Cozza v. Venneri, 2022 ONSC 7053

COURT FILE NO.: 01-1524/17

DATE: 20221216

ONTARIO

SUPERIOR COURT OF JUSTICE

ESTATES LIST

BETWEEN:

Franco Cozza, Executor of the Will dated November 3, 2008

Plaintiff

– and –

Stefano Venneri, Executor of the Will dated October 12, 2016 and in his personal capacity

Defendant

Pellegrino Capone, counsel for the Plaintiff

Robert C. Watt and Dillon Shields counsel for the Defendant

-and-

Maria Cozza, Vincenzo Cozza, Fiorenza Cozza, John Reda, Daniel Reda and Guiseppe Venneri, Persons Submitting Right to the Court

HEARD: November 28-December 2, 2022

C. Gilmore, J.

INTRODUCTION

1This case is a Will Challenge to the Will made by Assunta Cozza (“the deceased” or “Assunta”) on October 12, 2016 (“the 2016 Will”) as well as a challenge with respect to the transfer of her home from her name to the joint names of her and the son of her deceased common law spouse, the Defendant Stefano Venneri (“Stefano”).

2Assunta died on October 28, 2016. The Plaintiff, her brother, Franco Cozza, (“Franco”) seeks to propound Assunta’s Will dated November 3, 2008 (“the 2008 Will”). In the event that Franco is successful, he seeks occupation rent from Stefano from March 1, 2017 to date, and enforcement of the No Contest clause in the 2014 Codicil which Franco submits disentitles Stefano from his share of the 2008 Will.

3In 2008 Assunta became ill and hospitalized for a period of time. She decided to make the 2008 Will. The family lawyer Franca Aqueci prepared the Will. There is no issue with respect to Assunta’s capacity to execute the 2008 Will.

4The 2008 Will named Franco as the Executor of Assunta’s Estate and left the residue to be divided in seven equal parts. The beneficiaries of the residue were Assunta’s sister Maria Cozza (“Maria”), her brother Vincenzo Cozzo (“Vincenzo”), her sister Fiorenza Cozza (“Fiorenza”), the children of her sister Rita Cozza (she did not leave anything to her sister Rita due to a past conflict), Gianni and Danny Reda, her brother Franco Cozza (“Franco”), Stefano’s brother Guiseppe Venneri (“Guiseppe), and Stefano. Maria, Vincenzo, Fiorenza, Gianni and Danny Reda and Guiseppe are noted as persons submitting rights to the Court. They have not filed any materials. Franco and Stefano are the parties to this litigation.

5In 2014 Assunta experienced more health difficulties. In August 2014 Assunta made a codicil to her Will giving Giovanni a life interest in her home at 277 Winona Drive in Toronto (“the Home”). If Stefano was still living with her at the time of her death and Giovanni predeceased her, Stefano was given the right to live in the Home for six months before it was sold so long as he paid all household related expenses.

6On June 9, 2014 Assunta transferred GICs totalling $247,322.95 to her siblings Franco and Fiorenza (“the impugned transfer”). Franco’s position is that these funds were a gift from Assunta to him and his sister Fiorenza. Stefano has made a Counterclaim in this case, asserting that Franco transferred the funds by misusing his Power of Attorney for Property and without Assunta’s knowledge. His Counterclaim seeks to have the transferred funds repaid to the Estate.

7By late 2015 Assunta had changed her position with respect to the impugned transfer and was convinced that her siblings had stolen the funds from her. This precipitated a further change in her Estate planning and the creation of the 2016 Will and POAs. The 2016 Will named Stefano as the Executor and sole beneficiary of Assunta’s Estate. On October 12, 2016 when Assunta signed the 2016 Will, she also signed a transfer of the Home into joint names with Stefano and new Powers of Attorney for Property and Personal Care (“the POAs”) naming Stefano as her Attorney for both. Assunta died on October 28, 2016.

8For the reasons set out below, the Plaintiff’s claim is dismissed. There is sufficient evidence of capacity to confirm Assunta’s ability to sign all of the documents in question. Further, while the reasons for the impugned transfer remain unclear, the evidence of capacity is such that the disputed reasons for the transfer are of little consequence. The Defendant’s Counterclaim must also therefore be dismissed.

BACKGROUND

9Assunta was born in Southern Italy in 1932. She did not read or write Italian or English. She spoke primarily Italian.

10Assunta was married to Luigi Coppola in 1960. Luigi Coppola died in September 1974 from an industrial accident. He left his wife a pension and the Home. In 1976 Assunta met Giovanni (the father of Stefano and Guiseppe) and in 1978 they began to live together. They never married or had any children. Assunta did not adopt Stefano or Guiseppe. Assunta and Giovanni lived together for 37 years until Giovanni died on April 15, 2015. Assunta died just over a year later on October 28, 2016 at age 84.

11Stefano viewed Assunta like a mother as his biological mother died when he was two years of age. Stefano and his brother lived in Italy with their grandmother during their childhood. After his father met Assunta he and his brother came to Canada and began living with his father and Assunta in or around 1978. He has remained in the Home since then. Stefano currently works for the TTC as a parts technician. He is a certified paralegal but has not worked in that field. His education as a paralegal did not include wills and estates.

12Guiseppe left the Home and married his wife Anna in 1991. Stefano has lived in the Home continuously since 1978. He has never married and has no children. While Giovanni and Assunta were alive, they paid for all household expenses using their pension and other income. After Giovanni died in 2015, Assunta paid for all of the household expenses. Stefano agreed that he had never contributed to the household expenses other than the cost of cable, some groceries and his car insurance after his father died. This was because he did not work after his father had his stroke in 2000. He became his father’s caregiver. As Assunta aged, he began to care for her as well.

