COURT FILE NO.: CV-19-379
DATE: 2022/10/19
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Cory Riddle, Applicant
AND
Barbara Nielsen as Executor of the Estate of Larry Riddle, Barbara Nielsen personally and Judy Riddle, Respondents
BEFORE: Madam Justice Robyn M. Ryan Bell
COUNSEL: Kurt R. Pearson and Sarah E. Naughton, for the Applicant
Barbara Nielsen, self-represented Respondent
No one appearing for the Respondent Judy Riddle[^1]
HEARD: October 3, 2022
ENDORSEMENT
Overview
[1] On this application, Cory Riddle seeks a declaration that the purported last will and testament of the late Larry Riddle dated May 17, 2019 is invalid on the basis that the document could not have been executed by Larry.[^2] Larry suffered a major stroke nine weeks prior to the date the document was signed. Cory submits that the profound nature of Larry’s impairment rendered it impossible for him to have executed and initialed the document. Cory relies on an expert medical opinion in support of his position.
[2] Barbara Nielsen was Larry’s common-law partner for many years. She submits that Cory’s application is motivated by “malice and hate” and that he has provided insufficient evidence to support his application. In particular, Barbara discounts the medical opinion upon which Cory relies because the doctor was not Larry’s treating physician.
[3] For the following reasons, the application is allowed. An order will go declaring that the May 17, 2019 will is invalid.
Facts
[4] Cory is Larry’s son. Larry’s other children are Shelley Mastin, Jody Riddle,[^3] and Lacey Riddle. Shelley filed an affidavit in support of Cory’s application.
[5] Larry and Barbara were in a common law relationship from 2000 until Larry’s death in June 2019.
[6] On March 8, 2019, Larry and Barbara left their home for a holiday in Myrtle Beach. Three days later, while in Myrtle Beach, Larry suffered a stroke, a heart attack, and a seizure. He underwent two surgeries and remained in hospital in Myrtle Beach for three weeks until his condition stabilized enough so that he could be transferred to Kingston.
[7] On April 1, 2019, Larry was transferred by ambulance to Kingston General Hospital (“KGH”). Larry did not leave the hospital until his death on June 12, 2019. For most of the period of his hospitalization in Kingston, Larry remained in the ICU.
[8] Mr. Crowe, a lawyer, was cross-examined in connection with this application. His evidence is that, about two weeks before Larry and Barbara left for Myrtle Beach, Larry provided him with instructions to prepare a will. No plans were made for the execution of the will.
[9] In late April 2019, Barbara picked up the draft will from Mr. Crowe’s office. Mr. Crowe did not attend at KGH with Barbara to have the will executed by Larry; Mr. Crowe instructed Barbara as to how the will and the powers of attorney should be signed. Mr. Crowe was unaware of the extent of Larry’s medical condition beyond the fact that he was being treated in hospital for some heart issues. He did not make inquiries of Barbara as to whether Larry had the physical ability or the capacity to sign the will.
[10] Barbara’s evidence is that, on May 17, 2019, Larry signed his name on and initialled each page of the disputed will. The witnesses to the will were Brenda Anne Cliffe-Garon and Joy Amey. Both provided affidavits and were cross-examined. According to Barbara, Larry also signed a power of attorney for property and a power of attorney for personal care on May 17, 2019.
Analysis
[11] Section 4(2) of the Succession Law Reform Act[^4] provides:
Subject to subsection (3) and to sections 5 and 6, a will is not valid unless,
(a) at its end it is signed by the testator or by some other person in his or her presence and by his or her direction;
(b) the testator makes or acknowledges the signature in the presence of two or more attesting witnesses present at the same time; and
(c) two or more of the attesting witnesses subscribe the will in the presence of the testator.
[12] To meet the requirements of s. 4(2) of the Succession Law Reform Act, the onus is on the propounder of the will – Barbara – to establish that Larry signed the will in the presence of the two witnesses, Brenda and Joy, who were present at the same time, and that the witnesses then signed in Larry’s presence: Vout v. Hay, at para. 19.[^5]
[13] Medical evidence can be relied upon with respect to the validity of the execution of a will: see Sware v. Welda Estate, at paras. 16, 36, and 54.[^6]
[14] Based on the expert evidence of Dr. Bagg and the hospital medical records, I cannot conclude that the signature on the will that reads “Larry J. Riddle” is Larry’s signature. I therefore find that the May 17, 2019 will is not valid.
[15] The medical records from KGH contradict and undermine the evidence given by Barbara, Brenda, and Joy. According to Barbara, on May 17, 2019, Joy arrived at KGH around 10:40 a.m., while Brenda arrived 20 minutes later. They stayed until 11:45 a.m. Barbara testified that no hospital staff came into Larry’s room from around 10:40 to 11:45 a.m. Brenda testified to the same effect, except “maybe one nurse came in to just check whether he needs suctioning.” Barbara, Brenda, and Joy testified that from 10:40 to 11:45 a.m., Larry was sitting up in bed, propped up on pillows, at about a 45-degree angle.
