Court File and Parties

COURT FILE NO.: CV-21-87990 DATE: 2022-08-25 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: CECIL McKENZIE, Applicant and RUBY HILL, LUCILLE HUDSON, CAROL McKENZIE, DIANNE McKENZIE, JOAN McKENZIE and MARIE McKENZIE-TOLA, Respondents

BEFORE: Justice H. J. Williams

COUNSEL: Dilshad Mohammed, Counsel for the Applicant

HEARD: June 30, 2022 and in writing

Endorsement

Overview

[1] The applicant, Cecil McKenzie, seeks a declaration that a hand-written document is a valid holographic will prepared by his late sister, Joyce Hillman. Mr. McKenzie also seeks an order permitting him to apply to be trustee of Ms. Hillman’s estate. Alternatively, Mr. McKenzie asks for an order permitting him to apply for a certificate of appointment without a will for Ms. Hillman’s estate.

[2] Mr. McKenzie’s counsel appeared before me on June 30, 2022. I requested further evidence in respect of Ms. Hillman’s capacity at the time she prepared the document. Counsel subsequently filed a supplementary affidavit sworn by Mr. McKenzie’s daughter-in-law, Eva Katic.

[3] I have considered this matter carefully since counsel first appeared before me and, for the reasons that follow, I must conclude that the document is not a holographic will. I will adjourn the balance of the application to permit Mr. McKenzie to file further evidence relating to his request for an order permitting him to apply for a certificate of appointment without a will.

Background

[4] Ms. Hillman died in Ottawa on April 29, 2020. She was 88. Her husband predeceased her. She had no children.

[5] Mr. McKenzie is Ms. Hillman’s brother. They had three other siblings. A brother died in 2017. Neither of the two other surviving siblings nor the four children of the deceased brother lives in Canada.

[6] Ms. Hillman and Mr. McKenzie were close. After Ms. Hillman’s husband died in 2002, Ms. Hillman relocated to Toronto from the United States to be closer to Mr. McKenzie. Ms. Hillman bought a condominium unit in Mississauga.

[7] In the spring of 2011, Mr. McKenzie learned that Ms. Hillman’s condominium unit was at risk of being sold because she had failed to pay her condominium fees. Mr. McKenzie began to assist Ms. Hillman with her finances. Later that year, following a medical assessment, Ms. Hillman was moved to a retirement residence.

[8] On July 17, 2012, Ms. Hillman was declared to be incapable of managing her property and her personal care and Mr. McKenzie and his son John were appointed as her joint guardians.

[9] Mr. McKenzie moved to Wakefield, Quebec in 2012. At that time, Ms. Hillman was moved to a retirement residence in nearby Ottawa.

[10] According to the affidavit of Mr. McKenzie and the supplementary affidavit of Mr. McKenzie’s daughter-in-law, Eva Katic, Ms. Hillman’s cognitive abilities improved somewhat after she moved to Ottawa and, at that time, Ms. Hillman began to handle some of her own financial affairs once again.

[11] Mr. McKenzie and Ms. Katic say that in or around 2013, Ms. Hillman asked Mr. McKenzie to invest the proceeds from the sale of her Mississauga condominium unit in some real estate in Ottawa. With the assistance of a real estate agent, Ms. Hillman purchased a condominium unit on Ottawa’s Clarence Street.

[12] Mr. McKenzie says he rented out the Clarence St. property when possible and used the income to pay for the property’s upkeep and for Ms. Hillman’s expenses.

[13] Mr. McKenzie says that in or around the fall of 2014, Ms. Hillman gave him a document she described as being her will. In his affidavit Mr. McKenzie said: “She informed me that according to the document I was to have her condo and property upon her death and that I was to manage her affairs.”

[14] The document was dated October 28, 2014. It was entirely in handwriting, signed by Ms. Hillman and witnessed by a person Ms. Hillman identified as being a friend who lived at the same residence. The document read as follows:

October 28, 2014

An Agreement to Transfer Property

I Joyce B. Hillman residing at The Red Woods Seniors Retirement (sic) do solemnly states (sic) that I wish to transfer my property at 12 Clarence Street, number 12 unit, Ottawa, Ontario, K1N 5P3 to my Brother Cecil McKenzie to be the sole owner. He can sell it at any time he wishes to do so without any interference by anyone. I have appointed him guardian and to be in full control of my finances. I set my hand this 28th day of October two thousand & fourteen and sign this agreement.

Signed Joyce B. Hillman

Witness: Audrey E. Logan

[15] In her initial affidavit, Ms. Katic said that Mr. McKenzie told her about the document Ms. Hillman had given to him. Ms. Katic said that Mr. McKenzie told her that Ms. Hillman had presented the October 28, 2014 document to him as a will. Ms. Katic said that about a month later, she asked Ms. Hillman if she wanted to see a lawyer about her personal affairs and Ms. Hillman said that seeing a lawyer would not be necessary. In a supplementary affidavit, Ms. Katic said that Ms. Hillman said that she was in good hands with Mr. McKenzie and that she did not want to spend money on lawyers.

