COURT FILE NO.: CV-19-00005256-00ES

DATE: 20220526

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Rhonda Zaretsky

Applicant

– and –

Marlene Zaretsky and Harley Zaretsky

Respondents

Jeffery Kaufman and Victoria Pileggi, for the Applicant

Melanie Yach and Stephanie D’Amico, for the Respondents

HEARD: January 6 – 14, 2022

Hood J.

REASONS FOR DECISION

Overview

[1] Anne Zaretsky (Anne) died on October 15, 2018, at the age of 92. She had three children, Marlene, the oldest; Harley, the middle child; and Rhonda, the youngest.

[2] During most of her lifetime, Anne basically owned three assets: her home at 151 Regina Avenue, Toronto; her 20% interest in Woburn Plaza Inc., which owned and operated a small retail plaza; and a sizeable GIC of approximately $800,000.

[3] On October 13, 2015, Anne moved out of her home into Amica Senior Lifestyles Thornhill, a retirement home facility. On October 26, 2015, her home was sold, with the closing taking place on December 4, 2015. Shortly after closing, the net proceeds of sale were divided equally between her three children along with most of the GIC.

[4] On October 28, 2015, she signed her last will and testament for excluded property. Other than a specific bequest of her diamond ring to a granddaughter, she divided her interest in Woburn Plaza Inc. equally between her three children. She also appointed her three children as her estate trustees. Also on October 28, 2015, she appointed her three children to be her powers of attorney for both the management of property and for her personal care and revoked all previous powers of attorney. Under the new powers of attorney, decisions were by a majority. Under a second will for non-excluded property, also dated October 28, 2015, she left her remaining property to be divided equally between her three children.

[5] Under a previous will for excluded property, dated August 7, 2013, other than the same specific bequest of her diamond ring to a granddaughter, she left her interest in Woburn Plaza Inc. to Rhonda. She appointed Marlene and Rhonda to be her estate trustees. Under a will for non-excluded property, also dated August 7, 2013, she left her home at 151 Regina Avenue, Toronto to Rhonda with the balance of her property to be divided equally between her three children. She appointed Marlene and Rhonda to be her estate trustees under this will as well.

[6] Rhonda is challenging the October 2015 will for excluded property. She argues that Anne lacked the knowledge and approval of the 2015 will, that she lacked testamentary capacity, and that there were suspicious circumstances at the time the instructions were given for the 2015 will and at the time of its execution. While Rhonda had also alleged that there was undue influence exerted by the respondents upon Anne in relation to the creation of the 2015 will, during closing argument Rhonda advised that she was no longer relying upon this as an argument. Rhonda also raised the issue of ademption. If successful in setting aside the 2015 will, the proceeds of sale from the sale of the home have already been distributed and the provision in the non-excluded will of 2013 that the home is to go to Rhonda cannot be met. Rhonda argues that ss. 36 to 38 of the Ontario Substitute Decisions Act, 1992, S.O. 1992, c. 30 apply and that Marlene and Harley should be required to repay the proceeds they received from the sale of the home.

[7] Marlene and Harley argue that Anne had the requisite knowledge and approval of the 2015 will, had testamentary capacity and that there were no suspicious circumstances or were insufficient suspicious circumstances, so as to shift the burden upon them to prove that Anne knew and approved of the contents of the 2015 will and had the necessary testamentary capacity. They also argue that the issue of ademption does not arise as the 2015 will is valid but even if not valid, there is no basis to order the return of the sale proceeds paid out in December 2015.

[8] The interest in Woburn Plaza Inc. was sold following Anne’s death for approximately $2.4 million, after tax. The proceeds are being held in trust. If successful, Rhonda will receive the totality of the proceeds. If unsuccessful, she will receive a third or approximately $800,000.

Decision

[9] For the following reasons the Application is dismissed.

The Law

[10] In order to have testamentary capacity or a sound disposing mind a testator requires an understanding of 1) the nature and effect of a will, 2) the extent of one’s assets, 3) the extent of what one is giving away, 4) who might be expected to benefit from the will and 5) the nature of the claims of those excluded from the will: see Hall v. Bennett (2003), 2003 CanLII 7157 (ON CA), 64 O.R. (3d) 191, at para. 14. Rhonda conceded that Anne understood the nature and effect of a will. As well, no one who might have a claim was excluded from the will. So, the points to consider here are whether Anne had an understanding of points 2, 3 and 4.

[11] While recognizing the importance of testamentary freedom and autonomy, which should not be interfered with lightly, at the same time courts recognize that there could be situations where testators, even where there is no undue influence, lack a sound and disposing mind. The issue then becomes as to who has the burden of proof. Is it for the one attacking the will to prove a lack of a sound and disposing mind or is it for the propounder of the will to prove the presence of a sound and disposing mind?