13After Giovanni became ill in 2000, Stefano and Assunta cared for him for 15 years until his death. Neither were employed in any other capacity as Giovanni was bedridden and eventually required 24-hour care. Stefano remained in the Home after Assunta’s death and still resides there. After his father died in 2015 Stefano inherited a condominium. He does not live there but rents it to tenants.

14In 2005 Assunta made a POA for Property and named Franco and Stefano jointly as her Attorneys.

15In 2008 Assunta was hospitalized and decided to arrange her affairs. The 2008 Will was eventually signed as a result.

16In June 2014 Assunta went to her CIBC branch with her siblings Franco and Fiorenza. She transferred GICs totalling $247,322.99 to them. There is no dispute about the amount that was transferred. The dispute relates to why it was transferred; that is, was it a gift intended to thank her siblings for their support over the years, was it transferred to Franco and Fiorenza for safekeeping, or was it done wrongfully by Franco using the POA for Property he held at that time.

17Later in 2014 Assunta was again hospitalized. She was concerned about what would happen to Giovanni if she predeceased him. Given this concern she returned to her lawyer to draft the August 2014 codicil to her 2008 Will.

18By May 2015, Assunta became convinced that her siblings had stolen the GIC amount from her. Dr. Shulman determined in his retrospective assessment that it was likely that Assunta was suffering from a delusion about this issue and had become fixated on an incorrect narrative due to her memory issues caused by Small Vessel Disease.

19In November 2015 Stefano was added as a joint account holder on all of Assunta’s accounts. Two TFSA survivorship designations were changed from Assunta’s Estate to Stefano.

20On November 19, 2015 Stefano took Assunta to her family doctor, Dr. Pinto for a cognitive examination because her lawyer suggested having her assessed before a new Will and POAs could be done for Assunta.

21Dr. Pinto referred Assunta to an experienced geriatrician, Dr. Marotta. On April 4, 2016 Dr. Marotta conducted an assessment and found that Assunta had the requisite capacity to sign a new Will and POAs. Dr. Marotta’s report dated June 28, 2016 states that the triggering event for the assessment was that Franco had stolen $250,000 from her and she wanted to change her Will and POA as a result. Dr. Marotta did not take steps to corroborate whether this fact was true, nor did he qualify his conclusions on that basis.

22Assunta met with her lawyer Mr. Colavita on three occasions. He relied on Dr. Marotta’s capacity assessment and his own observations to confirm that Assunta had capacity to sign the Will and POA and to transfer the Home into joint names on October 12, 2016. The Cozza family did not learn of the new Will until the evening of Assunta’s death.

THE ISSUES

The Impugned Transfer

23Ms. Nancy Tiralongo gave evidence about the impugned transfer on behalf of CIBC. She is a bank manager with CIBC and has worked with them for 50 years. She has been a manager in the St. Clair and Dufferin area for over 25 years. She supervises 33 employees across three separate branches.

24Ms. Tiralongo speaks Italian and English. She testified that many of her clientele are elderly and Italian speaking. She assisted Assunta with the transfer of funds to her siblings because she could understand Assunta’s Italian dialect.

25Ms. Tiralongo testified that she recalled Assunta, Franco and Fiorenza coming to her branch on June 9, 2014. When Assunta told staff that she wanted to cash her GICs and transfer funds to her siblings, Ms. Tiralongo was notified as CIBC protocol required that a manager become involved for large transfers. Ms. Tiralongo was introduced to Assunta and her siblings. She then asked Assunta to come into her office for a private meeting. She wanted to ensure that Assunta was not being forced into the transfer and that she understood that once completed, the transfer was not reversible.

26Ms. Tiralongo listened while Assunta told her about her life and how her husband had tragically died in a construction accident. She received a settlement from the accident and told Ms. Tiralongo that she wanted to ensure that the money from her husband’s “blood” went to Franco and Fiorenza who had supported her throughout her difficult life. Ms. Tiralongo described a teary Assunta who talked about meeting Giovanni and looking after him and his sons who moved into her home. She told Ms. Tiralongo that she had never had any luck. She had to look after Giovanni when he became ill in 2000 and also his son Stefano who was lazy and did not work.

27After this interview, Ms. Tiralongo was satisfied that Assunta knew what she was doing and that she understood the finite consequences of the transactions. She was certain that Assunta wanted to gift the money to her siblings and that she had not been coerced into doings so. Branch staff opened a joint account for Franco and Fiorenza into which the proceeds of the GICs were deposited. Ms. Tiralongo testified that she met with Assunta personally for about 25 minutes, but she and her siblings were in the branch for about 1.5 hours while all the paperwork was completed. She never saw Assunta or her siblings again after that day.

28Ms. Tiralongo told the Court that she did not keep any notes of her meeting with Assunta. This is not something she would normally do with such a client. However, this interview stood out in her mind because of Assunta’s insistence that her siblings Franco and Fiorenza be gifted the money she received from her husband’s blood. Ms. Tiralongo conceded that she did not ask Assunta about her health conditions or whether she had other siblings. She had no doubts about the clarity of Assunta’s intention to transfer her GICs in the amount of $247,322.99 to her siblings.

29Ms. Tiralongo was asked why her statutory declaration did not contain any reference to wanting to gift her husband’s “blood money” or her complaints about Stefano. She explained that CIBC counsel had drafted her statutory declaration and decided what should form part of that document based on interviews with her.

30The Plaintiff Franco Cozza gave evidence that aligned with that of Ms. Tiralongo with respect to the meeting at the bank on June 9, 2014. He told the Court that he was asked by his sister to meet him and his other sister Fiorenza on that date at the CIBC Branch where Assunta did her banking. Assunta had told him that she wanted to straighten a few things out before she died. Franco did know how much money was at stake at that point.