[16] Ms. Hillman’s health began to decline in or around the fall of 2015.

[17] Ms. Hillman died of COVID in April 2020.

[18] Mr. McKenzie says Ms. Hillman’s assets included the Clarence St. condominium, which was vacant at the time of her death, and some personal belongings.

[19] Mr. McKenzie said that no will was found among Ms. Hillman’s belongings after she died and that he had no indication that Ms. Hillman had made any testamentary documents other than the document she signed on October 28, 2014.

The issues

[20] The first issue is whether the document Ms. Hillman signed on October 28, 2014 is a holographic will.

[21] The second issue depends on the outcome of the first. It is whether Mr. McKenzie may apply either to be trustee of Ms. Hillman’s estate or for a certificate of appointment without a will.

Analysis

Issue #1: Is the October 28, 2014 document a holographic will?

[22] Section 6 of the Succession Law Reform Act, R.S.O. 1990, c. S. 26, provides that a testator may make a valid will, wholly by his or her own handwriting and signature, without formality, and without the presence, attestation or signature of a witness.

[23] In Bennett v. Gray, 1958 CanLII 49 (SCC), [1958] S.C.R. 392, the Supreme Court of Canada said that to be a valid holographic will, the person propounding the document must satisfy the court that it contains “a deliberate or fixed and final expression of intention as to the disposal of property upon death” and that the propounder may rely on extrinsic evidence:

There is no controversy, either in the reasons for judgment in the Courts below, or between the parties, that under the authorities, a holographic paper is not testamentary unless it contains a deliberate or fixed and final expression of intention as to the disposal of property upon death, and that it is incumbent upon the party setting up the paper as testamentary to show, by the contents of the paper itself or by extrinsic evidence, that the paper is of that character and nature. (Bennett, at p. 396.)

[24] Not every note written in hand before death will be found to be a will. It is necessary that the testator intends the document to be a testamentary document. According to Feeney’s Canadian Law of Wills (4th Edition) at p. 1.4, para. 1.7, “[a] testamentary gift occurs when the donor intends to make a gift that is effective only at the donor’s death and is revocable until then—the gift is said to be “dependent on death for its vigour and effect.’” (Atherton Estate, Re, 2006 CanLII 30580 (Ont. S.C.), at paras. 11-12.)

[25] As a preliminary matter, I am satisfied that the October 28, 2014 document was in Ms. Hillman’s handwriting. I accept the evidence of the handwriting expert who compared the document with other handwriting samples known to have been written by Ms. Hillman and concluded that the handwriting was the same.

[26] In interpreting the October 28, 2014 document, I kept in mind that Ms. Hillman was not a lawyer. I attempted to read the document generously and to ascribe plain and ordinary meaning to the words Ms. Hillman chose.

[27] For several reasons, I am not persuaded that the October 28, 2014 document is a valid holographic will.

[28] Mr. McKenzie says that Ms. Hillman told him that the document was a will. In some respects, the document reads like a will. It begins with the words, “I Joyce B. Hillman”, and ends with the words, “I set my hand”, both phrases that might typically be associated with wills. It would be reasonable for someone of Ms. Hillman’s age to prepare a will; Ms. Hillman would have been around 82 in October 2014. However, in the document itself, Ms. Hillman refers not to a will but to an “agreement”. The title of the document is “An Agreement to Transfer Property”; at the conclusion of the document, Ms. Hillman refers to “this agreement”.

[29] Mr. McKenzie also says that Ms. Hillman told him that according to the document, he was to have her condo and property upon her death. (“She informed me that according to the document I was to have her condo and property upon her death and that I was to manage her affairs.”) This is not, however, what the document says. The document says that Ms. Hillman wishes to transfer her condo to Mr. McKenzie. Although there was evidence that Ms. Hillman had an account with Royal Bank of Canada and that, at least as of 2012, she had a safety deposit box in Florida, the document did not refer to any property other than the condo. The document did say that Ms. Hillman had appointed Mr. McKenzie to be her guardian “and to be in full control of” Ms. Hillman’s finances but the finances were not identified and controlling someone’s finances is not the same as being given ownership or future ownership of them.

[30] Mr. McKenzie says that Ms. Hillman told him that, according to the document, he was to manage her affairs. I am not persuaded that the reference in the document to Mr. McKenzie controlling Ms. Hillman’s finances (“I have appointed him guardian and to be in full control of my finances”) supports an argument that Mr. McKenzie was to manage Ms. Hillman’s finances following her death. The reference in the document to Ms. Hillman’s appointment of Mr. McKenzie as her guardian is more consistent with a hand-written document dated June 10, 2012 which was in evidence in which Ms. Hillman said: “To whom it may concern, [t]his is to inform you that it is my wish to appoint my Brother Cecil McKenzie as my guardian to assist me in anything that I need to have done.”

