COURT FILE NO.: CV-05-90/14
DATE: 20221014
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE ESTATE OF BEVERLY GRACE ROE, Deceased
BETWEEN:
ROBERT MARK ROE
Applicant
– and –
RICHARD THOMAS ROE, RANDALL SCOTT ROE and RAYMOND CHRISTOPHER ROE, in their capacity as Estate Trustees of the Estate of Beverly Grace Roe, Deceased and RICHARD THOMAS ROE and RANDALL SCOTT ROE, in their personal capacity
Respondents
AND
IN THE ESTATE OF BEVERLY GRACE ROE, Deceased
BETWEEN:
ROBERT MARK ROE
Plaintiff
-and-
RICHARD THOMAS ROE, RNDALL SCOTT ROE and RAYMOND CHRISTOPHER ROE, in their capacity as Estate Trustees of the Estate of Beverly Grace Roe, Deceased, and in their personal capacity
Respondents
Brendan Donovan & Noah Kochman, for the Applicant
Andrew Rogerson, Robert A. Rastorp and Nikhil Mukherjee, for the Respondents
Court File No: 05-121/16
Brendan Donovan & Noah Kochman, for the Plaintiff
Andrew Rogerson, Robert A. Rastorp and Nikhil Mukherjee, for the Respondents
HEARD: January 24-February 11, 2022
REASONS FOR JUDGMENT
Sugunasiri, J.:
Overview:
[1] Beverly Grace Roe (“Beverly”) died on July 12, 2014 at the age of 90, leaving four sons behind. For two decades she was the matriarch of the family dealing with her personal and financial affairs on her own, her husband having predeceased her. Beverly’s Last Will and Testament, dated August 24, 2005 (“Will”), named Richard Thomas Roe (“Rick”), Randall Scott Roe (“Randy”) and Raymond Christopher Roe (“Chris”) as beneficiaries. She excluded her fourth son, Robert Mark Roe (“Mark”). Prior to this change, Beverly had bequeathed her assets to all four of her sons.
[2] Mark applies to have the Will declared invalid on the basis that Beverly lacked capacity when she made the Will. Rick died on April 13, 2020. Rick’s estate and Randy oppose Mark’s application. In a related action commenced under Court File No. 05-121/16 (“Gift action”), Mark sues Rick, Randy and Chris to set aside monetary gifts that Beverly made prior to her death. Mark agreed at a trial management conference with Myers J. that if he is not successful in having the Will set aside, he has no standing to challenge the impugned gifts. Chris has settled with Mark and takes no position but agreed to testify.
[3] As noted by defence counsel in closing, the case seems complex with an avalanche of documents, but the issue is quite simple: Did Beverly have testamentary capacity when she made the Will? Mark argues that she did not because the Will was made in suspicious circumstances when Beverly was unduly influenced by Rick whom she lived with. Further, Mark argues that Beverly was operating under insane delusions about Mark and his family’s character and motives, which caused her to cut him out of the Will. According to Rick and Randy, the trouble started in 2000 with disagreement as to the transfer of the family chalet in Collingwood. This disagreement deteriorated into false allegations of elder abuse against Rick and Beverly’s dismay about a phone call made by Kathy Roe suggesting that Beverly have a psychiatric assessment. Rick and Randy assert that Beverly’s dismay with Mark and Kathy caused the disinheritance.
[4] For the reasons that follow, I dismiss both the Application and the Action. While I find that the Will was made under suspicious circumstances, the proponents of the Will, Randy and Rick, have persuaded me that Beverly had the requisite testamentary capacity to make it and was not operating under “insane delusions” when she disinherited Mark. Further, Mark has not persuaded me that Beverly was unduly influenced by Rick when she instructed counsel Donna Guidolin on the Will.
General Legal Framework:
A. The Test for Testamentary Capacity
[5] As the Ontario Court of Appeal stated in Stekar v. Wilcox, 2017 ONCA 1010, 32 E.T.R. (4th) 199, at para. 14, the test for determining testamentary capacity has been well-established since the Supreme Court, in Skinner v. Farquharson (1902), 1902 CanLII 87 (SCC), 32 S.C.R. 58, adopted the test set out in Banks v. Goodfellow (1870), L.R. 5 Q.B. 549, at p. 565:
It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.
[6] To determine the validity of the Will, I assess Beverly’s testamentary capacity at the time she instructed counsel (Ms. Guidolin) and executed it: Smith Estate v. Rotstein, 2010 ONSC 2117, 56 E.T.R. (3d) 216, at para. 118; Botnick et al. v. The Samuel and Bessie Orfus Family Foundation et al., 2011 ONSC 3043, 71 E.T.R. (3d) 210, at para. 103; Gironda v. Gironda, 2013 ONSC 4133, 89 E.T.R. (3d) 224, at para. 50.
B. Legal Burden
[7] In Vout v. Hay, 1995 CanLII 105 (SCC), [1995] 2 S.C.R. 876, at para. 26, the Supreme Court of Canada held that the “propounder” of a testamentary disposition has the legal burden of establishing due execution, knowledge, approval and testamentary capacity. In this case, it is Randy and Rick’s estate who are the propounders. However, once Rick and Randy establish that Beverly read, understood and executed the Will, there is a rebuttable presumption that Beverly knew and approved of her Will.