31All three of them met with the manager and then the manager met with Assunta on her own. Franco recalled that Assunta was in with the manager for quite some time while he and Fiorenza waited outside. They could not hear what Assunta and the manager were saying.

32Franco told the Court that he and his sister Fiorenza opened a joint account into which the funds from Assunta were deposited. He does not recall any discussion about the funds being her deceased’s husband’s “blood money” but he did recall Assunta saying that she was happy about giving her siblings the money because it was money she did not need, and she wanted to make this gift to them before she died. After the meeting on June 9, 2014 Franco and Assunta never spoke of the funds transfer again.

33Franco was not aware of how much money Assunta had and confirmed she was in charge of her own affairs. He never thought to ask her if she would have enough money left if she gave the money to him nor did he ask her why only he and Fiorenza were receiving money and not their other siblings. The gifted funds had nothing to do with Assunta’s Will as far as Franco knew. Franco testified that he had kept his share in the account until Assunta’s death. After that, he used it to pay his legal fees for this case so he could clear his name with respect to the alleged theft of the funds.

34Franco gave evidence that the funds were never given to him for safekeeping by his sister because someone was trying to take money from her. He denied meeting with Stefano in 2015 to discuss the transfer and telling Stefano that he was concerned that his sister was vulnerable and he was trying to protect her assets. He denied that Stefano told him he should call the police if he was concerned. He further denied receiving any request from Stefano for funds from the transferred funds to buy a new car when the family van broke down. His evidence was that he did not learn about the allegation that the money had been stolen from Assunta by him using his Power of Attorney for Property until a meeting at the funeral home with Stefano after Assunta’s death.

35Stefano told the Court that he was not aware of the impugned transfer until 2015. He always did Assunta’s income tax returns for her. By May 2015 he had not yet received a T5 for the interest on Assunta’s GIC account. This prompted Stefano to take Assunta to the bank to make enquiries. He and Assunta were directed to Ms. Tiralongo who told them that the money had been moved out of the account. She would not give details of the transaction to Stefano. Stefano did not arrange for Assunta to speak to Ms. Tiralongo alone. Stefano denied the interaction recounted by Ms. Tiralongo in which he stormed into her office and allegedly said he would sue her. He had never heard the term “blood money” used by Assunta.

36Stefano was directed to his Statement of Defence in which he pled that Franco had made the impugned transfer using the 2005 Power of Attorney. Stefano was uncertain where he obtained that information. At trial his evidence was that no POA was used to transfer the funds.

37Stefano asked Franco about the account several weeks after he went to the bank to enquire about the missing T5. Franco told him he thought someone was trying to get at Assunta’s money, so he transferred it out of the account for safekeeping. Stefano told Assunta and did not make further enquiries. Assunta seemed satisfied that Franco would take care of the money. Stefano denied ever suggesting to Assunta that Franco had stolen the money or that he used his POA for Property to facilitate such a transfer.

38However, things changed when the family van broke down and Assunta called Fiorenza and asked for money for a new car. Fiorenza told Assunta that Frank would not give her funds for a new car. Assunta became very upset about this. Stefano then leased a car in his own name with his brother as co-signer. Stefano’s evidence was that it was at this point that Assunta began to believe that Franco had stolen her money. Some time after that Assunta decided she wanted to give her house to Stefano.

39Stefano was asked why he did not make a claim against Fiorenza since Assunta’s alleged conversation about the request for funds for a car purchase was with her. It was suggested to him that he simply made this up. He denied this and told the Court that Franco came over to the Home about a month later and told Stefano he had secured the money. He told Franco that if he was concerned about someone taking Assunta’s funds he should have called the police. According to Stefano, Franco simply shrugged. Franco’s evidence was that he never heard anything about an alleged theft of funds until the evening of his sister’s death.

Assunta’s Medical Issues

40Assunta’s nephew Frank Menotti gave evidence. He was very close to his aunt and from a young age helped her to translate, write cheques, do banking and assisted in taking her to medical appointments. Once Giovanni died in 2015, Stefano took over many of these tasks although Frank continued to visit his aunt about twice a month and call her often. Frank admired his aunt’s devotion in caring for Giovanni after his stroke in 2000.

41Frank described Stefano as giving him the “cold shoulder” after Giovanni died when he came over to visit his aunt. He was resentful about the way that Stefano scolded his aunt about her cooking and other matters related to her declining cognition. Stefano denied these allegations and testified that the Home was open for family visits just as it had always been. He stated that he had always got along with Assunta’s family including her siblings and her many nieces and nephews. There were no conflicts.

42Frank told the Court that his mother (Fiorenza) and his aunt were very close and lived about three blocks apart. Frank’s father passed away when he was 18 so his mother and aunt were both widows for many years and spent a lot of time together.

43Frank recalled that his aunt had a health problem in 2008 which resulted in her being hospitalized for a week. She wanted to arrange her affairs and asked Frank to take her to an appointment with the family’s long time lawyer Franca Agueci who Assunta always referred to as Francesca. Her office was only a few blocks away from the Home.

44Frank told the Court that his aunt was hospitalized between 2014 and 2016 multiple times. In the summer of 2014 she had a minor stroke. Assunta’s mind again turned to the organization of her affairs. She asked Frank to make an appointment with Ms. Agueci. The 2014 codicil was the result of that appointment.

