COURT FILE NO.: CV-21-00673178-00ES
DATE: 20220727
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: STEVE DIMAKARAKOS, in his capacity as named estate trustee of the estate of Theoni Bitaxis, Applicant
AND:
CHRISTINA ALIMENA, LIZA BITAXIS, JAMES BITAXIS, VASSILIKI BITAXIS, BESSY BITAXIS, GEORGE BITAXIS, ANGELOS BITAXIS, BILL BITAXIS, PAOLO CHAKIRIS, KYRIAKOS CISCO, BESSY DIAMANTAKOS, KYRIAKI DIMAKARAKOS, ATHANASIOS DIMAKARAKOS, PANAGIOTIS DIMAKARAKOS, STELLA ECONOMOU, MARIA KAPAKOS, DINA KAPAKOS, SOPHIA KALOGERAKOS, PETER KAPAKOS, BESSY LASSIS, STAVROULA ORPHANAKO, DANNY PARIGORIS, BESSY PSIHOPEDAS, DEMOSTHENES PARIGORIS, LOUIS RIGAKOS, CHRISTINA STAMATATOS, EVA STAROGENIS, MARIA STONE, LAURA STONE, PETER STONE, THE CHILDREN’S LAWYER on behalf of the minor, unborn and unascertained beneficiaries of the estate, Respondents
BEFORE: Justice Cavanagh
COUNSEL: Benjamin D. Arkin and Mallory Laurie, for the Applicant
David Morgan Smith and Mark Lahn, for the Respondent George Bitaxis
HEARD: July 22, 2022
ENDORSEMENT
Introduction
[1] The Applicant, Steve Dimakarakos, is the named estate trustee of the estate of Theoni Bitaxis, deceased.
[2] The Applicant, in this capacity, brings this application for:
a. An Order vacating the Notice of Objection dated July 2, 2021 of the respondent George Bitaxis in response to the Applicant’s application for a Certificate of Appointment of Estate Trustee with a Will with respect to the Last Will and Testament of Theoni Bitaxis dated April 18, 2019 and Codicil dated July 2, 2019 (the “2019 Will”).
b. An Order that the Registrar issue a Certificate of Appointment of Estate Trustee with a Will with respect to the 2019 Will.
[3] I refer to the Applicant, Steve Dimakarakos, the Respondent, George Bitaxis, and the deceased by their first names, for convenience.
[4] George is Theoni’s great-nephew by marriage and her godson. George is a beneficiary of the Estate of the deceased.
[5] In his Notice of Objection, George objects to the issuance of a Certificate of Appointment of Estate Trustee with a Will with respect to the 2019 Will because of “lack of testamentary capacity, undue influence and suspicious circumstances”.
[6] On this application, Steve’s submits that George has failed to meet the minimal evidentiary threshold for his Objection.
[7] George submits is that he has provided specific, corroborated evidence relating to the capacity of Theoni to execute the Will and Codicil and the potential for undue influence. He submits that he has satisfied the minimal evidentiary threshold and should be permitted to review documents he seeks and have the opportunity to examine the drafting lawyer.
[8] For the following reasons, I conclude that George has failed to adduce, or point to, some evidence which, if accepted, would call into question the validity of the 2019 Will. The application is granted.
Factual Background
[9] Theoni died on January 14, 2020, at the age of 90. She is predeceased by her husband (also named George Bitaxis). She did not have any children. Theoni had a large extended family, including 6 siblings. Her husband also had a large extended family, including 4 siblings. Theoni and her husband together had 22 nieces and nephews and 13 great-nieces and great-nephews, many of whom she remembered wills.
[10] The estimated date of death value of Theoni’s estate is approximately $1.85 million. The primary asset of the estate is Theoni’s home with an estimated date of death value of $1.55 million
[11] Theoni made wills or codicils in 1997, two in 2014, 2016, 2018 and two in 2019. She used the same law firm.
[12] The 1997 Will appointed her husband as executor but in the wills thereafter she appointed Steve as executor and Peter Kapakos as the alternate, both nephews from her side of the family.
