess at times and made his own wine, he was not thought of as an alcoholic, did not spend great amounts of times in activities necessary to obtain alcohol nor in the recovery from its effects. The testator fulfilled his major obligations at work and home throughout the years.

[43] The applicant described his father was active through his life with other social, recreational and sporting activities and only had movement problems in the last months of his life when he used a cane. The applicant also indicated there were no changes in the deceased’s mood or personality nor did he ever observe any impairment of the deceased’s intellect prior to his death nor any depressed levels of consciousness, sleep disturbances, confusion, incoherence or poor judgment at any point. By all accounts, the deceased lived independently and was active and mobile almost right up until at least his hospital admission and death.

[44] The respondent submits a reconciliation with her father occurred following Sharron Young’s death. The applicant indicates that such a reconciliation was short-lived and that the deceased never mentioned any communication of any variety with Keri after 2016 other some later text messages.

[45] The deceased signed the will on September 2, 2020 (2020 Will) prepared by Deryck Walden. Mr. Young previously had a will signed in July of 2016 (2016 Will) prepared by Mr. Walden’s father, now retired and in the same firm. Deryck Walden is the son of the cousin to the mother of the applicant and Ms. Prychitko; in essence a second cousin to the applicant and Ms. Prychitko, neither of whom he was particularly familiar with.

[46] The respondent also raises the separation of the applicant from his wife. The applicant admits a separation of some months when he had his own accommodations. Notwithstanding this, the applicant went on to celebrate 25 years of marriage. Ms. Prychitko alleged that the separation occurred proximate during the time of the signing of the 2016 Will. There is some reference of a provision to exclude the inheritance from a division in the event of a separation. The latter is not an unusual provision in wills generally in any event.

[47] A long-time and close friend of the testator, Jim Root, by affidavit and words of eulogy at the deceased’s funeral, described a friendship with the deceased that spanned 55 years starting with their apprenticeships at the same location, their marriages, children, regular social and recreational activities including various boat cruises and trips worldwide along with many other people over the years. After the death of the deceased’s wife, Mr. Root went out often for lunches with the deceased including on September 11, 2020, just days before the testator’s admission to hospital and his death. Jim Root acknowledges that the deceased could be a little crude, loud, temperamental and irritating at times, but was an honest and caring close friend.

[48] Jim Root also confirmed that the deceased lived independently, was his own person, mentally strong and a little stubborn. He also confirmed that the deceased looked after his own home, his own finances, made his own medical decisions and was otherwise self-reliant.

Undue influence by the applicant on the testator

[49] Ms. Prychitko submits that the applicant exercised undue influence upon the deceased based on the applicant’s abusive and controlling nature. She further submits that the applicant exerted undue influence in order to be put into the position of an enhanced beneficial interest under the 2016 Will and the primary beneficiary under the 2020 will as well as the transfer by the deceased to the applicant of RRSP’s and TFSA’s, investment and bank accounts sometime between 2016 and 2020. She asserts that since the 2020 Will was executed mere weeks before the deceased’s death, this presents prima facie suspicious circumstances.

[50] Firstly, Ms. Prychitko asserts that the mere fact of the execution of a will mere days or weeks before death raises a prima facie case. This is not a recognized legal principle. As a matter of common sense and logic, this can only be one feature that requires consideration in relation to the surrounding circumstances and context.

[51] Secondly, as to the contention that the applicant had a predilection as abusive and controlling, this conduct is in no way related nor attributed to the conduct of the applicant toward the testator. Rather, the evidence before the court is that the applicant enjoyed a good relationship with both his parents and that, after their mother’s death, his father lived independently on his own, in his home and maintained substantial social connections and activities. The deceased was otherwise self-reliant and looked after his own financial matters and legal matters.

[52] Ms. Prychitko also relies on the evidence of Alexa Attard who had been married and divorced with her husband as a brother to the deceased’s wife. She maintains that she visited the deceased, often a couple times a week from 2015 through to 2018. She also knew and spent significant time with the deceased and his wife before his wife died. She deposed to the testator’s frequent use of alcohol, it’s effects on him, increased alcohol consumption after his wife’s death, his general condition and two incidents of misconduct toward her.

[53] I find there is no indication in her evidence of any abusive behavior, controlling conduct or anything coercive by the applicant involving the testator. Rather, the main reference in relation to the applicant by Alexa Attard included an incident mentioned by the applicant to Alexa Attard at Thanksgiving in 2019 in Toronto when the testator became intoxicated, and the applicant was upset or furious that he had to take his father to the hospital. Ms. Attard also attributes that the value of assets of the testator at a point in time to be three million dollars.