[8] In this case, Mark argues that Beverly executed the Will under suspicious circumstances. If Mark has adduced sufficient evidence to “raise an issue” or “excite the suspicion of a court” as to testamentary capacity, he displaces the rebuttable presumption. At that point it is up to Rick and Randy to establish on a balance of probabilities that Beverly had the mental capacity to execute the Will, did not suffer from insane delusions and understood the assets forming her estate in August of 2005: Stekar at para. 8; Royal Trust Corp. of Canada v. Saunders, 2006 CanLII 19424 (Ont. S.C.) at paras. 76-77, relying on Vout and Scott v. Cousins (2001), 37 E.T.R. (2d) 113 (Ont. S.C.) at para. 41.
[9] Finally, if Rick and Randy meet this burden, the onus shifts to Mark to prove on a balance of probabilities that Beverly was unduly influenced by Rick when making her Will; Seguin v. Pearson, 2018 ONCA 355, 141 O.R. (3d) 684, at para. 11.
Issues:
[10] Given this legal framework, the issues are:
(i) Has Mark established that Beverly executed the Will under suspicious circumstances? Yes
(ii) If so, have Randy and Rick’s estate proven on a balance of probabilities that Beverly understood the assets forming her estate in August of 2005 and was not operating under insane delusions that affected the disposition of her assets? Yes
(iii) If so, has Mark established on a balance of probabilities that Beverly was subject to undue influence at the time of execution of the Will? No
I. Mark has adequately raised suspicious circumstances
[11] In Vout, at para. 25, the Supreme Court stated that “suspicious circumstances 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.” In Gironda, at para. 55, and in Royal Trust, at para. 78, the Courts held that the presence of suspicious circumstances can be assessed by considering the following factors: the extent of physical and mental impairment of the testator at the time the will was executed; whether the will under consideration constituted a significant change from the former will; whether the will under consideration makes “testamentary sense”; the factual circumstances surrounding the execution of the will; and whether a beneficiary was instrumental in the preparation of the will.
[12] The parties filed numerous affidavits in the history of this litigation. The affidavits were ordered to form part of the trial record for the joint hearing of this application and action, and at least one court order suggested that all affidavits filed form the evidence-in-chief with the affiants called to give viva voce evidence for 30 minutes to highlight their evidence and be tested on cross-examination. There was debate at the trial whether previous court orders meant that affidavits filed in support of multiple motions in the proceedings were also to form part of the evidentiary record for this hearing. The totality of the affidavits are listed in Mr. Donovan’s letter to the court dated January 24, 2022. To avoid delay, Mr. Rogerson wisely declined to argue the point and did not object to their admissibility but made general submissions on weight.
[13] I conclude that Mark has adduced sufficient evidence to excite suspicion of the court with respect to Beverly’s execution of her Will in 2005. The largely uncontested timeline of events in Beverly’s life leading up to the Will change in August of 2005 raises suspicion due to the proximity of the Will change to Dr. Roussev’s early Alzheimer’s diagnosis, the total disinheritance of Mark who had previously enjoyed a close relationship with his mother, and the allegations of elder abuse against Rick.
Timeline of Events
a. Beverly and her sons prior to 2000
[14] Beverly and her husband Thomas were married for 47 years until he died on May 12, 1995. Her eldest son, Rick, lived with his parents for virtually his entire life and continued to do so until Beverly died on July 12, 2014. They lived at 68 Laurentide Drive in Don Mills. He was unmarried, though partnered with Lois, had no kids, and worked for some time as a real estate agent. Randy Roe, three years younger than Rick, is a chartered accountant and is married to Maureen. They have two adult children and live in Brampton. The Applicant Mark Roe is four years younger than Randy. He is an engineer and married to Kathy with whom he has three adult children. They live in Burlington. Chris Roe, the youngest and a chartered accountant, lives in Montreal and is married to Imogen with whom he has two adult children.
[15] After Thomas died, Mark and his family were in regular contact with Beverly whether at their home in Burlington, at Beverly’s home in Don Mills or at the family chalet in Collingwood. The brothers and families used the family chalet both with and without Beverly over the years since their father’s passing. There is dispute about who used it the most, but it is clear from the evidence that the chalet was a cherished family asset. Chris visited with Beverly about three times a year but spoke with her approximately once a week. He described himself as being the closest to Mark. Randy described that his busy accounting practice prevented him from using the chalet often but the tenure of his evidence, which I accept, is that he was in regular contact with Beverly.