[13] In the Will executed by Theoni in 2018 (the “2018 Will”), George receives a one-half share of the house less $70,000 and the right of first refusal to buy it at fair market value.
[14] In the 2019 Will, George receives a one-quarter share of the house less $35,000.
Analysis
[15] The issue on this application is whether George has met the minimal evidentiary threshold for his challenge to the validity of the 2019 Will.
[16] I first set out the applicable legal principles.
[17] In Neuberger v. York, 2016 ONCA 191 the Court of Appeal held, at para. 88:
In my view, an interested person must meet some minimal evidentiary threshold before a court will accede to a request that a testamentary instrument be proved. In the absence of some minimal evidentiary threshold, estates would necessarily be exposed to needless expense and litigation. In the case of smaller estates, this could conceivably deplete the estate. Furthermore, it would be unfair to require an estate trustee to defend a testamentary instrument simply because a disgruntled relative or other potential beneficiary makes a request for proof in solemn form.
[18] In Neuberger, at para. 89, the Court of Appeal held that to meet the evidentiary threshold, the person seeking to challenge a will must adduce, or point to, some evidence which, if accepted, would call into question the validity of the testamentary instrument that is being propounded. If the person fails in that regard or if the propounder of the testamentary instrument successfully answers the challenge, and the application or motion to challenge the will should be dismissed.
[19] Bare allegations and mere suspicions are not enough to meet the minimal evidentiary threshold. There must be an air of reality to the allegations. See McBeath v. Wright, 2021 ONSC 4494, at paras. 14-15.
[20] In Seepa v. Seepa, 2017 ONSC 5368, Myers J. cited the principles from Neuberger and the policy concerns underlying them and, at para. 35, explained how they should be applied:
At this preliminary stage, the issue is not whether the applicant has proven his or her case but whether he or she ought to be given tools, such as documentary discovery, that are ordinarily available to a litigant before he or she is subject to a requirement to put a best foot forward on the merits. Normally, a litigant must just plead facts that support a cause of action to become entitled to use the full panoply of fact-finding tools provided by the Rules. In estate cases, more is required. Some evidentiary basis to proceed is required in order to address the specific policy concerns that are discussed above.
[21] George relies on his own affidavit evidence in which he states:
a. Theoni, during the last year of her life and when the 2019 Will was executed, told him that medication she was taking made her moody, unwell or aggressive, she often felt unwell and fatigued and could not think or experienced confusion, and that sounds or lights bothered her.
b. Theoni was admitted frequently to the hospital over the course of 2019 until her death.
c. George observed that Theoni was experiencing hearing loss.
d. In 2019, Theoni was prescribed an increased amount of medication by a psychiatrist.
e. On several occasions during 2018, Theoni told George that she would be leaving half of her house to him.
f. Over the course of 2019, George observed that Theoni began to exhibit uncharacteristic behaviour. The example given is that Theoni refused to see George when he stopped by her house on his birthday (June 22, 2019) after he inadvertently had failed to deliver a bottle of olive oil to her distant relative, Helen Panagakos. This behaviour seemed to correspond with an increased frequency of visits to Theoni’s house by Christina Stamatatos.
[22] George also relies on affidavit evidence from Stella Economou, a relative of Theoni by marriage, who states:
a. The year before Theoni died, she was not generally feeling well, would need to lay down more often, and was in and out of the hospital.
b. Theoni would often complain about the pills she was taking.
c. Theoni would often say that she would see her dead husband sitting or sleeping beside her and felt as if he was tugging on her clothes. Stella describes these as “hallucinations”.
d. When Stella and her sister returned from a four day trip to Las Vegas and called Theoni to visit her, she said she was not well and wanted to see them again (they had visited her before the trip). Theoni then complained that Stella and her sister were too busy going to Las Vegas and other places to visit her.
e. Theoni seemed forgetful at times.
f. Christina Stamatatos would spend an increasing amount of time at Theoni’s home over the last year or so of her life.
g. Theoni and Christina were in a car accident one day going to church.