45Franco told the Court that he thought his sister had become somewhat depressed because of the large responsibilities involved in caring for Giovanni. After his death, he described her condition as “going backwards.” She was no longer able to take care of her own money and Stefano had to accompany her and take her to appointments. After Franco sold his business, he began to work at a supermarket not far from the Home. He continued to visit his sister at the Home a few times a month. It was hard to carry on a conversation with her at that point. They mostly talked about gardening.

46After her stroke in 2014 and the loss of Giovanni in 2015, Frank told the Court that his aunt really slowed down. She had problems dressing and sometimes left the phone off the hook. She no longer walked to do her shopping and mixed up cooking ingredients. Sometimes she left pots on the stove. His mother often had to help her and became concerned when Assunta left the phone off the hook for long periods of time. Stefano did not disagree that Assunta became confused at times and on occasion he would call Fiorenza or Frank for assistance.

47After Giovanni died Frank agreed that Stefano became his aunt’s caregiver and took over many things that he used to do for his aunt when Stefano had been his own father’s caregiver. Stefano’s evidence was that Assunta was very independent although after Giovanni’s death he began to help her more with banking and cooking. Most of her bills were paid via automatic withdrawal. After his father’s death, Assunta no longer received his WSIB pension. She and Stefano lived off her pensions, savings and RRIF payments. He took her to all of her medical appointments after his father’s death.

48By the beginning of 2016 Frank described his aunt as being in a “daze.” At a family wedding in September 2016 his aunt arrived over an hour and a half late because she could not find her house keys. When she arrived she barely spoke or ate. Frank’s wife Luciana had to spoon feed her dinner. Franco recalls seeing his sister at the wedding and told the Court she was not the person she had been. A few weeks after this while Stefano was away in Italy, Assunta mixed up medications and once again ended up in hospital.

49Frank visited his aunt just after Thanksgiving on October 11, 2016. His aunt could not remember what she ate at Guiseppe’s house for Thanksgiving dinner or if his daughters were there. She was confused and had trouble finding things in her own kitchen.

50On October 24, 2016 Assunta was once again admitted to hospital. However, this time was different. Her doctor advised she had a brain bleed and would not recover. Fiorenza gave the Do Not Resuscitate instructions and Assunta was taken off all machines. She was moved into a ward and all of the family gathered. She passed away on the evening of October 28, 2016.

51When the subject of funeral arrangements came up, Stefano announced for the first time that there was a new Will.

The Wills

52Frank recalled that his aunt suffered from some heart issues in 2008 and was taken to hospital. After this incident she asked Frank to take her to the Cozza family lawyer so she could arrange her affairs. Frank took his aunt to the initial interview and signing appointment for the 2008 Will. He gave a copy of the Will to his uncle Franco.

53Frank was asked if he was aware of whether Assunta received anything under Giovanni’s Will. Frank was aware that she had not, but he was not surprised. He knew that his aunt and Giovanni kept their financial affairs separate. Stefano’s evidence was that he received a family property in Italy originally owned by his birth mother from his father’s estate. The property was transferred into the joint names of him and his brother.

54Franco was aware that he was the Executor under the 2008 Will. He was also aware of the distribution of her Estate including the fact that each of Stefano and Guiseppe would receive a 1/7 share. He acknowledged that the beneficiaries under the 2008 Will would receive less than they would have if his sister had not transferred the GIC funds to him and Fiorenza in June 2014.

55Assunta suffered from another stroke in 2014. Shortly after that she asked Frank to make another appointment with the family lawyer so she could do a codicil to the 2008 Will. She was concerned about what would happen if she predeceased Giovanni so she had her family lawyer prepare a codicil to the 2008 Will which gave a life interest in the Home to Giovanni if he survived her. Once Giovanni died, Stefano would be permitted to stay in the Home for six months before it was sold so long as he paid all of the expenses.

56Stefano’s evidence was that in 2016 Assunta remained upset about the impugned transfer. She told Stefano she wanted to leave him the Home. Stefano testified that he did not pressure Assunta to make a new Will and POAs and he suggested to her that her family be involved with the process to change those documents.

57Stefano’s evidence was that one of Assunta’s nieces arranged an appointment with a lawyer, Daniel Boiani. Stefano testified that Assunta met with Mr. Boiani for 20 minutes and paid him $100. He cannot recall when this meeting took place but knew it was after the meeting with Ms. Tiralongo at the bank in May 2015. After the meeting with Mr. Boiani Assunta came out with a print-out of Mr. Colavita’s web page and Mr. Boiani’s card. According to Stefano, Mr. Boiani told him he did not do real estate and suggested that Assunta undergo a capacity assessment before any new Will was done. This evidence was disputed by the Plaintiff who said that Mr. Boiani had no such records and the niece had refused to testify.

58I do not think that this point is of great relevance. Ultimately, Assunta was taken to meet Mr. John Colavita, whether it was because she was referred to him by Mr. Boiani or not is likely of little consequence. Mr. Colavita was not a lawyer that Stefano knew or specifically recommended.

59Stefano’s evidence was that after Assunta spoke with Mr. Boiani he took her to her family doctor, Dr. Pinto, in November 2015. The purpose of the visit was to obtain a referral for the capacity opinion suggested by Mr. Boiani. Dr. Pinto then made a referral to Dr. Marotta. Both Assunta and Stefano knew Dr. Marotta as he had been Giovanni’s geriatrician. Stefano agreed that there was no note to confirm that Mr. Boiani had recommended an assessment for Assunta before she made any changes to her Will.

60Stefano testified that Assunta met with Mr. Colavita three times. Stefano sat in on the initial discussions in the first meeting in order to assist with the background information. He was then asked to leave so that Mr. Colavita could meet with Assunta alone.