[16] Mark, Chris, and to a lesser extent Randy agree that Rick was a difficult person and could be intimidating and controlling of the whole family. Mark noted that Rick was anti-social, aggressive at times, volatile and bad tempered and that these traits have been with him since childhood. Chris describes his relationship with Rick as up and down, and generally described Beverly and her sons as having strong personalities with no hesitation to express their feelings. Chris’ description of Rick, Mark and Randy accords with my own observations of them when responding to questions on cross-examination. Overall, they were combative during cross-examination when asked difficult questions or challenged on their answers. Chris was the least combative and the most credible and reliable.
b. Discussion about the chalet in the fall of 2000
[17] In the summer and early fall of 2000, it appears that Randy and Rick discussed suggesting to Beverly that she transfer the chalet into the boys’ names or Rick’s name to avoid the tax consequences to the estate that would be triggered upon Beverly’s death. Rick also seemed to be concerned about the source of the funds used to pay for the chalet. I surmise that Rick was concerned about the chain of ownership of the chalet. Mark testified that Beverly felt that Rick was harping on the issue of avoiding capital gains on the chalet. It is clear, however, that Mark’s biggest fear at that time was that, to avoid capital gains, Beverly could transfer the chalet solely to Rick. By this time there was clear mistrust between Mark and Rick, and the duelling began to land on the appropriate transfer agreement. During that time Rick asked Beverly to confirm the source of funds for the chalet. Mark believed this to be untoward because Beverly complained about it. Her complaint however was that Rick did not explain why she needed to confirm that information. Objectively, this is in fact neither here nor there – the chain of title is relevant for the transfer of property. But this exemplifies how the entire family, including Beverly, made mountains out of molehills. Similarly, Randy and Rick believed that Mark’s proposed chalet agreement, first drafted on October 7, 2000, was one sided, where Beverly’s interests including having appropriate funds for her care were subordinate to Mark’s ability to use the chalet. Beverly expressed her wishes about the chalet in a handwritten letter to her boys dated October 24, 2000. In that letter she noted that there were family tensions even before the chalet issue and that she wanted to keep the chalet in the family despite the trouble it seemed to be causing.
[18] Ultimately Beverly decided to transfer the cottage equally to her four boys without an agreement. She and Rick first went to see Mr. Bulmer in Collingwood. Mark felt the need to interfere with the process and ultimately Beverly used a different lawyer who she did not disclose to Mark. I accept Randy’s evidence that Beverly did not want Mark to know who the transferring lawyer was. On December 18, 2000 Mark wrote Rick and Randy a letter expressing his dismay over proceeding with the transfer without a legal agreement in place and without their mother obtaining independent legal advice. In other words, Mark was already raising the sceptre of future challenge. Indeed, he said as much when he wrote “If Mom signs a deal or transfers the chalet without receiving independent legal council, you are then leaving the door open that anything she signs could be contested by Mom or any of the four boys or their estates in the future.” Beverly transferred the chalet to her four sons on January 12, 2001, using a different lawyer.
c. Beverly executes a 2001 Will and POAs naming all four sons
[19] In February of 2001 Beverly went to see her lawyers in Toronto and updated her Will and Powers of Attorney, naming all four sons as attorneys and executors of her estate.
d. Allegations of Elder Abuse by Rick
[20] In August of 2001 Kathy took notes of a conversation with Beverly when Beverly was complaining about Rick’s behaviour. Based on Kathy’s testimony and the text of the notes, it is clear that Rick has always been difficult, and his behaviour is something Beverly has lived with her entire life. At one point they tried to ascribe his disposition to his experience in the birth canal. What is clear from Kathy’s notes is that Kathy was the one to suggest that the situation with Rick was not one Beverly should tolerate, despite having tolerated it her whole life. Also of note is that, as early as 2001, Beverly stated that Rick did not take it out on her when he was irritated about Kathy phoning. Beverly did suggest however that Kathy not call to avoid Rick’s attitude. Kathy’s concern at the end of the call was how intimidated her children felt when they called Grandma.
[21] Both Kathy and Mark testified that they were genuinely concerned for Beverly’s welfare throughout the fall and winter of 2001. They decided that they would consult with a family services worker and did so on January 10, 2002. Mark and Kathy sent family services a letter which they circulated to Chris prior to sending and consulted with Ellie Sheridan thereafter. Her notes are part of Exhibit 1. She simply reports what Mark and Kathy told her and concludes based on their version of the facts, that “Rick sounds like a person with personality/behavioural problems who has taken control of his mother’s life and uses his anger and threats to keep the family at arm’s length”. Ms. Sheridan recommends a list of possible interventions regarding Rick’s treatment of his mother rather than on the inheritance issues including meeting with the other family members to define the nature of the abuse and enlist support.
[22] Later in March Mark gave Randy a copy of the letter and Randy asked his mother about the alleged abuse. Randy testified, and I accept, that during this time Beverly described to Randy that Mark and Kathy were pressuring Beverly to see the counsellor. Randy also testified that his mother categorically denied any abuse. Ultimately Beverly met with Ms. Sheridan on September 24, 2002 and nothing further came of the meeting. Ms. Sheridan did not pursue any of the recommendations made and did not contact any of the other family members.