[31] Further, and significantly, the document does not refer to Ms. Hillman’s death or suggest that the transfer of the condo to Mr. McKenzie was intended to be triggered by Ms. Hillman’s death. Such an intention may be inferred in some circumstances (Rezaee, Re, 2020 ONSC 7584, at para. 30). Ms. Hillman would have been in her early 80s when she prepared the October 28, 2014 document and it would be reasonable to infer that the march of time could have been on her mind. That said, the language of the October 28, 2014 document does not support an inference that Mr. McKenzie was only to receive the condo upon Ms. Hillman’s death. As I have already noted, in the document, Ms. Hillman referred to the document as an “agreement”. If Ms. Hillman had used the word “will”, an inference could have been made that she did not want the condo to be transferred to Mr. McKenzie until after she died. However, Ms. Hillman did not use the word “will” nor did she say that she wanted “to leave” the condo to Mr. McKenzie, from which one could also make an inference in respect of her intention. Instead, in the context of a document in which Ms. Hillman made no reference to her death, Ms. Hillman used the active voice, saying that she wished “to transfer” the condo to Mr. McKenzie.[^1] The document also said, in reference to the condo, and in the present tense, that Mr. McKenzie “can sell it at any time…” The plain and ordinary meaning of the words in the document do not tie the transfer of the condo to Ms. Hillman’s death and contemplate that Mr. McKenzie, who had control of Ms. Hillman’s finances, could sell the condo immediately.

[32] I do not infer from the fact that Ms. Hillman recorded her wish to transfer her condo to Mr. McKenzie by writing and signing the October 28, 2014 document that it was to be operative only upon her death. Both Mr. McKenzie and Ms. Katic said in their affidavits that throughout her life it had been Ms. Hillman’s preference and practice to conduct her banking and financial affairs in writing.

[33] Without corroboration, I cannot consider Mr. McKenzie’s evidence about Ms. Hillman’s characterization of the document. Section 13 of the Evidence Act, R.S.O. 1990, c. E.23 provides that in estate litigation, “an opposite or interested party shall not obtain a verdict, judgment or decision on his or her own evidence in respect of any matter occurring before the death of the deceased person, unless such evidence is corroborated by some other material evidence.” In her first affidavit, Ms. Katic said that Mr. McKenzie had told her that Ms. Hillman had presented the October 28, 2014 to him as a will. However, in Burns Estate v. Mellon (2000), 2000 CanLII 5739 (ON CA), 48 O.R. (3d) 641, at para. 29, the Ontario Court of Appeal held that the corroboration required by s. 13 of the Evidence Act must be evidence independent of the evidence of the party whose evidence requires corroboration. I cannot consider Ms. Katic’s evidence to be independent of Mr. McKenzie’s evidence; it is a repetition of Mr. McKenzie’s evidence. If Mr. McKenzie misheard, misinterpreted or applied a gloss to what Ms. Hillman said to him, Ms. Katic’s evidence will suffer from the same flaws and cannot enhance the probability that Mr. McKenzie’s evidence is accurate.

[34] For these reasons, Mr. McKenzie has failed to satisfy me that the October 28, 2014 document contains a deliberate or fixed and final expression of intention as to the disposal of Ms. Hillman’s property upon death.

[35] Although this conclusion is determinative of Issue #1, I will also address whether there were “suspicious circumstances” surrounding the October 28, 2014 document. In doing so, I want to reassure Mr. McKenzie that I am not suggesting that there is evidence of any improper or questionable conduct on his part.

[36] “Suspicious circumstances” may include questions about the capacity of the person who prepared a will or other testamentary document. If such circumstances exist, the person propounding the document bears the onus of removing the suspicion and satisfying the court, on a balance of probabilities, that the purported testator knew and approved the contents of the document. (Vout v. Hay, 1995 CanLII 105 (SCC), [1995] 2 S.C.R. 876, at paras. 26-27.)

[37] In July 2012, relying on affidavits from Mr. McKenzie and his son, John McKenzie, a judge of this court found Ms. Hillman to be incapable of managing property and all aspects of personal care listed in s. 45 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30: health care, nutrition, shelter, clothing hygiene and safety. Mr. McKenzie and her son were appointed to be Ms. Hillman’s joint guardians. There was no evidence before me that that order was ever set aside.

[38] For this reason, I find that there were “suspicious circumstances” in this case, relating to Ms. Hillman’s capacity. Mr. McKenzie, therefore, bears the burden of satisfying me that Ms. Hillman had capacity to make a will at the time she prepared and signed the October 28, 2014 document.