[12] Upon proof that a will has been duly executed and was read by or read to a testator who appeared to understand it, absent suspicious circumstances, a testator is presumed to have known and approved of the will’s contents and to have possessed the necessary testamentary capacity: see Vout v. Hay, 1995 CanLII 105 (SCC), [1995] 2 S.C.R. 876, at para. 26. This does not mean that every word must be read but that the sense of the will, what was being disposed of, and how and to whom, was read or reviewed by the testator.

[13] Where there are suspicious circumstances regarding knowledge and approval then the propounder of the will has the legal burden of proving knowledge and approval. Where there are suspicious circumstances relating to mental capacity then the propounder of the will reassumes the legal burden of establishing testamentary capacity: see Vout, at para. 27.

[14] As a general rule, the testator must have the necessary testamentary capacity on the date the will is signed. This general rule does not apply where the execution of the will takes a two-step process, with the testator giving instructions on one day and the will reflecting those instructions being signed at a later date and time. In this case, the testator need not have full testamentary capacity on the date of execution provided she understands that she is signing a will and that the will gives effect to the previous instructions: see Yeas v. Yeas, 2017 ONSC 7402, at paras. 244, 314.

Analysis

[15] The parties agreed that there is no issue as to Anne’s testamentary capacity until August 2015.

[16] On August 24, 2015, Anne was admitted to Mount Sinai Hospital in Toronto suffering from trigeminal neuralgia, or severe facial pain. While in the hospital she was given hydromorphone, a narcotic, as needed for the pain and carbamazepine, an anticonvulsant specifically used to treat trigeminal neuralgia. She was discharged on August 28, 2015.

[17] Rhonda’s position is that from that point on Anne was a changed person. Whereas before she was feisty and active, she now was weak, frail, foggy and confused. That she was weak, frail, foggy and confused from her discharge from Mount Sinai in August 2015 became Rhonda’s mantra throughout her testimony.

[18] Marlene and Harley disagreed. While Anne had mobility issues and issues with her eyesight, in their view, there were no issues with her mental capacity from the time she left Mount Sinai until she signed the 2015 wills on October 28, 2015. As far as they were concerned, she was completely capable of making decisions.

[19] Of those who knew her and gave evidence, at least up until her initial stay in Mount Sinai in August 2015, Anne is described pretty much the same way. While some of the adjectives are different, they all point in the same direction. According to Rhonda, she was feisty, a people-person, a walker, and always active. According to Marlene, she was warm, social, fun loving and feisty. According to Harley, she was strong willed, talkative and opinionated. According to Dr. Hotz, her long-time, family doctor, she was very lively, forthcoming, entertaining, energetic and sharp. According to Michael Kerzner, one of her nephews, she was lively, feisty, loud and intense. According to Jeffery Schwartz, who witnessed her 2015 wills and was the partner and son of her long-time lawyer Saul Schwartz, she was boisterous, loud and a presence.

[20] While they all acknowledge that she changed following her initial stay at Mount Sinai, only Rhonda testified that she had in effect lost her mental faculties and believed that she was incapable of thinking for herself, no longer able to make decisions, and no longer possessing the mental capacity to determine what she wished to do with her property upon her death.

[21] Following her discharge from Mount Sinai, it became clear that Anne could no longer manage her home and she decided in September 2015 that she should move into a retirement home. On October 1, 2015 she visited Amica and was interviewed by Ms. Sikich, the director of care, who interviewed all of the prospective residents to determine whether Amica could accommodate their needs.

[22] As part of the process, Ms. Sikich also reviewed a form completed by Dr. Hotz. Ms. Sikich concluded that Amica would be appropriate for Anne. Because Anne needed some assistance with her care and was not completely comfortable with her memory, Ms. Sikich felt that the assisted living floor in Amica would be appropriate.

[23] Anne moved to Amica on October 13, 2015. Less than a week later 151 Regina was listed for sale.

[24] Rhonda, Marlene, and Harley all agree that they were notified on October 22, 2015 of the meeting at Saul’s office on October 23, 2015. They agree that they knew it was to be a family meeting. They disagree over what was discussed at the meeting as well as what was agreed to.

[25] While Rhonda testified that they were told by Saul that Anne wanted to make a few changes to her will she stated that the changes were not discussed. Despite this, she says that she insisted that Anne had to have a competency test. She also insisted that Anne said very little and that everyone agreed, presumably Anne included, that Anne would have a competency test to be arranged by Saul.