[16] The ICU flow chart from KGH for May 17, 2019 tells a very different story. According to the chart, from 10:30 to 11:25 a.m., Larry was on his left side. A nurse lifted Larry at about 11:25 to 11:30 a.m. Then, Larry was turned onto his right side from 11:30 a.m. to 1:00 p.m.
[17] As of May 17, 2019, Larry was suffering from “left-sided hemiparesis and aphasia.” It would have been impossible for Larry to sign documents while lying on his right side because his left side was completely paralyzed. Barbara’s evidence that Larry had the documents on his lap, on top of a book or magazine, is inconsistent with the ICU flow chart, in which it is recorded that Larry was on his left side, and then rotated to his right side. Brenda and Joy’s evidence that Larry had the documents on a table in front of him on the bed is inconsistent with Barbara’s evidence and the evidence in the ICU flow chart that he was resting on his side.
[18] The hospital records confirm that in the morning of May 17, 2019, a CAM test was completed for Larry. As Dr. Bagg explained, the purpose of a CAM test – during which a patient may be asked to squeeze a hand to answer “yes” or “no” questions – is to identify delusion in the patient. The notes from the 9:10 a.m. CAM test state: “[Larry] could not squeeze fingers for CAM questions appropriately.” The medical records evidencing Larry’s condition on May 17, 2019 are wholly inconsistent with Barbara’s evidence that Larry could pick things up, such as knife or fork, and brush his teeth.
[19] I turn to the expert medical evidence. I accept the opinion evidence of Dr. Bagg. Dr. Bagg is a specialist in Physical Medicine and Rehabilitation and the Head of the Queen’s University Department of Medicine and Rehabilitation. Dr. Bagg considered the alleged signatures on the will and the powers of attorney – all of which are clearly legible and on the signature line – having regard to Larry’s physical and cognitive health. Dr. Bagg also considered the alleged signatures in light of a sample of Larry’s handwriting from April 17, 2019. The April 17, 2019 handwriting is barely legible and is not written in a straight line. In Dr. Bagg’s opinion, given the nature and severity of Larry’s stroke, the evidence of Larry’s severely impaired handwriting on April 17, 2019, and concerns about delirium, it would have been impossible for Larry to have signed the will and the powers of attorney in such a legible fashion.
[20] Dr. Bagg also opined that Larry did not have the cognitive or physical capacity to sign his initials on the will and that,
[it] is extremely unlikely that Mr. Riddle’s condition fluctuated to the point that he was unable to write clearly on April 17, 2019 and then regain the ability to clearly sign his signature one month later on May 19, 2019.
[21] In fact, the hospital records confirm that Larry’s medical condition deteriorated between April 17 and May 17, 2019: on April 30 and again, about a week later, Larry was moved back to the highest level of ICU at KGH.
[22] Dr. Bagg also observed that although Larry’s most obvious neurological impairment was the very dense weakness in his left hemibody, CT scan reports taken at KGH describe ischemic damage that was much more widespread and affected both hemispheres.
[23] Because I am unable to find that the signature that appears on the will is Larry’s signature, I need not consider Cory’s alternative submissions regarding “suspicious circumstances” surrounding the alleged execution of the will or Larry’s lack of capacity.
Disposition
[24] The May 17, 2019 will is declared invalid.
[25] During the course of her submissions, Barbara requested that I “uphold” her position as estate trustee. Barbara has not been appointed estate trustee because Cory filed a notice of objection to her appointment on the basis that he disputed the validity of the May 17, 2019 will.
[26] Barbara also requested that information be provided to her relating to the Wilmer Road property and that the property be transferred from Judy’s estate to Barbara. As I explained to Barbara, these matters do not fall within the scope of this application.
[27] In the event the parties are unable to agree on costs of the application, they may make written submissions limited to a maximum of three pages. Cory shall deliver his costs submissions, together with his Bill of Costs, by November 2, 2022. Barbara shall deliver her responding costs submissions by November 16, 2022. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves.
Madam Justice Robyn M. Ryan Bell
Date: October 19, 2022
COURT FILE NO.: CV-19-379
DATE: 2022/10/19
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Cory Riddle, Applicant
AND
Barbara Nielsen as Executor of the Estate of Larry Riddle, Barbara Nielsen personally and Judy Riddle, Respondents
COUNSEL: Kurt R. Pearson and Sarah E. Naughton, for the Applicant
Barbara Nielsen, self-represented Respondent
No one appearing for the Respondent Judy Riddle
ENDORSEMENT
Justice Ryan Bell
Released: October 19, 2022
[^1]: At the hearing, counsel advised that Judy Riddle is now deceased. In 2000/2001, the Wilmer Road property, where Larry and Barbara resided prior to Larry’s death, was transferred into Judy’s name. There is some evidence from Cory on the application that Judy recognized Larry to be the actual owner of the Wilmer Road property. However, the legal or de facto ownership of the Wilmer Road property is not in issue on the application. [^2]: To avoid confusion, I have used first names throughout these reasons. [^3]: Jody Riddle is not the same person as the named respondent Judy Riddle. [^4]: R.S.O. 1990, c. S.26. [^5]: 1995 CanLII 105 (SCC), [1995] 2 SCR 876. [^6]: 1999 ABQB 79.