[23] Instead, Mark and Kathy escalated the matter to the police and spoke to PC Green. Officer Green testified at trial. Officer Green indicated that he first met with Mark, Kathy, Chris and Beverly on March 21, 2003. According to him, Beverly did not tell Rick about that meeting because she believed he would get upset, angry and would swear at her. Officer Green and his colleague also visited Beverly at home and found her to be welcoming and polite. The officer had a second family meeting, this time with Beverly, Rick and Randy. Beverly denied any abuse. Officer Green told Beverly that he did not believe her and “warned” Rick, but took no further police action. In a recorded telephone call between Beverly and Mark on March 23, 2003, Beverly asked Mark not to have “the man” come and confront Rick. She intended to discuss elder abuse with him. Of note is Mark’s comment that Beverly was not the only victim, but that he was also hurt, upset and a victim. Mark advised her that she was going to see a different Mark and that if the issues did not resolve, he would pull away from the family. Also of note is his focus on the various actions Rick took before Beverly transferred the chalet.
[24] On April 9, 2003 Mark recorded a phone call with Beverly, where they discussed Rick and the police and said, “Why don’t you phone them up and call them off?” Mark responded, “I can’t call them off.” In that same telephone call Beverly categorically stated that “there is no absolutely…absolutely no… no problem here. There isn’t.” Beverly also advised Mark that the situation with the police was hard on her, and that Rick would let Kathy call anytime and come over when she wanted to. Throughout these calls, it is clear that Beverly was trying to mediate the problems between her sons.
[25] Beverly also considered having a family mediation to resolve the conflict but ultimately cancelled it because she found out that the mediator had been talking to Kathy. According to Randy, Beverly only wanted her sons to be present.
e. Kathy’s Call to Beverly’s Doctor regarding psychiatric assessment and Beverly’s ability to drive
[26] On April 10, 2003 amidst the raucous of reporting Rick’s alleged elder abuse to family services and to the police, Kathy called Beverly’s doctor, Dr. Roy, to apprise her of the situation with Rick, Beverly and the police. Kathy attested that she wanted Dr. Roy to know the information in case Beverly reached out to her. As recommended by Ellie Sheridan, Kathy raised with Dr. Roy the possibility of referring Beverly to Sunnybrook Hospital for counselling. Dr. Roy made a note stating, “daughter-in-law wishes me to refer mother to psychiatrist for counselling.” In that same note, Dr. Roy wrote “Doesn’t drive?” Beverly later saw this note and was very upset that Kathy had called her doctor, told her she needed a psychiatric assessment and told her that she could not drive. Shortly after Beverly found out about Kathy’s call to Dr. Roy, on April 24, 2003, Beverly removed Mark as one of her Attorneys for Property and Personal Care.
[27] Kathy and Mark wrote to Dr. Wynnchuk (Beverly’s regular family doctor, who Dr. Roy was standing in for) on September 30, 2003, explaining the context of the conversation and also advised Beverly and Dr. Roe several times before and after Mark was disinherited that Beverly had misunderstood the doctor’s note. Kathy was categorical in stating that she did not tell Dr. Roy that Beverly had vertigo and could not drive. On October 6, 2003, Beverly wrote to Dr. Wynnchuk annoyed that Mark was wasting his time by troubling him with her family issues.
f. Beverly’s decision to sell the chalet
[28] On January 20, 2004, Beverly wrote a letter to her four sons indicating her wish to sell the chalet. She threatened disinheritance of any son who did anything to scuttle the sale. In December of 2004 Beverly organized and celebrated her 80th birthday with friends and her club. The chalet was sold on February 28, 2005.
g. Dr. Roy’s referral of Beverly for neurological assessment on February 8, 2005 and the early Alzheimer’s diagnosis
[29] Beverly visited Dr. Roy on February 8, 2005, just before the sale of the chalet, and queried whether she was developing Alzheimer’s due to some memory loss that she was experiencing when playing bridge. Dr. Roy referred Beverly to Dr. Roussev. Dr. Roussev confirmed on April 7, 2005 that the working diagnosis was early Alzheimer’s with some memory and other cognitive deficits as reflected through standard cognitive testing (MMSE). As a result of his diagnosis, Dr. Roussev prescribed Beverly with Exelon and advised her that he had to refer the matter to the Ministry of Transportation. In June of 2005, Beverly failed her driver’s test and lost her licence.
h. The disinheritance
[30] On May 24, 2005 Beverly complained to Dr. Roy about Kathy’s false statements. At that time Rick was also present and talked about Kathy’s desire to get Beverly’s property for herself. Dr. Roe’s notes, made contemporaneously, indicate that both Beverly and Rick stated that the chalet was sold and the estate would be divided among the sons equally once she passed. At that time Beverly wanted Dr. Roy to delete all allegations made by Kathy in her April 10, 2003 call. On May 29, 2005 Beverly informed Mark of her intention to sever her relationship with him and Kathy.