[26] Marlene testified that they were told that the new will would be a return to an equal distribution and that there was discussion about the executors and powers of attorney with Harley insisting that he not be the sole executor or power of attorney. As to the assessment, while Rhonda was insisting upon one, Marlene and Harley did not think one was necessary, but that Rhonda was free to arrange one if she wanted. Anne, however, was offended by Rhonda’s demand and refused to have one. Marlene also testified that Rhonda was in a foul mood throughout the meeting.

[27] Harley testified that it was clearly discussed with Anne present that all of Anne’s estate was to be divided equally between the three of them including that the term deposit and house proceeds were to be divided in three ways. He stated that he did not want to be the sole executor and that after Saul discussed this with Anne, it was agreed that there would be three executors with a majority deciding. Saul questioned Anne throughout the meeting as to her wishes and she always responded that that was the way she wanted it. As to the assessment, he said that it was up to Anne and that if she wanted it, it would happen but that if she did not, it would not. He also testified that Anne was upset by Rhonda’s insistence upon an assessment and suggested that Rhonda herself needed to be assessed. This was more of a rhetorical response from Anne.

[28] I accept Marlene and Harley’s version of the meeting. While their testimony was not identical, they did agree upon the major issues – that the equality of division was discussed, that changes were to be made as to the executors, and that while Marlene and Harley were not opposed to an assessment being done it would be Anne’s decision whether to have one or not. There was no agreement that an assessment would be done or that Saul was to arrange it. Their versions also agree, not only with Saul’s notes of the meeting, but with what happened next, namely that the wills and powers of attorney were both changed, that there was no assessment, and that when 151 Regina was sold that the proceeds of sale and the term deposit were divided three ways after $180,000 was set aside for Anne’s ongoing costs. Their version of the meeting also agrees with Michael Kerzner’s recollection of a conversation with Anne where she told him what had transpired at the meeting at Saul’s office.

[29] Rhonda’s testimony as to what was discussed at the meeting or more importantly what was not discussed, namely the equal division of Anne’s estate, is somewhat preposterous. How likely would it be for Saul to gather the entire family together and to tell them that Anne wished to change her will and then not have the changes made known. If the changes were not made known why would Rhonda then insist upon an assessment of Anne’s competency? To be so insistent for an assessment would only have occurred if Rhonda knew what the changes were going to be and that her interest in Anne’s estate was going from most of the estate to 33%.

[30] It was made clear at the meeting what Anne’s wishes were. Anne refused an assessment and was offended by Rhonda’s insistence that one take place. In accordance with Anne’s instructions Saul drafted new wills and powers of attorney for Anne. He clearly must have had no concern with her ability to give instructions. He was an experienced estates lawyer and was Anne’s long-time lawyer and knew her and her family intimately. There was nothing in his notes from the meeting indicating that he had a concern about Anne’s competency to give instructions. His bigger concern seemed to be whether Anne’s assets, including her term deposit, should be divided now or at a later date.

[31] Anne did distribute a large portion of her estate prior to her death with the concurrence of her three children including Rhonda. 151 Regina had been listed on October 19, 2015 and was sold on October 26, 2015 for $861,000 with a closing of December 4, 2015. Rhonda signed the agreement of purchase and sale as the sole power of attorney for Anne.

[32] Later, on December 1, 2015 for the purposes of the closing, Rhonda signed a declaration of possession on behalf of Anne along with Marlene and Harley, as the other powers of attorney. The declaration stated that Anne was the absolute owner of 151 Regina and that there was no one else with an interest in 151 Regina.

[33] Also, for the purposes of the closing, she signed an acknowledgment re power of attorney on the same day. It named all three children as the powers of attorney. It should have been clear to Rhonda that while she had been the sole power of attorney from July 2011 that by December 1, 2015, that was no longer the case and that all three were now powers of attorney as had been discussed at the meeting of October 23, 2015.

[34] Moreover, the acknowledgment, which Rhonda confirmed, stated that to the best of her knowledge, information and belief, the power of attorney was lawfully given. The only power of attorney this could refer to was the one signed by Anne on October 28, 2015 when she also signed her new wills. Rhonda clearly was prepared to acknowledge the validity of the power of attorney in order to close the real estate sale.

[35] When asked in her re-examination about the acknowledgement, she testified that she was asked to sign the acknowledgement, so she did, and that she did not know what she was signing. Pointedly, she was not asked, and she did not testify that she did not know what she was signing with respect to the declaration of possession.

