Court File and Parties

Re: Estate of Darlene Edwards, CITATION: 2022 ONSC 3646

COURT FILE NO.: 13409/21

DATE: 2022-06-17

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: The Estate of Darlene Edwards

BETWEEN: Christina O’Reilly

AND: Lisa Hall

BEFORE: Mr Justice Ramsay

COUNSEL: Frederick Cameron for Christina O’Reilly; Harry Korosis and M. Slater for Lisa Hall

HEARD: June 17, 2022 at Welland

Endorsement

[1] On a motion for directions under rule 75 Edwards J. ordered a trial of the following issues:

a. Were both Tami Reimer and Johan Van Noort present when the late Darlene Edwards executed her last will and testament on March 26, 2020? And

b. If so, did they each attest to their presence by signing the last will and testament in the presence of the deceased?

[2] At the conclusion of the trial I answered both questions in the affirmative from the bench and declared the document in question to be the last will and testament of Darlene Edwards. These reasons explain why.

[3] Darlene Edwards was an insurance agent. She was diagnosed with terminal cancer in January 2020. She told her daughter, Christine O’Reilly that she wanted to make her will. Mrs Edwards used a paralegal to draft the will.

[4] In the will, she names her daughter, Christine O’Reilly and her son, Joseph Hall as joint executors. Joseph has renounced the executorship. The will leaves her property in equal shares to Christine and Joseph. Nothing is left to their sister, Lisa Hall.

[5] On March 26, 2020 the paralegal emailed the will to the testatrix. She then emailed it to her clerk, Tami Reimer, asking her to print it so that it could be executed and witnessed. Mrs O’Reilly drove the testatrix to the insurance agency. As it was the height of COVID, they did not go inside. She, Tami Reimer and Johan Van Noort, another employee of the agency, met on the back deck. Mrs O’Reilly was a few feet away.

[6] According to Mrs O’Reilly, Tami brought the will and two powers of attorney and gave them to the testatrix. The testatrix signed the will, then handed it to Tami, who signed and gave it to Johan, who signed in turn. The will was given back to the testatrix. The process was repeated for each power of attorney.

[7] The testatrix died on November 12, 2020. Shortly thereafter Mrs O’Reilly spoke to her lawyer, who advised that an affidavit of execution would be needed from the witnesses. Mrs O’Reilly spoke to Ms Reimer about this. Ms Reimer agreed to provide the affidavit.

[8] In December, Mrs O’Reilly wound up the insurance agency. She gave Ms Reimer 14 weeks severance pay, which was more than required by the Employment Standards Act. Ms Reimer might have been entitled to more pay in lieu of notice at common law, but she had already mitigated her loss by finding work with Lisa Hall, who was also an insurance agent. Most of the testatrix’s clients went to Lisa Hall.

[9] Shortly thereafter, in response to a request from Mrs O’Reilly’s lawyer for what I infer was an affidavit of execution, Ms Reimer wrote back to say that she was not prepared to sign until the question of her entitlement to severance pay was resolved.

[10] Tami Reimer testified that on March 26, 2020 the testatrix showed up with the signature pages for the three documents in question and handed them to her and Mr Van Noort to sign. She did not see the testatrix sign and could not say whether she had already signed. She did this because the testatrix was her boss and had asked her to do this. Mr Van Noort testifies to essentially the same effect, although he claims to recall less detail.

[11] I believe Mrs O’Reilly and I do not believe Ms Reimer or Mr Van Noort.

[12] Mrs O’Reilly’s account was plausible and coherent. She presented well as a witness.

[13] Ms Reimer, on the other hand, had obviously changed her tune because she was not happy with the severance package. The letter, which was exhibit 8, is essentially a smoking gun. It destroys her credibility.

[14] Ms Reimer also admitted that the testatrix often asked her to print things. That must be because she did not have a printer at home, as Mrs O’Reilly said. Furthermore, Mrs O’Reilly produced the emails of March 26, 2020. Mrs O’Reilly must be right to say that Ms Reimer produced the paperwork, not the testatrix.

[15] Ms Reimer and Mr Van Noort’s testimony is also contradicted by the very paper they signed, which contains the usual recitation that it was signed by “us” in the presence of the testator and each other. I do not believe that they would sign papers blindly.

[16] I thought that Ms Reimer was lying. I am prepared to be charitable enough to Mr Van Noort to say that he does not really know any more. Ms Reimer is motivated by spite. They are both motivated by loyalty to their new employer, Lisa Hall.

[17] Mrs O’Reilly’s evidence, which I accept, established that the will was executed in compliance with the requirements of the Succession Law Reform Act.

[18] After announcing my decision I heard from the parties on costs. This trial should not have been necessary. It was obvious that the signing witnesses were playing games. The execution was readily proven by the first hand evidence of Mrs O’Reilly. I would not go so far as to order the unsuccessful party, Lisa Hall, to pay costs, but neither would I order the estate to pay her costs. I make no order as to costs. As executrix, Mrs O’Reilly is entitled to her actual costs from the estate.

J.A. Ramsay J.

Date: 2022-06-17