[31] In mid-August of 2005, Beverly met with Donna Guidolin to instruct her on a new Will. Rick drove Beverly to the appointment. Beverly brought with her a list of assets and her old Will. Ms. Guidolin met with Beverly alone to obtain instructions. On the request of Rick, Dr. Roy confirmed on September 9, 2005 that Beverly was competent based on her knowledge of her and the fact that Beverly was only at the very early stages of the working diagnosis of Alzheimer’s. On October 27, 2005 Ms. Guidolin also commissioned a sworn statement from Beverly explaining why she excluded Mark from the Will. The letter listed reasons for the disinheritance, including the reporting of Rick to the police for elder abuse and the feeling of being called a liar by the officer; Mark’s unwillingness to back down and her impression that Mark’s response was a definite “It will never be over”; and Kathy’s call to the doctor with a “pack of lies”, including that Beverly was no longer driving and should see a psychiatrist, and that Rick has had previous problems with the police. Beverly felt that Mark and Kathy had pre-planned years ahead of time to contact her doctor and claimed to have found a note dated in 1998 with Mark’s handwriting made out to Dr. Wynnchuk.
II. Rick and Randy have proved testamentary capacity on a balance of probabilities
[32] Mark did not challenge Beverly’s testamentary capacity on three of the five criteria set out in Banks. Specifically, Mark conceded that Beverly understood the nature of a will and its effect; she was capable of evaluating the claims of those who might expect to benefit from her estate; and she was capable of communicating a clear and consistent rationale for the distribution of her property on her death. He does challenge her knowledge of assets and alleges that insane delusions affected her will making.
[33] The parties engaged Drs. Shulman and Sadavoy to conduct retrospective capacity assessments of Beverly largely relying on the evidence presented at trial. From a medical perspective, both agreed that Beverly understood her assets at the time of instruction. Ms. Guidolin indicated that Beverly arrived with a list of assets. On cross-examination much focus was on the list of assets Beverly provided to Mark in 2002 and the more truncated version provided to Ms. Guidolin including a comment that Rick took care of most of the finances. I find that Beverly had sufficient knowledge of her assets to instruct counsel. The real issue is whether she suffered from insane delusions about Mark and Kathy’s actions. I conclude that she did not.
[34] This challenge is based on the requirement, first stated in 1870 in Banks at p. 565, and applied since, that if a person suffers from delusions that interfere with her or his ability to make a “rational disposal of property” then the testamentary disposition cannot stand:
If the human instincts and affections, or the moral sense, become perverted by mental disease; if insane suspicion, or aversion, take the place of natural affection; if reason and judgment are lost, and the mind becomes a prey to insane delusions calculated to interfere with and disturb its functions, and to lead to a testamentary disposition, due only to their baneful influence - in such a case it is obvious that the condition of the testamentary power fails, and that a will made under such circumstances ought not to stand.
[35] Mark contended that Beverly’s insane delusions about things Mark and Kathy had done influenced her testamentary dispositions, in circumstances where Beverly’s beliefs had no factual basis in reality.
A. What is a Delusion?
[36] I qualified Drs. Shulman and Sadavoy as geriatric psychiatrists to speak to the concept of insane delusions. Dr. Shulman and Dr. Sadavoy both testified, and I accept, that a delusion is a fixed false belief that is out of keeping with one’s educational, cultural and religious background, and is incapable of being altered when shown to be unfounded. In Skinner, at p. 76, the Supreme Court stated that a “[d]elusion is insanity where one persistently believes supposed facts (which have no real existence except in his perverted imagination) against all evidence and probability and conducts himself however logically upon the assumption of their existence”.
[37] Mark’s position that Beverly harboured illusions that influenced her testamentary dispositions relied heavily on the decision of Cullity J. in Banton v. Banton (1998), 1998 CanLII 14926 (ON SC), 164 D.L.R. (4th) 176 (Ont. S.C.). In Banton, the testator did not leave anything to his children because he believed that he had been abused by them and that his family was not interested in him but only his wealth. Even though Cullity J. accepted that the testator genuinely held these beliefs, the Court also determined that these beliefs were contrary to all the evidence and were in conflict with what the testator must have known if not cognitively impaired. The Court concluded that the testator’s false beliefs were based on insane delusions, with the result that the proponent of the Will failed to discharge her burden of establishing testamentary capacity. Cullity J. stated that the distinction between a perceptively unkind decision to disentitle a beneficiary for seemingly insufficient cause and a delusion will depend on the circumstances of the individual case: Banton at para. 76.
[38] The Court in Banton stated, at para. 62, that insane delusions are “not limited to beliefs that are so bizarre that their content, by itself, evidences mental disorder”. Rather, the “delusions include beliefs whose extreme improbability is apparent only when the surrounding facts are known”. Cullity J. posed the approach to the analysis as follows, at para. 62: “In all cases where delusions of this kind are alleged to exist there will be a question whether the belief should be characterized merely as quite unreasonable, on the one hand, or as something that, in the particular circumstances, no one ‘in their senses’ could believe.”