[36] Following the closing of the sale of 151 Regina, Rhonda and Marlene decided how the sale proceeds and the term deposit should be distributed. In an email to Marlene, Rhonda specifically referred to the instructions that Anne had given as to how the proceeds were to be divided. There was no evidence of the actual amount of closing proceeds or what was the actual amount of the term deposit. The amount of the term deposit was variously described as being $800,000 and $740,000. In any event, the parties all testified that they each received $470,000 from the equal division of the term deposit together with the sale proceeds after first setting aside $180,000 from the total amount for Anne’s ongoing expenses.

[37] While not ultimately asserting that she was the owner of 151 Regina, Rhonda gave evidence that the home was supposed to be transferred to her as a joint tenant with Anne in May 2015. She claimed that in May 2015 everything that needed to be signed for the transfer had been done. However, the transfer did not occur. There was no evidence as to why it did not take place.

[38] Rhonda submits in response to her anti-ademption argument that if the 2015 wills are invalid then Marlene and Harley should be ordered to return their portion of the share of the house proceeds, as she should have been the joint owner of 151 Regina at the time of the sale and the payment to Marlene and Harley of the net sale proceeds were paid by mistake. She alleges in argument that Schwartz & Schwartz were negligent in not having the home transferred into joint tenancy.

[39] I am unable to accept Rhonda’s argument that there was a mistake in the payment to Marlene and Harley and that she did not know that she did not own 151 Regina as a joint tenant with Anne. The agreement of purchase and sale clearly states, and the words were added in, that Rhonda was the seller as the power of attorney for Anne. It does not say that she and Anne were the joint owners. The declaration of possession, which Rhonda swore to, clearly states that only Anne was the owner of 151 Regina and that no one else had a claim or interest in it. Rhonda never raised a concern with Saul or Jeffery Schwartz, or anyone else at the firm, that the transfer that had at one time been contemplated in May 2015 to make her a joint owner had not taken place. The transfer in fact had never happened. Again, there was no evidence as to why it did not.

[40] I am unable to accept that Rhonda has any claim with respect to any interest in the term deposit or proceeds from the sale of 151 Regina paid to Marlene or Harley even if I were to find that the 2015 wills were not valid. Rhonda was a direct participant in the sale and the ultimate distribution. She made no objection at the time. She did more than acquiesce to the making of the payments, in fact she facilitated them.

[41] With the distribution of the sale proceeds and term deposit, Anne’s remaining asset was her interest in Woburn Plaza. Under her will for excluded property this interest was divided equally among her three children.

[42] Anne was no stranger to the preparation and execution of wills. Twelve sets of wills were put into evidence before me covering a period of time from November 1975 to the contested wills of October 28, 2015. In addition, over the years, Anne executed numerous powers of attorney for personal care and property and various codicils to her wills.

[43] In the first will put before me, she left everything to her husband, except for anything which she might get from her father, Sam Kerzner’s estate, or her mother, Sarah Kerzner’s estate, which was to be divided equally among her three children. In her next will in 1981 everything was divided equally between her children. In 1983 Harley was given a life interest in her home at 151 Regina, with everything else divided equally between the three. In 1986 it reverted to the equal division. In 1991 Marlene was to receive a condominium, Harley and Rhonda were to receive 151 Regina, with appraisals being done, with the other assets being divided equally. In a 1994 will, the specific bequests were removed, and everything was to be divided equally, with the request that her interest in Woburn Plaza be held for 5 years before being sold. In 2000 everything was to be divided equally. In 2008 the condominium and 151 Regina were to go to Marlene and Rhonda and the balance being divided equally among the three. In 2011 Woburn Plaza was to go to Rhonda, the condominium and 151 Regina to Marlene and Rhonda and the balance divided equally among the three. In 2011, Anne began signing multiple wills including a will for excluded property, namely Woburn Plaza. In a 2012 will, Woburn Plaza was to go to Marlene and Rhonda, 151 Regina to Rhonda, and the balance divided equally among the three. As previously indicated, in the 2013 will Woburn Plaza and 151 Regina were to go to Rhonda and the balance divided equally among the three and in the 2015 will everything was divided equally.

[44] All of Anne’s wills were prepared by Saul Schwartz. Many, including the 2013 and 2015 wills, were witnessed by Saul’s son and law partner Jeffery who practiced 33 years with his father. Saul died on November 8, 2015, at the age of 91. It was unfortunate that Saul was not available to give evidence at trial as he had a long relationship with Anne and his evidence as the drafting solicitor would have been very helpful.