61Stefano told the Court that Assunta was determined that he was to be left the Home. His intention was to continue to live with Assunta and even if being a joint tenant legally included the right to force a sale of the Home, he would never have taken such a step. He intended to continue caring for Assunta and living in the Home with her until her passing. Stefano confirmed that he never put any pressure on Assunta to make a new Will nor did he ever act on either of her POAs.

62Stefano was asked why he supported a change to the Will that would disenfranchise all of the other beneficiaries including his own brother who had two children. Stefano’s response was that it was Assunta who wanted the change, not him. His brother was much older than him and he had come to live with Assunta when he was only 11 years of age. His brother was already 18 when he came to Canada.

63During an emotional point in his evidence, Stefano told the Court that Assunta told him he was the son she never had and that she wanted him to have the house. Stefano told the Court that he disagreed with Ms. Tiralongo’s statement that Assunta thought he was lazy, did not work and that she had had to look after him. Stefano’s evidence was that Fiorenza, Franco, Rita and Guiseppe all knew the house was being transferred to him. He agreed that they did not know about the new Will. He could not recall why although he agreed that he did not tell Franco about the new Will until he came over to the Home after Assunta’s death.

64Mr. Colavita is an Ontario lawyer in good standing who practices in the area of wills, estates, real estate and small corporate/commercial transactions. He is fluent in Italian and spoke to Assunta in Italian during their interviews. He was aware that Assunta did not speak or write English other than at a basic level. Mr. Colavita made notes of each meeting he had with Assunta and was questioned on those notes.

65Mr. Colavita’s evidence was that the first time he met Assunta and Stefano was on June 7, 2016 for approximately one hour. He deposed that Stefano called him to set up the appointment because Assunta wanted to change her Will and POAs. Stefano provided his contact information. Contact with Assunta was always made through Stefano at Assunta’s request.

66Mr. Colavita’s evidence was that he permitted Stefano to remain in the room for the initial interview because he wanted to know why Assunta trusted him so much and why she agreed to let him remain in the room for the entire interview. In short, he wanted to understand the dynamic between the two of them. This is contrary to Stefano’s evidence which was that he was asked to leave the interview after providing background information.

67At one point during the interview Stefano told Mr. Colavita in English that Assunta wanted to transfer the Home into joint names. Assunta confirmed in Italian that she wanted to leave the Home to Stefano. Mr. Colavita explained some options in this regard including leaving the Home as part of her Estate or transferring it into joint names. He advised of the benefits of a joint tenancy including saving money on Estate Administration Tax.

68Based on Stefano’s estimate that the house was worth $800,000 at the time, Mr. Colavita advised that $12,500 in Estate Administration Tax would be saved. He also explained that if Stefano pre-deceased Assunta, the house would revert back to her. He did not have a discussion with Assunta about Stefano’s rights as a joint owner with respect to a possible forced sale of the Home. He did not think this was necessary given Assunta’s clear intentions. He agreed in cross-examination that Assunta was not gifting the Home to Stefano, but that she intended to remain there for the rest of her life and that it would pass to Stefano on her death.

69Mr. Colavita explained to Stefano and Assunta the meaning of transferring the Home from a sole to joint tenancy. Stefano testified that he would never have taken steps to sell the house while Assunta was alive. He understood that joint tenancy meant that he would own the Home after Assunta died. Stefano also testified that since Assunta’s death he has spent about $45,000 on the Home including a roof repair, furnace replacement and air conditioner replacement.

70Mr. Colavita asked Assunta why she wanted to change her Will. Her response was that she was concerned that one of her brothers had taken $250,000 from her, she no longer wanted him to control anything, and she wanted to change her documents accordingly. Mr. Colavita did not ask any further questions about this but accepted it as her reason for changing her Will and POAs.

71Mr. Colavita also explained that she could change her RRSP beneficiary to Stefano if she wanted that asset to pass outside of the Estate. He was not certain if Assunta mentioned that she already made Stefano a joint account holder on all of her accounts or that she had made him the beneficiary of her TFSAs.

72During the course of the initial interview, Mr. Colavita became concerned that Assunta’s inability to recall important dates might be an indicator of capacity issues. He had not decided whether to take the retainer. He decided to obtain a copy of the previous Will and proof of her capacity before taking further steps.

73Mr. Colavita learned from Stefano that Assunta had undergone a capacity assessment with Dr. Marotta in April 2016. Stefano gave Mr. Colavita Dr. Marotta’s number and Mr. Colavita contacted Dr. Marotta directly requesting a copy of his report. He did not receive a copy of the report from Dr. Marotta until September 28, 2016 although he requested it on June 7, 10 and 23, 2016. The report indicated that Assunta had the capacity to sign a new Will and Powers of Attorney. This gave Mr. Colavita the comfort he needed to proceed with the retainer.

74Mr. Colavita next met with Assunta on October 6, 2016. Stefano arranged for and was present at that meeting. The meeting lasted 1.2 hours. At that meeting, Mr. Colavita reviewed Dr. Marotta’s report with Assunta and Stefano. He also reviewed Assunta’s previous Will and POAs which Stefano had picked up from Ms. Agueci’s office. Stefano’s evidence was that those documents were in a sealed envelope, so he never saw them. He never knew what the 2008 Will said until this legal proceeding commenced. Stefano told the Court that he was not present during the second meeting. Mr. Colavita was firm that he was. It is not clear whether Stefano received a copy of Dr. Marotta’s report. Even if he did, he did not share those findings with the other members of the Cozza family.

75Stefano was asked about the long gap between the June and October 2016 meetings with Mr. Colavita. Stefano denied the suggestion that the gap was because Assunta was resistant to returning to Mr. Colavita.