[39] In Royal Trust, at paras. 67-74, Blishen J. conducted a survey of cases that had analysed whether a testator’s capacity was lost by reason of insane delusions: Wilson v. Churchmack, [1998] O.J. No. 3733 (Ct. J. (Gen. Div.)), at para. 197: “For a delusion to affect testamentary capacity it must so take over a testatrix’s mind that it governs the making of her will”; Re Barter, 1938 CanLII 266 (NB CA), [1939] 2 D.L.R. 201 (N.B. S.C. (A.D.)); Re McLeod’s Estate (1989), 1989 CanLII 9848 (NS SC), 94 N.S.R. (2d) 148 (N.S. Prob. Ct.), aff’d 1990 CanLII 2382 (NS CA), 95 N.S.R. (2d) 61 (N.S. C.A.); Re Schwartz, 1970 CanLII 32 (ON CA), [1970] 2 O.R. 61 (C.A.); Burge v. Burge (1989), 1989 CanLII 4913 (NL SC), 77 Nfld. & P.E.I.R. 58 (N.L. S.C. (T.D.)); Abrahamson Estate, Re (1994), 1994 CanLII 17058 (MB KB), 96 Man. R. (2d) 150 (Q.B.), aff’d 1995 CanLII 16380 (MB CA), 102 Man R. (2d) 233 (C.A.); Re Ward Estate, [1990] O.J. No. 819 (Ont. Ct. J. (Gen. Div.)); Royal Trust v. Ford, 1971 CanLII 139 (SCC), [1971] S.C.R. 831.
[40] As stated by our court in Slover v. Rellinger, 2019 ONSC 6497, 53 E.T.R. (4th) 60, at para. 310, “the thread that runs through these cases is that for a testator to be found incapable on the basis of insane delusions, the delusion must be shown to be false and fixed, that is incapable of explanation or rationalization, and it must have taken over the person’s will-making.” Anger or resentment based on a fact that exists is not enough. As noted in John E.S. Poyser’s text, Capacity and Undue Influence, 2nd ed (Toronto: ThomsonReuters, 2019) at p. 158, whether someone is operating under insane delusions is a finding of fact. A useful question for a trier of fact to ask herself is, Can I understand how a person in possession of their senses could have believed the fact or facts that has impacted the will-making?
[41] Neither Dr. Shulman nor Dr. Sadavoy in their multiple reports found Beverly to be suffering from medical or clinical delusions characteristic of illnesses like Dementia or Alzheimer’s. Both doctors agreed that MMSE testing does not examine decision-making capacity. Dr. Shulman in Reply to Dr. Sadavoy did explain the possibility of clinically recognized delusion in people with early Alzheimer’s, like Beverly. However, given that both doctors were conducting retroactive assessments which were therefore somewhat theoretical, and the fact that the actual treating doctors did not mention even the possibility of clinical delusions in or around the time of executing the Will, I place little weight on Dr. Shulman’s discussion in that regard.
[42] Both experts also opine on whether Beverly is suffering from insane delusions as that term is understood in the jurisprudence. While I found both doctors to be credible and their medical frameworks to be instructive, whether Beverly suffered from insane delusions in disinheriting Mark is a legal finding exclusively in the trial judge’s domain. The doctors reviewed the same material tendered at trial and drew their own conclusions about the interactions between Beverly and her sons, and her October 27, 2005 letter explaining the disinheritance. I place no weight on their analysis or conclusions in that regard.
[43] In my own review of the evidence, I conclude that Beverly was not suffering from insane delusions at the time she executed her Will. The best evidence the court has about Beverly’s intentions is her commissioned letter of October 27, 2005, which the parties spent a great deal of time on. Can I understand how a person in possession of their senses could have believed the fact or facts that impacted Beverly’s will-making?’ Categorically, yes.
B. Mark and Kathy’s allegation of elder abuse against Rick and reporting Rick to the police drove the disinheritance and has a factual basis
[44] Regardless of what Mark and Kathy’s intentions may have been, or how exaggerated or unreasonable Beverly’s reaction might have been, this reason for disinheriting Mark is firmly grounded in actual events that occurred. Beverly expresses, rightly or wrongly, that Rick did not deserve this treatment. The test is not whether Beverly uses hyperbole to discuss the situation (like stating that Mark, Kathy and the policeman would have been ecstatic if Rick had gone to jail). It is whether there is a factual basis for Beverly to have formed this view. The fact that Mark and Kathy could not change Beverly’s mind is also not a high enough threshold. It must rise to the level of something that no one in their senses could believe.
[45] Having heard from Mark, Randy and to a lesser extent Chris at trial, and having listened to the numerous audio recordings of conversations between Mark and Beverly, I might also add that the tendency to hold onto beliefs that can be countered by more reasonable and objective facts is a family trait. The Roes appear to be a passionate family who think and feel deeply about the issues that affect them. This is evident from the polarized views each had about the other brother’s motives with respect to the cottage. No rational explanation would satisfy Mark that Rick was looking to transfer the cottage while Beverly was alive to save capital gains tax later. Rick and Randy refused to believe that anything Mark did was for Beverly’s benefit rather than to pursue his desire to get unequal use of the cottage. Taking a rational bird’s eye view of the evidence, neither position is likely correct or at least not so clear cut. Yet Mark and Randy remain entrenched in these views as recently as this trial.