[54] Ms. Prychitko also raises the applicant’s conduct in relation to the evidence of Diane Browning, a friend of hers who attend the funeral of their mother and was told by the applicant that Ms. Prychitko was not there when she had in fact attended with her husband. This certainly supports the continued difficulties of the long-fractured relationship. This is most obvious, not in dispute, certainly mutual shared and unreconcilable. However, as it relates to any coercion or conduct exerting undue influence by the applicant upon the testator, I find this evidence does not amount to any evidence of such influence by the applicant involving the testator.

[55] The applicant mentions seeing his father regularly for Sunday dinners when his father would come over to his home. Ms. Prychitko attributes a hearsay statement to the applicant through her Uncle Wayne using Sunday dinners as a justification for the changes to benefit the applicant. This court gives no weight whatsoever to such hearsay. The applicant indicated that he did not have anything to do nor was aware of the wills that his father prepared beforehand and that he did not even know whether a power of attorney existed. This is also confirmed in part in the evidence of Mr. Walden.

[56] I will address the submission about alcohol in relation to testamentary capacity. However, on the basis of all of the evidence submitted, this is not a case where the court can reasonably find minimal evidence of circumstances tending to show that the free will of the testator was overborne by acts of coercion or fraud by the applicant.

[57] In addition, unlike many other cases mentioned, there is also no evidence the applicant unduly influenced or coerced the deceased based on his knowledge of a prior will, had knowledge of the distribution of the deceased’s assets nor suggested or had any involvement in the deceased creating the either the 2016 Will or 2020 Will. Furthermore, at no time was the applicant involved in the arrangement or transport of the deceased to any meetings with lawyers. The applicant was neither a contact nor conduit of communications between the lawyer’s office and the deceased.

Lack of testamentary capacity and failure to know and appreciate the contents of the Wills and inter vivos transfers

[58] The respondent submits that the deceased did not have testamentary capacity when he signed the 2016 and 2020 Wills and/or transferred of RRSP’s, TFSA’s or other accounts to the applicant.

[59] Ms. Prychitko submits she was subjected to abuse from the deceased for years fuelled by her father’s lifelong alcoholism. She deposed that her father’s alcoholism, his abusive nature and role in a toxic family environment forced her to leave London in 2007. She desired her family, including the applicant, to leave her alone. There were various professional letters dealing with the respondent’s past involvement with various professionals around her family’s conduct, effects upon her and family estrangement. It is not necessary to review nor refer to these materials any further for this decision.

[60] The submission of her father’s alcoholism also underpins her submission that her father’s lack of testamentary capacity involved and extended from the 2016 Will to the 2020 Will including intervening transfers. She submits there is some evidence that he was not competent to make either will.

[61] This court finds the elements of a sound and disposing mind are not called into question on this evidence for reasons this court will now address. In McGrath v. Joy, the Ontario Court of Appeal at paragraph 70 made it clear that “It is an error to infer a lack of testamentary capacity based on a person's use of alcohol and drugs. If a testator suffers from a disorder or condition that may impact on his or her testamentary capacity, that matter should be considered when applying the relevant legal principles for determining testamentary capacity.” The court later directed, where testamentary capacity is question due to significant alcohol use, that the determination of capacity is to be made at the time the testator made his will. See para 72 to 74.

[62] Prior to 2015, the testator had completed an earlier will that was made along with the his wife. The 2016 Will was prepared after the death of his wife in 2015. The 2016 Will was prepared by J. Phillip Walden who is a retired lawyer. His will instructions to staff along with an email to the deceased from June of 2016 and reporting letter from July 2016 were filed and reviewed.

[63] The 2020 Will was prepared by Deryck Walden, the son of J. Phillip Walden. Deryck Walden has been a lawyer now for just over 20 years. Throughout the period of 2017 to 2019, he drafted 170 wills annually. His law office is located in Forest, Ontario and he resides in Lambton Shores. He knew of the applicant and respondent but had never been retained in any capacity to provide legal services to either of them.

[64] Prior to August of 2021, Deryck Walden last saw or spoke to the deceased at a family funeral in about 2013. The Walden’s had a family relationship with the deceased – the deceased’s late wife was the niece of Deryck Walden’s grandfather, Fred Walden, who was one of nine children and had many other nieces and nephews.

Testator’s own initiative and volition to understand the nature and effect of a will

[65] As to the 2020 Will, the deceased had phoned Mr. Deryck’s office in June and made an appointment with his staff for July 9, 2020 since appointment times were not available earlier due to the Covid pandemic. Two appointment times were provided; one for the meeting and instructions and the second to review and sign the will. The deceased called his office the day of the first appointment as to the exact time that day and was told he had just missed the 10:00 am time. The appointment was then rescheduled for August 26, 2020 at 10:00 am.