[45] There was a great deal of evidence from Rhonda, Marlene and Harley about their respective relationships with Anne and each other, going back years, and much of it was conflicting. For example, Rhonda testified that she was the most involved in Anne’s life and saw her daily, whereas Marlene saw Anne twice a month and Harley only occasionally. Both Marlene and Harley disagreed with this and said that they talked to and saw Anne more frequently than what Rhonda had testified, especially following Anne’s hospitalization at Mount Sinai.

[46] There was much evidence about their respective financial situations and what Anne had done for each of them over the years. There was much evidence about their own relationships with each other. There was evidence presented in order, it would seem, to justify why Anne made the provisions that she did in her various wills from time-to-time. Most of this evidence was irrelevant to the ultimate issue before me – whether Anne had the necessary testamentary capacity when she made the 2015 wills.

[47] Where all of this evidence does assist is in determining whether there were suspicious circumstances relating to the 2015 wills.

[48] In my view, there were no suspicious circumstances so as to place the legal burden on Marlene and Harley regarding knowledge and approval of the 2015 wills by Anne. The sharing of her estate equally among her three children was not such a departure from past bequests so as to raise any suspicion. This was not a bequest that had never been considered before.

[49] Ultimately Anne decided that it was appropriate to share her one remaining asset equally between her children just as she had shared her other assets, her home and her term deposit.

[50] I accept that a testator does not require a reason for who her beneficiaries are to be and the amount each are to receive. However, if there is a rationale for a testator’s decision that will minimize any suggestion of suspicious circumstances and support the finding of testamentary capacity. Here, Anne had reverted to what had been a common disposition by her for many years.

[51] No one can truly know Anne’s motivation other than an obvious desire to treat her children equally as expressed in the will itself. Perhaps she remembered how she felt when she was excluded from her own mother’s will in the early 1990’s. Perhaps it was the more recent exclusion from her brother Joe’s will following his death in January 2015.

[52] According to Marlene she was devastated when she was left out of her own mother’s will. In cross-examination Rhonda agreed that Anne was upset by this.

[53] According to her nephew, Michael Kerzner, Anne viewed her exclusion from her brother Joe’s will as inequitable. Michael testified that Anne told him that while she understood that her children were in different financial positions, she did not want to go to her grave with her children fighting and believed that changing her will back to what it had been before, namely an equal distribution would make what had been a wrong, right.

[54] I accept Michael’s evidence. It was consistent with the evidence of Jeffery Schwartz, and Marlene and Harley as to what Anne wanted. Michael was close to his aunt Anne. He saw and talked to her regularly. There was no reason for him to say what he said other than telling the truth. He was an admitted friend of Harley but was also close to Marlene and Rhonda and had been close with Anne.

[55] The onus was on Rhonda to prove that Anne lacked the knowledge and approval of the 2015 wills and she has failed to meet this onus. I accept the evidence of Jeffrey Schwartz that the wills were reviewed with Anne before they were signed. Moreover, the wills accorded with Anne’s instructions given to Saul during the family meeting just a few days before the wills’ execution.

[56] The wills, like all previous wills were exceedingly straightforward. Anne had basically three assets. They were to be divided equally among her children. It is clear from the testimony of Marlene and Harley about the meeting of October 23, 2015 what Anne wanted to do. This was supported by the notes of Saul. I am unable to accept Rhonda’s testimony that Anne did not disclose her wishes at the meeting. Not only is it contrary to all of the other evidence and what actually happened after the meeting it is simply illogical to have all of the children meet with Anne’s lawyer and not discuss what was on everyone’s mind.

[57] This was not a situation where a new lawyer, unfamiliar with the testator and her family and her prior wills, was retained to prepare a will that was a departure from previous wills. This was not a situation where the testator found a new and perhaps recent beneficiary for her estate. Nor was this a situation where the testator prepared her will in secret with no notice to any of the beneficiaries. Nor was this a will done in a hurry as the testator lay dying in a hospital. To the contrary, this was a situation where the testator arranged for and attended a specific meeting with the beneficiaries and made her wishes known. While Harley transported Anne to Saul’s office on the day the wills were executed, he did not stay. This is a far cry from saying that he, as a beneficiary, was instrumental in the preparation of the wills.

[58] This leaves the issue of Anne’s mental capacity. Based upon the totality of the evidence I find that there is no compelling evidence of suspicious circumstances relating to Anne’s mental capacity and that Rhonda has failed to prove that Anne lacked the mental capacity to instruct Saul with respect to the wills on October 23, 2015 or to execute the wills on October 28, 2015.

[59] As already indicated, everyone agrees that there was no issue with Anne’s mental capacity prior to her admission to Mount Sinai in August 2015. Rhonda disagrees with everyone about Anne’s mental capacity following her discharge.