[46] Beverly also mentioned an April 9, 2003 phone call with Mark relating to Rick’s upcoming meeting with the Police. She wrote: “Mark, after speaking to you on the phone April 9th 2003 to ask you to call off Policeman Ron, that it was all over, Mark your response was a definite :it will never be over”!! At this time I informed you that I would go to the police station to support Rick on April 11th.” In the course of the trial I was directed to the audio transcript of this conversation where counsel pointed out that Mark never said “It will never be over.” However, when Beverly asked him to call it off, Mark said he could not. I agree that Mark did not use words that Beverly attributes to him in her October 27, 2005 letter. However, the test is not whether Beverly accurately remembers the conversation. The test is whether her belief has a factual basis. I find that it does. Beverly and Mark did have a conversation about Rick and the police. Beverly did ask Mark to stop. It is well within one’s contemplation that Beverly could have interpreted Mark’s response as being that the dispute will never be over. It may be wrong or more dramatic in Beverly’s mind than what actually happened. But that is not the test. There is a factual foundation to ground Beverly’s view, however wrong, irrational, hyperbolic, misunderstood or misquoted.
C. Kathy’s “Pack of Lies” drove the disinheritance and has a factual basis
[47] Another reason Beverly states for disinheriting Mark is that Kathy told her doctor that she was no longer driving. Again, the issue is not whether or not this is true. The issue is whether this belief is grounded in some fact. And indeed, it is. There was a note in Dr. Roy’s file that Kathy had called on April 10, 2003. In that note Dr. Roy wrote “mother doesn’t drive?” Beverly received a copy of this note and interpreted. She is entitled to be incorrect, irrational or wrong in her interpretation, but her misunderstanding that Kathy said she was not driving does not rise to the level of an insane delusion. Further, this is the same misunderstanding Beverly had in 2003 when by Mark’s own admission in a letter dated September 30, 2003 to Dr. Wynnchuk, Beverly had full mental competence. Mark and Kathy tried to persuade Beverly in 2003, when she was admittedly competent, that she was mistaken about both what Kathy said and their intentions. But to no avail. Beverly’s position in August of 2005 was no different than her position in 2003. Her position in 2005 was no more delusional than her position in 2003.
[48] In her explanation of the disinheritance, Beverly also cited the fact that Kathy told the doctor that Beverly should see a psychiatrist for counselling. There is no dispute that Kathy did speak with Dr. Roy about psychiatric counselling/assessment of Beverly, albeit due to Kathy and Mark’s allegations of elder abuse by Rick.
[49] The biggest lie of all Beverly wrote was that Rick had trouble previously with the police. Again, the question is not whether or not that statement was true. There is a factual basis for Beverly to conclude, however irrationally or unreasonably, that Mark and Kathy were trying to frame Rick. They reported him to the police which in Beverly’s mind, was unwarranted.
[50] Finally, much was made of Beverly’s final reason which was that Mark and Kathy had been pre-planning to contact her doctor to cause trouble years ago because of a note that she said she had found from 1998 in Mark’s handwriting. By this point, Beverly clearly mistrusted Mark and saw everything through that lens. While unfortunate, her view is grounded in the history of the family relationships and relationship with Mark, especially after 2003.
[51] In any event, Rick and Randy’s burden is to persuade me that it is more likely than not that Beverly was not operating under insane delusions when she disinherited Mark in the Will. They have done so. Notwithstanding the suspicious circumstances of Beverly’s Will execution, she had testamentary capacity and was not operating under insane delusions when she disinherited Mark.
III. Mark has not established on a balance of probabilities that Rick exercised undue influence over Beverly when she executed the Will
The Doctrine of Undue Influence
[52] The doctrine of undue influence was developed “not to save people from the consequences of their own folly but to save them from being victimized by other people”: Geffen v. Goodman Estate, 1991 CanLII 69 (SCC), [1991] 2 S.C.R. 353 at p. 368, per Wilson J. citing Allcard v. Skinner (1887), 36 Ch. D. 145 (E.W. C.A.), at pp. 182-183. The doctrine of undue influence will intervene and set aside arrangements when the testator’s volition is dominated by another person, with the result that the person really did not express her mind: Geffen, at p. 377; Craig v. Lamoureux (1919), 1919 CanLII 416 (UK JCPC), 50 D.L.R. 10 (P.C.), at p. 15. In this case, Mark argues that Rick’s dislike of Kathy and Mark, his abusive behaviour towards everyone including Beverly and Beverly’s dependence on him should lead me to conclude that Rick unduly influenced Beverly to disinherit Mark. While it is clear that Rick, Mark and Randy went to great lengths to influence their mother over the handling and disposition of many of her assets including the cottage, I do not find that she was unduly influenced by Rick to disinherit Mark.