76Mr. Colavita asked Assunta some questions to confirm that nothing had changed since the date of the report. She confirmed that nothing had changed and that she was still taking the same medication for diabetes. Mr. Colavita agreed that there had been a six-month gap between when the report was done and when he saw Assunta but he was satisfied based on her responses to him that she continued to have capacity. He conceded that it did cross his mind to request an updated assessment, but he never took any steps to do so. His evidence was that he was satisfied that Assunta knew what she wanted in her Will and understood the nature and effect of the new Will, including who would benefit from it. He was also satisfied that Assunta understood the nature and effect of the new POAs and the transfer into joint tenancy.

77Mr. Colavita confirmed he never took instructions from Stefano nor did he observe Stefano put any pressure on Assunta to make the changes. He was asked why he did not require Stefano to leave during the appointments with Assunta. He responded that he did not see any stern looks, arm grabbing or interruptions, which in his experience are the usual signs of pressure. Further, Assunta asked that he remain in the room.

78Stefano confirmed to Mr. Colavita that Assunta had been in the hospital on one occasion since the June 7, 2016 meeting for angina. Mr. Colavita agreed that he was not aware that Assunta had been to the hospital for assessments on July 21, July 26, August 17, August 19, September 5, and October 4, 2016 and that she had been admitted to hospital on September 12, 2016 and released on September 13, 2016. Neither Stefano nor Assunta gave him this information.

79Mr. Colavita was asked why Assunta needed a POA for Property when she already had one from 2005 naming Stefano and Franco as her Attorneys. He told the Court that she did not want Franco involved because he had taken money from her. He confirmed that Assunta did not advise how or when the money was taken, nor did he ask her any follow up questions about this statement. Mr. Colavita’s recollection was that Stefano agreed the money had been taken but did not provide any specifics.

80Given that Assunta was making significant changes to her Will and effectively cutting out six former beneficiaries, Mr. Colavita was asked if he had reached out to her family or her former lawyer to find out what was going on. He advised that he had not taken such steps.

81On October 12, 2016 Mr. Colavita met with Assunta and Stefano for a final appointment. At that appointment Assunta signed a Survivorship Application transferring the home from her and Mr. Coppola to her name alone, a new deed transferring the Home from her name to her and Stefano as joint tenants, the new Will and the new POAs. Mr. Colavita asked Stefano to leave the room when he reviewed and explained the new Will to Assunta. Mr. Colavita also explained to Assunta again the implications of the Survivorship Application and the transfer of title into her and Stefano’s names jointly.

82Mr. Colavita told the Court that on his own initiative he added a Standard Relations clause at paragraph 11 of the Will which reads as follows:

Notwithstanding the foregoing, let it be known that I hereby declare that Stefano Venneri and Guiseppe Venneri are to be considered my sons, regardless of the fact they are not my natural sons, nor adopted sons.

83Mr. Colavita did not have direct instructions from Assunta to insert this clause. However, his evidence was that he had bolded that part in the draft Will and carefully reviewed it with her. He was asked if he discussed with Assunta the fact that notwithstanding the above clause, Guiseppe was not going to receive anything under the new Will when he had been a 1/7 beneficiary of the residue in the 2008 Will. He testified that he did not ask Assunta why Guiseppe had been cut out of the 2016 Will other than as an alternate beneficiary.

84At the October 12, 2016 meeting, Mr. Colavita asked why she was skipping over her siblings and leaving the residue of her Estate to her nieces and nephews. According to Mr. Colavita she replied that she was upset with her siblings but did not explain why.

The Medical Evidence

A. Dr. Shulman

85Dr. Kenneth Shulman gave expert evidence in this case. His qualifications were not contested. Dr. Shulman is well known to this Court and other courts in Canada, having provided reports and expert testimony on multiple occasions. He is a psychiatrist at Sunnybrook Health Sciences Centre and a professor in the Department of Psychiatry at the University of Toronto. Dr. Shulman has published extensively in the area of geriatric psychiatry, dementia, testamentary capacity (including retrospective assessments) and susceptibility to undue influence (amongst many other topics).

86Dr. Shulman was asked to opine on Assunta’s capacity to execute the 2016 Will and property transfer. There was no dispute as to the issues upon which Dr. Shulman was asked to opine. Dr. Shulman signed and understood the Form 53 Acknowledgement of Expert’s Duty.

87Dr. Shulman explained the dichotomy of Assunta’s apparent coherence and clarity about her wish to transfer funds to her siblings in June 2014 and her later insistence that those funds were stolen from her by her brother Franco. Dr. Shulman relied on Ms. Tiralongo’s evidence (subject to any factual findings by this Court) and contrasted it with Assunta’s later insistence that the transfer was done without her knowledge or consent.

88Dr. Shulman referred to Dr. Marotta’s report in which Dr. Marotta specifically mentions that the reason Assunta was to be assessed was because she wanted to change her Will and POAs. Her reason for doing so was because she felt betrayed by Franco and thought he had stolen money from her in June 2014. She apparently did not have any recollection of the scenario described by Ms. Tiralongo.

89Dr. Shulman attempted to explain this discrepancy by reviewing the extensive records provided to him including Mr. Colavita’s transcript and notes, Dr. Pinto’s notes, hospital notes and records, Dr. Marotta’s report and Ms. Tiralongo’s statutory declaration.

90Dr. Shulman pointed out that although he was doing a retrospective assessment, he had more extensive records available to him than Dr. Marotta. He told the Court that Assunta suffered from multiple fluctuations in her mental state beginning in 2013. An MRI done in 2013 noted that she suffered from Small Vessel Disease associated with her Type 2 Diabetes. In May 2014 Dr. Pinto’s notes reflect that Assunta was brought in by Stefano who complained that Assunta was increasingly forgetful, lethargic and incontinent.