[60] Upon her discharge from Mount Sinai and up to the execution of the wills on October 28, 2015, Rhonda testified that Anne was weak, frail, foggy and confused and that she never recovered. Rhonda went even further and testified that, in her view, Anne lost her short-term memory at the same time that she moved into Amica and that she never recovered it.

[61] This was contradicted by anyone else who knew Anne. To Marlene, while she had slowed down and needed a walker, which did not make her happy, she was the same person, feisty and delegating chores to her three children as required. To Harley she still “directed traffic” for others and made her own decisions. To Michael Kerzner, she was incredibly sharp and fiery. He described her as Margaret Thatcheresque. He thought that she had a clear mind at the end of October 2015. Jeffery Schwartz was not asked about whether she had changed although he was asked specifically about his meeting with her on October 28, 2015, at the will signing.

[62] Jeffrey testified that Anne did not appear dazed, confused, sedated or in an altered state. While she talked more slowly than in the past, she did not say or do anything which suggested that she had any cognitive issues. While he had on occasion refused to prepare wills for clients where he was concerned about their testamentary capacity, he had no concerns when Anne executed her wills that day. They talked about her assets that she was bequeathing, namely the ring and her interest in Woburn Plaza, and what it was like living in Amica. Anne discussed her family and specifically her father and her brother Joe who had recently died. She confirmed that she wanted to divide her estate equally among her children.

[63] Rhonda’s position was also disagreed with by Anne’s long-time family doctor, Dr. Hotz. While Dr. Hotz’ evidence was not perfect, and contradictions in some of it was pointed out, he never resiled from his ultimate position that Anne had mental capacity and did not have dementia during the critical period of October 2015.

[64] In his encounter notes from September 4, 2015 and September 10, 2015 Dr. Hotz described Anne as foggy, weak (sic), with nausea, frail and confused. He testified that he believed this was a result of the carbamazepine and he reduced her dosage before eliminating it on September 10th. In his testimony, when asked about the notes, he said that, from his examination of Anne, she was more drowsy and not confused with a memory problem or dementia. In his encounter note of September 16, 2015 he was concerned about a possible stroke and he ordered tests which turned out to be negative. While Anne was less alert and engaged, he did not view this as progressive and believed it would pass.

[65] On September 26, 2015 he completed a form on behalf of Anne to provide to Amica. In it he indicated that Anne presently had mild delirium, but as he testified, that was based upon his last encounter on September 16, 2015 and he did not know if she had recovered. On the area of the form dealing with Anne’s cognitive function he put question marks beside Dementia and Confusion. As he testified, he believed that any issues Anne had at that time were reversible and were a result of the carbamazepine and that if he had a true concern with dementia he would have checked the appropriate boxes and ordered more tests. When he saw Anne next on November 18, 2015 he had no concerns with her cognitive function. He continued to treat Anne through the balance of her life and never diagnosed her with dementia.

[66] In cross-examination he agreed that dementia is progressive. However, he maintained that in his view Anne never had dementia as it had to be sustained to be dementia and that her issues were specific arising from other causes such as her medication or anemia.

[67] The other person who met Anne in October 2015 was Ms. Sikich of Amica, who completed the October 1, 2015 Amica intake forms.

[68] The intake forms for Amica certainly do not lead to a conclusion that Anne had dementia or lacked mental capacity. Based on Amica policy, Anne would not have been allowed to reside in Amica if she had dementia or any cognitive disorder. The fact that she was living there dispels any suggestion that she had either. The fact that she was in assisted living was explained by Ms. Sikich. Anne needed some assistance with her care and was not completely comfortable with her memory. That is a far cry from having dementia or suffering from delirium. As Ms. Sikich testified, when she interviewed Anne there was no indication of either.

[69] I give no weight to the notes from Amica that on October 28, 2015, the day of the will signing, she was “groggy”. No one testified as to what was meant by that. It could have been Anne’s explanation for why she fell as much as anything and provides no evidence as to her mental state. I also give no weight to the patient assessment form from the pharmacy as to Anne’s cognitive impairment. Again no one testified on behalf of the pharmacy. The form appears to have been prepared to assist in the dispensing of medication and was not a true assessment of Anne.

[70] I also place no weight upon the cancellation of the Baycrest referral from Dr. Hotz to Baycrest by Marlene on October 5, 2015. It is not a suspicious circumstance. This was well before the October 23, 2015 meeting where Anne made her wishes known to her children and where she re-confirmed her instructions to Saul to prepare new wills for her execution. Marlene was under the impression that the referral from Dr. Hotz was for a physio assessment as Anne was having balance issues and was terrified of falling, and that had been the issue she had raised with Dr. Hotz. She did not raise any issue with him over Anne’s cognition. She cancelled it, at Anne’s request, as Anne was no longer having balance issues, she had had the Amica interview and was moving into Amica. Dr. Hotz was not concerned when he found out about the cancellation.