[53] One of Mark’s theories was that Beverly was subject to elder abuse by Rick and therefore subject to his volition. I qualified Dr. Burnes as an expert in elder abuse to testify. According to Dr. Burnes, the definition of elder abuse is “intentional action/behaviour toward an older adult by a person in a relationship involving an expectation of trust, which causes harm or creates a risk of harm, whether or not harm was intended.” Strong factors that increase the probability of elder abuse are when a person has the following characteristics: an individual older adult, trusted other, older adult dependency on trusted other for care or assistance with activities of daily living, the existence of family disharmony, shared living environment and low social support or social isolation. Dr. Burnes concludes that based on the existence of some of these characteristics, Beverly was vulnerable to elder abuse. I found Dr. Burnes credible, but his opinion is only as valuable as the facts that he assumes. Based on my understanding of the evidence, I disagree with his assessment although he provided a useful framework for my assessment.
[54] First, Dr. Burnes placed weight on the fact that Beverly displayed mild cognitive impairment in early 2005 and was diagnosed with early Alzheimer’s in July of 2005 (which was in fact diagnosed in April of 2005). He then jumps to Dr. Roussev’s notes about her condition in 2008, long after the Will was done, when Beverly’s status had declined, and she did not leave her home alone out of concern that she might not find her way back. Beverly’s condition in 2008 is not relevant to whether her status as an individual older adult increased the risk of elder abuse in 2005. In fact, the opposite is true. Beverly was a feisty matriarch who knew exactly what was happening with herself and her family prior to and in August of 2005.
[55] Next, Dr. Burnes indicated that the mere fact of an elderly person living with an adult child increases vulnerability and susceptibility to abuse. In this case, the facts do not support an inference that Beverly was susceptible to Rick. Despite her own complaints about Rick, she had lived with him for his entire life and there is nothing to suggest that, though difficult, he was someone she could not handle or particularly wanted handled by others. I accept Mark’s evidence that Rick would make it difficult for Mark and Kathy to contact Beverly. However, as apparent was the fact that Beverly simply worked around Rick. During the transfer process of the chalet to the sons, Rick wanted Beverly to sign a letter that she did not understand. Beverly simply refused. In 2005, there was nothing about Beverly living with Rick per se that made her vulnerable. She commented to Mark that Rick sometimes yelled and got angry with her. However, Randy also testified that Beverly sometimes felt exasperated and pressured by Mark and felt that Rick was very helpful. I accept both Mark and Randy’s evidence about their mother’s complaints. She had complaints about the behaviours of her sons at different times. Such is the nature of family. I do not accept that Rick was abusing Beverly.
[56] Dr. Burnes also places great weight on the home environment and the shared living arrangement. On paper, I understand that this could be a risk factor. However, on the facts of this case, I do not find that Beverly was particularly vulnerable. Beverly and Rick had a symbiotic relationship that seemed to work. It was not without its problems, but as I have noted before, the evidence shows that Beverly has lived with Rick his entire life and was able to manage him. The fact that she complained about him to Mark from time to time does not change my evaluation. Beverly complained about Rick to Mark and about Mark to Rick and Randy. It was part of the family dynamic to voice issues and speak in hyperbole. Beverly had a good social life with friends and had a relationship with Randy and Chris while distanced from Mark. Objectively, neither the police nor Ellie Sheridan took the matter further. She was not an isolated elderly person entirely dependant on a tyrannical adult child as Mark had Dr. Burnes believe.
[57] On the evidence presented and the facts I have found, it is fathomable that amidst a battle amongst her sons, Beverly decided to protect one from the other, regardless of how terrible Rick might have been from time to time, or how wrong or unjust the situation was to Mark. Beverly had threatened disinheritance in 2004 if her boys went against her wishes at a time when no one challenged her capacity. It is fathomable that Beverly chose to follow through in August of 2005, as she was entitled to do. Mark has not persuaded me that it is more likely than not that, as a result of Rick’s dominance, Beverly did not express her own mind in the 2005 Will.
Conclusion:
[58] For the foregoing reasons, I dismiss the application and gift action. I dismiss the latter on the basis canvassed with the parties by Myers, J. that Mark has no standing to challenge the inter vivos gifts to his brothers if he is not a beneficiary under the Will.
Costs:
[59] The parties shall contact my assistant Roxanne.Johnson@ontario.ca to arrange for a case conference to discuss the issue of costs.
P.T. Sugunasiri J.
Released: October 14, 2022
COURT FILE NO.: CV-04-90/14
DATE: 20221011
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE ESTATE OF BEVERLY GRACE ROE, Deceased
ROBERT MARK ROE
Applicant
– and –
RICHARD THOMAS ROE, RANDALL SCOTT ROE and RAYMOND CHRISTOPHER ROE, in their capacity as Estate Trustees of the Estate of Beverly Grace Roe, Deceased and RICHARD THOMAS ROE and RANDALL SCOTT ROE, in their personal capacity
Respondents
AND
Court File No: 05-121/16
IN THE ESTATE OF BEVERLY GRACE ROE, Deceased
BETWEEN:
ROBERT MARK ROE
Plaintiff
-and-
RICHARD THOMAS ROE, RNDALL SCOTT ROE and RAYMOND CHRISTOPHER ROE, in their capacity as Estate Trustees of the Estate of Beverly Grace Roe, Deceased, and in their personal capacity
Respondents
REASONS FOR JUDGMENT
P.T. Sugunasiri J.
Released: October 14, 2022