[23] George also relies on affidavit evidence from Helen Panagakos, a distant relative by marriage of Theoni, who states:
a. Theoni informed her in 2018 that she would be giving George fifty per cent of her home in her will.
b. Theoni often told her that she would have vivid dreams about her late husband as well as Helen’s late husband.
c. After Theoni’s husband died, she started to take Theoni to church on a frequent basis. However, in the last year or so of Theoni’s life, Christina Stamatatos started to take Theoni to church more often and, the odd time, Steve Dimakarakos would take her.
[24] George placed into evidence through his supplementary affidavit records of medications prescribed to Theoni during the period from 2016 to 2019. These records show that Dr. Damien Gallagher, a psychiatrist, prescribed medications to Theoni. George points to evidence that on December 28, 2016, Theoni was prescribed a medication called Duloxetine at a dosage of 30 MG. The records show that on December 24, 2018, this medication was prescribed at a higher dosage of 60 MG. This change was made after the 2018 Will and before the 2019 Will.
[25] George relies on the Endorsement of Dietrich J. in Stone v. Firestone released on June 14, 2022 where the evidence in support of an application for an order giving directions in support of a will challenge was limited to the applicant’s affidavit. In Stone, the applicant deposed that the deceased, following heart surgery, experienced a sharp decline in her cognitive function and was unable to identify family members and, around the same time, she was diagnosed with dementia. The applicant’s evidence was that by the time the will was executed, the deceased’s cognitive function was impaired and she was rarely coherent. The applicant’s evidence was that the will was prepared by the brother-in-law of one of the respondents and that the respondents began exercising significant influence over the deceased and her financial affairs, and that the will did not reflect the deceased’s intention to benefit her four children equally. Dietrich J. cited Neuberger and Martin v. Martin, 2018 ONSC 1840 with respect to the required evidentiary threshold for a will challenge and found that although the applicant’s evidence lacked corroboration, he had met the low threshold, albeit barely, and he should be given access to the deceased’s medical records and files which may provide the corroboration required for the applicant to comply with the Evidence Act and allow him to advance his will challenge.
[26] George submits that the evidence he has provided is stronger than the evidence in Stone because he has provided evidence from Stella and Helen, and through the prescription drug records, that corroborates his own affidavit evidence. George submits that this evidence is more than sufficient to meet the minimum evidentiary threshold, and having met this low threshold, he is entitled to production of legal and medical records in order to determine whether Theoni had the requisite capacity to execute the 2019 Will or was unduly influenced in the execution of the 2019 Will.
[27] George’s evidence that Theoni was not feeling well in 2019 and was in and out of the hospital, that she reported that she would often feel fatigued and experience confusion, and her medication made her moody, aggressive and unwell, is not evidence that Theoni was experiencing health issues that potentially resulted in a loss of testamentary capacity at the time that the 2019 Will was executed. George’s evidence that Theoni suffered from hearing loss and sensitivity to sounds or lights also does not shed any light on her testamentary capacity. George does not provide evidence of the reasons for the hospital visits or that the visits related to an illness that may have affected Theoni’s testamentary capacity. This evidence, considered with all of the evidence, does not call into question the validity of the 2019 Will.
[28] The evidence that in 2018 Theoni told George and others that she intended to give George half of the house in her will is consistent with the 2018 Will. Steve accepts that this was Theoni’s intention in 2018. Theoni made several changes to her wills over the years, using the same law firm. The evidence of her intentions in 2018 does not call into question her intentions with respect to the 2019 Will.
[29] Stella’s evidence about what she was often told by Theoni about her late husband (that she would see him sitting or sleeping beside her and felt as if he was tugging on her clothes) must be considered with Helen’s evidence that Theoni described these experiences as “vivid dreams”. This evidence does not call into question Theoni’s testamentary capacity.
[30] George’s evidence that in 2019 Theoni began to exhibit “uncharacteristic behaviour” is supported by only one example (her refusal to see George after he failed to deliver a bottle of olive oil to a relative). No further details are provided about this incident. The evidence of this incident does not show how Theoni’s behaviour on this occasion differed from her usual behaviour or, if it differed, how the difference may shed light on her mental capacity or the existence of undue influence. This incident does not show a pattern of uncharacteristic behaviour and there is no evidence of such a pattern other than George’s bald statement. This evidence does not call into question Theoni’s 2019 Will.