[71] Dementia was defined as a sustained and irreversible impairment of judgment, insight and memory.

[72] There is only one witness, other than perhaps Rhonda, who says that Anne had dementia at the time she executed her wills: Dr. Richard Shulman.

[73] Dr. Richard Shulman is a geriatric psychiatrist who was retained by Rhonda to perform a retrospective analysis of Anne’s testamentary capacity.

[74] A retrospective analysis is done by reviewing some of the court material, some of the discovery transcripts and various medical records and then forming an opinion based on this. A retrospective opinion is made without the person providing the opinion ever meeting, examining or assessing the individual in question. One has to rely on what is provided, and as pointed out elsewhere by others faced with this sort of evidence the expert has to form their opinion based upon material that is less than complete, perhaps inaccurate and where coming from one of the parties themselves, biased.

[75] Here Dr. Richard Shulman, while provided with the examinations for discovery of Harley and Marlene, was not provided with the examination for discovery of Rhonda. Nor was he provided with the transcript of the cross-examination of Jeffrey Schwartz. He did say that he tried to emphasize the medical data rather than the evidence of lay witnesses, however, he did not review the will-say statement of Anne’s personal physician Dr. Hotz and he did not review the medical data after October 28, 2015 in great detail.

[76] Dr. Richard Shulman stated that there was insufficient clinical information in the Mount Sinai records from August 25, 2015 to confirm whether Anne had suffered a delirium, which is an acute decline in attention and cognition. However, he suspected that she had suffered a delirium while in Mount Sinai based upon Dr. Hotz’s progress notes, presumably the ones from September 4 – 10, as he did not specifically identify which ones.

[77] It should be remembered that Dr. Hotz in his testimony downplayed these notes, felt the issues were temporary based upon the carbamazepine and that Anne was not confused, and did not have a memory problem or dementia.

[78] In his report, Dr. Richard Shulman, stated that delirium is potentially reversible but may also unmask dementia associated with Alzheimer’s disease, or accelerate cognitive or functional decline in a person with pre-existing Alzheimer’s disease or in hospitalized seniors. There was no evidence presented that Anne at any point had pre-existing Alzheimer’s disease or Alzheimer’s disease. She was only hospitalized for five days at Mount Sinai, months before the October 2015 wills and upon discharge there was no mention of delirium or dementia. He also agreed that the carbamazepine can potentially provoke delirium.

[79] Dr. Richard Shuman concluded that Anne was suffering from dementia in October 2015 because of two concerns. Firstly, in his view she could no longer live independently and secondly, she was no longer managing her property because the sale of 151 Regina was being done by others.

[80] He came to this conclusion while acknowledging that the medical evidence did not warrant a finding that Anne had dementia in October 2015. Dr. Hotz concluded that she did not. There was nothing in the discharge statements from Mount Sinai in October 2015 suggesting that Anne had any cognitive issues. There was nothing in the consult notes of Dr. Patel from Mount Sinai of November 21, 2015 suggesting any cognitive issues. To the contrary, Dr. Patel specifically wrote that she did not appear to be confused or delirious.

[81] In my view, very little weight should be given to Dr. Richard Shulman’s opinion when it is based not upon any medical evidence but more so on his two above mentioned concerns and what was really a legal analysis of whether the evidence supports a finding of a lack of testamentary capacity. That is the court’s function. If there was medical evidence that needed to be interpreted for the court, that is one thing, but for him to undertake the very analysis that the court is tasked to do, is quite another. Moreover, there were plausible explanations given for both of his concerns – Ms. Sikich explained why Anne was in the assisted living section, and Anne was not part of the house sale because she had vision issues and actively delegated the mechanics of the sale to others.

[82] It would appear that I am not the only one who has raised concerns with retrospective assessments such as this. Gans, J. in Kates Estate, 2020 ONSC 7046 raised concerns over the weight to be given to a retrospective analysis of testamentary capacity. Dr. Richard Shulman provided a report in that matter as did Dr. Kenneth Shulman, who also gave evidence before me. It is unclear from a reading of the Kates decision what position the respective Drs. Shulman took as to the testamentary capacity of the deceased, but Gans, J. appeared to give little weight to the retrospective reports before him.

[83] Dr. Kenneth Shuman is also a geriatric psychiatrist. He was retained by Marlene and Harley to also perform a retrospective analysis of Anne’s testamentary capacity.