[66] On August 26, 2020, the deceased drove alone from his residence in London to Mr. Deryck’s office in Forest and navigated the construction and detour on the street and parked directly in front of the office. Mr. Deryck was then limiting clients being seen in his office. The meeting between them took place on the street with the deceased remaining in his car. Mr. Deryck observed the deceased’s appearance to be neat and he did not smell of alcohol. He had a slight tremor in his hands but there was nothing in to suspect any testamentary capacity concerns.

[67] Over the course of the thirty-minute meeting, the deceased was lucid, coherent, responsive to questions, oriented to time and location without no displays of confusion, memory loss or concerning behaviors. The deceased also initiated conversation and provided his driver’s licence, a copy of which was taken as a practice of Mr. Deryck’s as to identification and proof of driving himself to the appointment.

[68] The handwritten notes of Mr. Deryck of the meeting were also filed with his affidavit. I need not review these in any detail since they clearly demonstrate that the deceased had a clear recollection of his past employment, his retirement, the date of his wife’s death, his past family history from the USA, his children and grandchildren, his desire to discuss particular changes from his 2016. The deceased also articulated of his perception of being ignored by the respondent over the years.

[69] Mr. Deryck deposed the instructions provided were clear and direct.

Testator’s recollection of the nature and extent of his property

[70] The changes to be made from the 2016 Will were as follows:

a. Increase the sum given to each grandchild to $25,000 from $10,000; b. Change the name of specific vehicles to automobiles that were to go to named friend; c. The amount to the respondent was to be $50,000; d. The testator lived in north London;

[71] The 2016 Will was an obvious refence point and was the basis from which the deceased desired to make changes. The 2016 Will was also not the initial will of the deceased. There were clear expressions of changes desired by the deceased to be made to the 2016 Will for the 202 Will. This court finds that the deceased’s recall of the nature and extent of his property at throughout these times was clear and unambiguous.

Testator’s understanding the nature of what he is giving under the will and knowledge of those expected to benefit under his will

[72] In addition to the changes mentioned above, Mr. Deryck also noted a number of other matters including various provisions from the 2016 Will to keep, that his daughter lives in North Bay and had not seen her in four, maybe five years, that her husband was an anesthesiologist and uppity and that the family residence was to be transferred to the applicant alone.

[73] The respondent in her affidavit deposed that the last time she had a voice conversation with the deceased was in 2016. She later received and responded to text messages or received voice messages that she would respond to via text. She also received some emails from the deceased that she stated admonished her from not being grateful for a chicken coop be built for her.

[74] On September 2, 2020, the deceased drove to and attended alone and at Mr. Deryck’s office. A staff person provided a copy of the will to the deceased in a meeting room to review. After a few minutes, Mr. Deryck along with a co-op staff member joined the deceased and generally discussed the changes that had been made. The deceased had no questions or concerns. Mr. Young appeared to understand the will and then signed the will as witnessed by Mr. Deryck and the staff member.

[75] During this meeting, Mr. Deryck deposed that he had discussions with the deceased, made various additional notations of discussions involving the respondent, her husband. The deceased also spoke to Mr. Deryck about his five daughters as well as two specific nephews of his grandfather including specific historical features in relation to them. The respondent raised the reference that Mr. Deryck noted the deceased referred to her as an “RN” and worked in a hospital. The applicant did work in such an environment but has never had an RN designation. Given all of the other evidence when properly considered, nothing turns on the RN reference in this case.

[76] In view of the overall family circumstances and in the context of the discussions that Mr. Deryck had with the deceased, the deceased’s understanding of the nature of what he is giving under the will and his knowledge of those expected to benefit under his will is clear.

Testator understanding the nature of the claims that may be made by persons excluded

[77] As referenced above in the 2020 Will, the testator was giving the home entirely to the applicant and the $50,000 amount was to be provided to the respondent. There was some basis in reasoning provided to Mr. Deryck by the testator for these changes.

[78] In the circumstances, there were no specific claims to be addressed. It is clear that despite the changes mentioned, there was particular consideration of the respondent by the deceased.

[79] Mr. Deryck did not observe anything that would call into question the deceased’s capacity nor that his instructions were the product of undue influence. During both meetings, Mr. Deryck was alive to these issues and did not see any evidence of the deceased lacking testamentary capacity nor any evidence of undue influence nor influence of any kind from the applicant.

[80] Mr. Deryck was most familiar with steps to take for clients to be assessed as well as speaking to or obtaining the opinion of a person’s physician or other family members to test the mental acuity of a client. None of this was necessary given his contact, observations and conduct of the deceased over the occasions that he dealt with him in obtaining instructions and signing the 2020 Will. This was also not inconsistent nor out-of-step in any way with any past interactions that he had had with the deceased, however infrequent as the years went on.