[31] The evidence that Theoni was seeing Christina Stamatatos more often in 2019, and that Christina took her to church more often, does not suggest that Christina, or anyone else, may have exercised undue influence over Theoni.
[32] Stella’s evidence about Theoni’s reaction to the trip to Las Vegas does not suggest that Theoni may have lacked testamentary capacity.
[33] Stella’s evidence that Theoni was in a car accident in 2019 does not describe the severity of the accident, whether Theoni was injured in any way, or whether she needed and received medical treatment. This evidence does not call the 2019 Will into question.
[34] George places particular reliance on the evidence that Theoni was seeing Dr. Gallagher, a psychiatrist, and being prescribed medication, the dosage of which had increased before the 2019 Will was executed. George submits that the evidence of an increased dosage of medication prescribed to Theoni by Dr. Gallagher after the 2018 Will but before the 2019 Will speaks to Theoni’s judgment and functioning when the 2019 Will was executed. George submits that this evidence is sufficient to meet the minimal evidentiary threshold.
[35] Although Theoni was being prescribed medication by Dr. Gallagher in 2019 when the 2019 Will was executed, she had been seeing him for at least three years and she was being prescribed medication in 2018 when the 2018 Will, which George seeks to show is the valid one, was executed. Many people receive medical treatment and are prescribed medications for a wide variety of mental health conditions which fall on a spectrum of severity and which have different symptoms and effects. Some mental health conditions, whether treated or untreated, may have the potential to affect testamentary capacity, depending on their symptoms and severity, while others may not. Some medications may be associated with side effects which have the potential to affect testamentary capacity, while others may not. It was open to George to tender evidence to support a suggestion that administration of Duloxetine and an increased dosage of this medication from 30 MG to 60 MG in late 2018 may possibly have affected Theoni’s testamentary capacity. He did not do so.
[36] The evidence that Theoni was seeing a psychiatrist and being prescribed medication, the dosage of which increased in late 2018, is not evidence suggesting that Theoni may have lacked testamentary capacity when the 2019 Will was executed. George’s suggestion that the increase in the dosage of medication prescribed to Theoni in late 2018 may have affected her testamentary capacity in relation to the 2019 Will is nothing more than speculation. This evidence, when considered together with the full evidentiary record, does not call into question the 2019 Will.
[37] In Stone, the applicant provided evidence that the deceased was suffering from cognitive decline, was diagnosed with dementia, and was rarely coherent when the will in question was executed. This evidence, although uncorroborated, if accepted, would have called into question the validity of the will, and was held to be sufficient, “albeit barely”, to meet the minimal evidentiary threshold. In contrast, the evidence upon which George relies does not suggest that Theoni may have lacked testamentary capacity, or that she was potentially subject to undue influence, when the 2019 Will was executed.
[38] For these reasons, I conclude that George has failed to adduce, or point to, some evidence which, if accepted, would call into question the validity of the 2019 Will.
Disposition
[39] I make an order:
a. Vacating George Bitaxis’s Notice of Objection dated July 2, 2021.
b. Directing that the Registrar shall issue a Certificate of Appointment of Estate Trustee to Steve Dimakarakos with respect to his Application for a Certificate of Appointment of Estate Trustee dated January 22, 2021.
[40] The Applicant seeks costs of this application on a partial indemnity scale in the amount of $20,000. He provided a Costs Outline showing a claim for costs on a partial indemnity scale (based on 65% of full indemnity costs) in the amount of $20,194.67 comprised of fees of $16,622.12, HST on fees of $2,160.88, and disbursements inclusive of HST of $1,411.67.
[41] I have considered the Applicant’s Costs Outline having regard to the factors in rule 57.01(1) of the Rules of Civil Procedure. I am satisfied that the amount claimed is fair and reasonable for George Bitaxis to pay on this application.
[42] Costs of this application are fixed in the amount of $20,000 and shall be paid by the Respondent George Bitaxis to the Applicant within 30 days.
Cavanagh J.
Date: July 27, 2022