[84] His conclusion was that while Anne had some cognitive impairment, he was satisfied that she did not have dementia and was not so impaired that she could not execute her wills in October 2015. He focused on the medical records and was comforted by the will-say statement of Dr. Hotz which clarified his encounter notes from September 2015 wherein he concluded that Anne at no time was suffering from dementia.

[85] He testified that he was very hesitant to find dementia in a retrospective report and in commenting on Dr. Richard Shulman’s report testified that just because Anne could not function independently anymore should not lead to the conclusion that she had cognitive impairment. There could be other reasons for the loss of independent living, such as a loss of mobility or trigeminal neuralgia, and whereas cognitive impairment could lead to a loss of independence, a loss of independence was not necessarily proof of cognitive impairment. Loss of independence could be a symptom of cognitive impairment but was not proof of it.

[86] In cross-examination, while he acknowledged that it would have been better if a formal assessment had been done, there was none. He was also unable to comment on the diagnoses of dementia from the October 2018 medical records other than pointing out there was no such diagnosis in the November 2015 medical records from Mount Sinai.

[87] He also pointed out in cross-examination that some of the comments in the Amica notes when Anne first moved there are the normal phenomena associated with an 89-year-old changing their living arrangements and entering a retirement home. He placed little weight on them. This was also the evidence of Ms. Sikich who stated that it was not unusual for a new resident in a new environment, like a retirement home, to be confused and that after some time they become more comfortable. Also, the Amica notes from October 28, 2015 stating that Anne fell and felt “groggy” do not necessarily lead to the conclusion that she was not capable of signing a will that day.

[88] While I have the same concern overall with Dr. Kenneth Shulman’s retrospective report because he never met, examined or assessed Anne, his opinion appeared to be based more on the medical records than on speculation upon the surrounding circumstances leading up to the October 2015 wills. I prefer his evidence over that of Dr. Richard Shulman’s.

[89] Having said that, I prefer the evidence of Dr. Hotz and Jeffrey Schwartz, the two professionals who actually dealt with Anne. The two based their impressions on their knowledge of Anne and their direct personal experiences with her. Dr. Kenneth Shulman’s opinion buttresses their evidence as does the evidence from Ms. Sikich and Michael Kerzner who were independent and uninterested witnesses. As to the parties, I found Marlene and Harley’s evidence to be tempered and in line with the documentary evidence whereas Rhonda’s was exaggerated, directed towards the result she desired and was contrary to the documentation. Her position was also inconsistent. Rhonda was prepared to follow the October 2015 power of attorney in order to facilitate the sale of 151 Regina and specifically acknowledged its validity. As a result, she received $470,000 following the sale and the division of the net proceeds and the term deposit. Yet, when it came to the will, executed the same day, she took the position that Anne lacked the necessary testamentary capacity.

[90] There are insufficient suspicious circumstances to place the onus of proving testamentary capacity on Marlene and Harley. However, even if I had found that there were sufficient suspicious circumstances so as to place the burden upon Marlene and Harley, they, on the evidence, have also met that burden on a balance of probabilities. I am satisfied that on October 23, 2015 when Anne gave the instructions, and on October 28, 2015 when she signed the wills prepared pursuant to those instructions, Anne had the necessary testamentary capacity.

[91] Because I find the wills to be valid, the issue of anti-ademption does not arise. However, as I indicated earlier in my decision, even if the wills were found to be invalid, the provisions of s. 36 of the Substitute Decisions Act cannot apply where the alleged insufficiency of the residue in the estate was created on consent under the direction of the party now seeking the relief of the section.

[92] I have received the Bill of Costs of both the applicant and the respondents. The amounts set out in each Bill, while not the same, are close. I would hope that the parties would be able to reach an agreement on costs, but if unable to do so, the respondents are to upload and serve their cost submissions of no more than 10 typed, double-spaced pages, with any necessary offers and caselaw attached within three weeks of today’s date. I am giving extra time in order to discuss the resolution of costs. If the parties do reach an agreement, I am to be informed of the fact of the agreement by email to my assistant maria.kolliopoulos@ontario.ca. The applicant is to provide her cost submissions subject to the same directions within two weeks of the service of the respondents’ submissions. The respondents may provide reply submissions of no more than 5 typed double-spaced pages within one week thereafter.

Justice Hood

Released: May 26, 2022

COURT FILE NO.: CV-19-00005256-00ES

DATE: 20220526

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Rhonda Zaretsky

Applicant

– and –

Marlene Zaretsky and Harley Zaretsky

Respondents

REASONS FOR JUDGMENT

Hood J.

Released: May 26, 2022