[39] To make a valid will, a testator must have a “sound disposing mind”. In order to have a sound disposing mind, a testator must understand the nature and effect of a will, must recollect the nature and extent of their property, must understand the extent of what they are giving under the will, must remember the people that the testator might be expected to benefit under the will and must understand the nature of the claims that might be brought by persons excluded from the will. (Hall v. Bennett Estate, 2003 CanLII 7157 (ON CA), 2003, 64 O.R. (3d) 191, at para. 14.)

[40] As I noted at the outset of this endorsement, after Mr. McKenzie’s counsel appeared before me on June 30, 2022, I requested further evidence in respect of Ms. Hillman’s capacity at the time she signed the October 28, 2014 document. In a supplementary affidavit, Ms. Katic described her relationship with Ms. Hillman and said that after Ms. Hillman moved to Ottawa in 2012, Ms. Hillman was able to make decisions, talk about local politics, discuss her career in banking and share memories of her family. Ms. Katic also said that about a month after Mr. McKenzie told her about the October 28, 2014 document, Ms. Katic asked Ms. Hillman if she wanted Ms. Katic to find a lawyer for her in order to review her affairs. Ms. Hillman said that she had everything taken care of, that she was in good hands with Mr. McKenzie and that she did not want to spend money on lawyers. I infer that Ms. Katic was unable to provide any evidence specifically about Ms. Hillman’s capacity at the time she prepared and signed the October 28, 2014 document.

[41] There was no evidence from Mr. McKenzie about Ms. Hillman’s capacity at the time she prepared and signed the October 28, 2014 document.

[42] There was no evidence from Audrey Logan, the woman who witnessed Ms. Hillman’s signature on the October 28, 2014 document.

[43] There was no medical evidence or any evidence from a psychologist, psychiatrist, social worker or capacity assessor.

[44] For these reasons, Mr. McKenzie has failed to satisfy me that Ms. Hillman had a sound and disposing mind at the time she signed the October 28, 2014 document.

Conclusion with respect to Issue #1

[45] Mr. McKenzie has not persuaded me that the October 28, 2014 document contained a deliberate or fixed and final expression of intention as to the disposal of Ms. Hillman’s property upon death. Mr. McKenzie also has not persuaded me that Ms. Hillman had a sound and disposing mind at the time she signed the document. I find, therefore, that the October 28, 2014 document was not a valid holographic will.

Issue #2: May Mr. McKenzie apply for a certificate of appointment without a will for Ms. Hillman’s estate?

[46] Mr. McKenzie seeks an order that he is entitled to apply for a certificate of appointment without a will for Ms. Hillman’s estate.

[47] I am satisfied that Mr. McKenzie would be the appropriate person to apply for such a certificate. He was close to Ms. Hillman and he and his son were joint guardians of property and personal care for Ms. Hillman. Mr. McKenzie brought this application with notice to his surviving siblings and his late brothers’ four children, and none filed a notice of appearance.

[48] I am not satisfied, however, based on the evidence on this application, that Ms. Hillman does not have a will. There was no evidence that any search for a will had been undertaken. Mr. McKenzie’s evidence was only that he did not find a will among Ms. Hillman’s personal effects and that he did not “have indication” that Ms. Hillman had ever made a will other than the October 28, 2014 document.

[49] The application is adjourned to provided Mr. McKenzie an opportunity to locate a will for Ms. Hillman or, alternatively, to file further evidence to confirm that a careful search for a will was undertaken and that he was unable to locate such a will.

Disposition

[50] In summary, I find that the October 28, 2014 document is not a valid holographic will.

[51] Mr. McKenzie’s request for an order permitting him to apply for a certificate of appointment without a will of Ms. Hillman’s estate is adjourned to permit Mr. McKenzie to file further evidence.

[52] The issue of costs is also adjourned.

Date: August 25, 2022

COURT FILE NO.: CV-21-87990 DATE: 2022-08-25

ONTARIO SUPERIOR COURT OF JUSTICE

RE: CECIL McKENZIE, Applicant and RUBY HILL, LUCILLE HUDSON, CAROL McKENZIE, DIANNE McKENZIE, JOAN McKENZIE and MARIE McKENZIE-TOLA, Respondents

ENDORSEMENT

Williams J.

Released: August 25, 2022

[^1]: My thinking here is that a person contemplating an event that will take place after their death would be more likely to say “I want my condo to be transferred to X” (passive voice) than to say “I want to transfer my condo to X” (active voice) simply because, after death, someone other than the person will be required to carry out the transfer. A person might say “after I die I want to transfer my condo to X” but Ms. Hillman did not say anything about her death in the October 28, 2014 document. The plain and ordinary meaning of the phrase “I want to transfer my condo to X” is just that, that the person wants to transfer their condo to X. In my view, that the person who utters the phrase is 82 is not, without more, enough to support an inference that the person does not want the condo to be transferred until after they die.