[81] Mr. Deryck deposed that the deceased was clear, made decisions of his own volition, understood the extent of his assets, his responsibilities and obligations and the effect the terms that the 2020 Will would have. This court finds that this was the case.

The condition of the testator at the time of the 2016 and 2020 wills

[82] The applicant took the deceased to the hospital for his final admission some days before his death. There is no evidence that the deceased was aware that his condition was terminal when making either of the wills. There was also no indication of any compromised mental faculties of the deceased when going to lunch with his long-time friend just proximate to this hospital admission.

[83] The applicant testified on examination in relation to the 2020 Will, his father had told him previously that he had gone for tests in London and that he told him that he had mild Parkinson’s Disease and COPD. Pat Whelan, a long-time friend of the testator, also deposed being aware of the testator in and out of hospital in relation to Parkinsons and COPD. The applicant also testified that his father had gone to the hospital before to get his blood work sorted out in relation to his heart medication and that to his knowledge this was not related to problematic alcohol consumption.

[84] Mr. Root, as mentioned, went out often for lunches with the deceased including on September 11, 2020, just before the testator’s admission and death. There is an absence of any evidence of problems of mental acuity or otherwise of the testator particularly immediately prior to the hospital admission of the testator. Mr. Root also deposed to the testator about gifts through his will and changing his will. There is no evidence that the testator spoke to the applicant about his will or any changes. The only knowledge the applicant had in the evidence is that he was aware of the 2020 Will after it had been completed and a few days before the testator’s death.

[85] Dr. Shulman is a medical doctor specialising in gastroenterology and hepatology and practices in North Bay. He was retained by the respondent to opine on the effects of chronic alcoholism including its effects with respect to mental competence and capacity. Dr. Shulman had never given expert testimony nor been qualified as an expert to testify in court. He has no research experience, never published nor made presentations on alcoholism or chronic alcoholism’s affects with respect to mental competency or capacity. Dr. Shulman has socialized with and is a colleague of the respondent’s husband at the North Bay Regional Health Center.

[86] Based on his review of various materials, most if not all before the court, he opined that “the information together points to a strong likelihood that Ron (the deceased) was suffering from alcoholism, that he suffered from end stage liver disease with liver and kidney failure and where hepatic encephalopathy may occur where the build-up of toxins results in confusion, incoherence, poor judgment and eventually coma.”

[87] Dr. Shulman deposed that a diagnosis of hepatic encephalopathy is made from history and a physical examination as well as more detailed psychometric testing, all of which would be available in the medical chart which would determine the underlying cause of death and whether the deceased displayed cognitive issues, specifically hepatic encephalopathy which would adversely affect the mental competence and capacity required to understand and make decisions set of in the wills of 2016 and 2020.

[88] Dr. Shulman on examination agreed that the observations made by Deryck Walden of the deceased as outline earlier were not consistent with someone who’s mental capacity was adversely affected.

[89] Overall, this court did not find Dr. Shulman’s evidence of little assistance to the court. He had no prior expertise in the area he sought to opine on. His evidence as to symptoms leading to coma were in fact entirely absent from any events where deceased was providing instructions or executing his will. In any event, Dr. Shulman’s evidence was that the observations of Deryck Walden in 2020 were consistent with a person whose mental capacity was not adversely affected.

[90] As to any concerns about inter vivos transfers, there is likewise no minimal evidence to meet the threshold to call into question the capacity or raise undue influence by the respondent in this regard. Such transfers in the circumstances would have occurred between the 2016 Will and 2020 Will. When considering capacity issues of the deceased, there is no evidence before the court in this respect. As to undue influence by the applicant upon the deceased during this period, the applicant has answered such a concern which is consistent with his absence of involvement in relation to the 2016 Will and 2020 Will.

Conclusion

[91] I find that the respondent has failed to meet the minimal evidentiary threshold on any of the grounds to require the testamentary documents to be proven. Where there may have been some concerns standing alone in some respects, based on the entirety of the evidence presented, the applicant has successfully addressed and answered those matters that might have called into question the validity of the 2020 Will, the 2016 Will or the inter vivos transfers.

[92] This court orders that the Notice of Objection of the respondent be struck.

[93] In the circumstances, it is unnecessary to address any further directions in this respect.

[94] If costs cannot be resolved by the parties within 30 days of the date of this decision, the parties may submit written submissions within 45 days of the date of this decision, each limited to five pages excluding case law.

“Justice M.D. McArthur” Justice M.D. McArthur Date: March 8, 2022