91Between 2013 and 2016 Assunta had multiple episodes of decompensation which included four hospitalizations and at least five ER visits. This decompensation occurred when she mixed up her medications or was dehydrated. She would be admitted to hospital with renal failure and in a confused state. This was directly related to her diabetes. Once she was hydrated and back onto her regular medications she recovered quickly. Dr. Shulman described her as “resilient.”

92Dr. Shulman referred to a note made by Dr. Pinto on August 11, 2014 (just two months after the impugned funds transfer) where she was brought in by her nephew Frank Menotti. The family had concerns about her confusion. They gave examples such as her confusing salt for sugar in cooking, putting her clothes on backwards, not bathing or making her bed and suffering from confusion about what month or day it was. While Dr. Pinto referred to this as dementia and wanted to refer Assunta to a neurologist, Dr. Shulman opined that Assunta was suffering from acute mental confusion and delirium. Eventually Dr. Pinto referred Assunta to Dr. Giovanni Marotta, a specialist in geriatric and internal medicine.

93While it is true that when Dr. Marotta saw Assunta in April 2016 she was intact, he did not have the advantage of looking at her medical records as a whole and being able to see an overall view of her fluctuations in cognition. Dr. Shulman viewed Assunta’s condition as confusion and vulnerability directly related to her Small Vessel Disease.

94Dr. Pinto saw Assunta again on September 29, 2016. She noted that Assunta participated fully in decisions about her health and was cognitively intact. She described Assunta as “lucid” and being aware of the importance of maintaining her blood sugar level.

95While Dr. Shulman does not quibble with Dr. Marotta’s findings, he expressed some concerns about the basis for the assessment. That is, Dr. Marotta stated that it was alleged that Assunta’s siblings obtained a POA for Property from her without her understanding of what was going on and then used that to transfer money to themselves allegedly for safekeeping. Assunta was very disturbed by this and understood that Dr. Marotta would assess her capacity to make a new Will and POAs. Dr. Marotta sent a formal report to Mr. Colavita dated June 28, 2016 confirming that Assunta was capable of executing a new Will and a transfer of her property to joint ownership. The June 28, 2016 report was based on the meeting that Dr. Marotta had with Assunta on April 4, 2016. He did not conduct a further meeting with her before issuing his report.

96There is no explanation as to how information about the allegations in relation to the GIC transfer came to Dr. Marotta or whether it was corroborated in any way. Importantly, Dr. Marotta did not qualify his opinion based on this assumption of fact. There is nothing to indicate that Dr. Marotta was given access to Ms. Tiralongo’s evidence or that he was aware of the 2008 Will. Dr. Marotta did not probe Assunta for the rationale with respect to changing her POAs.

97Dr. Marotta assessed Assunta using the RUDAS cognitive screening test. This is a test which, according to Dr. Shulman, is appropriate for individuals with limited literacy skills. She scored 28/30 on the test from which Dr. Marotta concluded that Assunta did not have an “active cognitive deficit.” Dr. Shulman’s evidence was that the RUDAS score is not sufficient on its own to conclude that Assunta was cognitively intact.

98Dr. Shulman testified that the only explanation for the discrepancy between Ms. Tiralongo’s evidence and the theft allegation is that Assunta was suffering from a memory deficit and that she became convinced of the theft either on her own or by outside influence. The memory deficit was caused by repeated decompensations. Dr. Marotta’s report does not go far enough in that it fails to provide a rationale for the changes in the beneficiaries to her Will and the new Attorneys.

99Further, Dr. Shulman described Assunta as vulnerable due to her cognitive impairment. Such vulnerability would make her more likely to be susceptible to consistent pressure or encouragement towards a specific belief.

100Dr. Shulman also told the Court that it was possible that Assunta had simply forgotten what happened and that she came to a fixed false belief. It is not uncommon for persons suffering from memory deficits to forget things and come to such a false belief. Such delusions can last for long periods of time.

101Dr. Shulman therefore concluded that Assunta was suffering from a fluctuant cognitive disorder which led her to believe that her siblings’ actions required her to change her Will and POA. If she was suffering from a mental disorder this would affect her capacity to execute her Will and the transfer according to the test in Banks v. Goodfellow. He concluded that Assunta did not have the requisite capacity to change her Will or ownership of her property.

102Dr. Shulman stated in his report that he was not in a position to determine whether or not Stefano exerted influence on Assunta to make the legal changes. However, he noted her dependency on Stefano after the death of Giovanni and that given her level of vulnerability due to cognitive changes, she would have been vulnerable to influence from Stefano had it been presented in a persistent fashion. He stated that it would not have taken much to cross the line of undue influence given Assunta’s circumstances, but left that finding to be made by the Court.

B. Dr. Marotta

103Dr. Marotta gave evidence in relation to his opinion of capacity dated June 28, 2016. Dr. Marotta’s expertise was not contested. He has been a qualified capacity assessor since 1997. He has been a geriatric medical specialist since 1993 with several decades of experience in the area of cognitive disorders. He is also an internal medicine specialist and a lecturer at the University of Toronto. He was retained to provide an expert opinion on Assunta’s capacity to make a new Will and transfer her Home. He confirmed that he had signed the requisite Acknowledgment of Expert’s Duty.

104Dr. Marotta knew both Assunta and Stefano from the time when he had been Giovanni’s doctor. He received a referral for a capacity opinion from Dr. Pinto who was Assunta’s family doctor. Dr. Marotta had known Dr. Pinto for more than 30 years. He received two referral notes from Dr. Pinto, one from 2014 in relation to memory concerns and another from an appointment with Dr. Pinto in November 2015. Dr. Marotta was confident that based on his long-term professional association with Dr. Pinto that she would have noted any cognitive or delusional disorder.

105Dr. Marotta examined Assunta for 1.5 hours on April 4, 2016 based on Dr. Pinto’s referral. He then wrote to Dr. Pinto on April 4, 2016 setting out his opinion. He noted certain facts which impacted Assunta’s situation including grief from the recent death of her husband, short-term memory issues and a “stressor” related to the impugned transfer. Dr. Marotta described the issue as follows in his letter to Dr. Pinto:

An additional stressor has appeared with respect to financial issues. It is alleged that her siblings have managed to obtain power of attorney for property from her without her really understanding what she had signed over which is certainly a plausible situation given her very limited literacy skills in Italian and no literacy in English. It seems that she had a fair bit of money saved over the years and that her siblings presented a power of attorney for property to the bank and have taken the money claiming that they have taken this for her safe keeping and that they will at some point return it to her. She is disturbed by this. She is preparing to visit her own attorney In order to prepare a new power of attorney and in order to prepare a new will following the death of her common-law partner.

106Stefano confirmed that he told Dr. Marotta, that it was his belief that Franco had misused his POA for Property to steal money from Assunta. Dr. Marotta was asked why he did not follow up on this serious allegation to confirm its veracity. His response was that he relied on Dr. Pinto to get back to him after his letter to her of April 4, 2016. Since he did not hear from her his position was that there was no reason for further follow up on the factual background.

107Dr. Marotta testified that he relies on a checklist when doing capacity opinions. While that checklist was not in evidence, he testified that part of it includes testing for internal consistency and delusions. He did not find that Assunta suffered from delusions. Specifically, he was told by Assunta that two of her siblings had taken $250,000 from her and another sibling had taken $20,000. As a result, she felt they had already received their share of the inheritance and she wanted to do a new Will. Dr. Marotta agreed that an individual may be mistaken as to why they are changing their Will but still understand what they are leaving in their new Will. Dr. Marotta felt there was an element of fairness in the way in which Assunta approached this even if she was mistaken about why the money had been transferred.

108Dr. Marotta was satisfied that Assunta knew who her potential beneficiaries were (siblings, nieces, nephews etc.) and that many of them would be left out of a new Will although he did not specifically ask about the previous Will because that was not part of his capacity assessment. He knew that Assunta wanted Stefano to receive her Estate and not her blood relatives because of the theft allegation. Further, it was not for him to do any further investigation about the allegation. He insisted that Assunta go to a lawyer who would explore this aspect. He waited to release his opinion until June 2016 so that he could hear back from both Dr. Pinto and Mr. Colavita before finalizing his report.

109During the interview, he requested a letter from Assunta’s lawyer setting out exactly what questions he was to answer before he would provide a formal medical legal opinion. At the time he interviewed Assunta, she had not yet retained Mr. Colavita. Once Dr. Marotta heard from Mr. Colavita he sent his opinion dated June 28, 2016. Dr. Marotta found that Assunta had the requisite capacity to make a Will, do new POAs and transfer property. He confirmed that he explored with Assunta her memory and abstract reasoning to ensure she understood the consequence of making decisions. He found no evidence of dementia or delusional thinking in the course of his examination.

110Part of Dr. Marotta’s assessment included administering the RUDAS test to Assunta. This is a test which is used for individuals who have limited literacy skills. The test was conducted in Italian. Assunta scored 28/30 on the test. This confirmed to Dr. Marotta that Assunta did not have an active cognitive deficit. Dr. Marotta testified that Stefano was not in the room during the test and according to his checklist would have been asked to leave once he had shared his concerns with Dr. Marotta.

111Dr. Marotta was asked if his opinion would change if he knew that her siblings denied the theft and that the gift was freely made to them. Dr. Marotta told the Court that delusions do not just arise in one discreet area. They are usually found in a pattern and identified by the family doctor. However, so long as she had capacity, the fact that she intended to make changes because of actions that her siblings may or may not have taken is irrelevant in terms of how she decided to deal with her property.

112Importantly, Dr. Marotta made the following observations in his report:

During the assessment, she was quite well oriented to date, place, details with respect to her financial matters and she repeatedly demonstrated an understanding of the nature of a will, the extent of her estate, the identity of the expected beneficiaries, the importance of preparing a will in order to reflect her wishes with respect to the disposition of her property following her death. She did not demonstrate any significant cognitive losses, nor did she show any evidence of delusions or other psychotic symptoms that would have an impact on her will. I did not see any indications of influence from others in her reasoning and her choices.

113Dr. Marotta was asked whether it was advisable to have the new beneficiary of Assunta’s entire Estate at the interview in terms of any undue influence. Dr. Marotta testified that determining undue influence was up to the Court, not him. There is often a potential for undue influence, but he controls for that by ensuring that those being assessed have independent counsel and by having a private interview with the person being assessed. Once capacity was determined, an individual was free to make their own choices.

114Dr. Marotta was unable to explain why his June 2016 report was not delivered to Mr. Colavita until September 2016. He agreed that there was a gap between when he interviewed Assunta and when she signed the new Will in October 2016. An updated capacity opinion could have been requested but Dr. Marotta’s view was that such opinions are valid for six months.

C. Dr. Pinto

115Dr. Lucina Pinto was Assunta’s family doctor from1989 onward. She provided a report to Stefano’s counsel dated March 10, 2017. Counsel for Franco seeks to exclude the report. His position is that the report contains evidence of an expert and that Dr. Pinto has not complied with Rule 53.03.

116The report in issue was verbally requested by Mr. Watt in order to provide insight into the time leading to Assunta’s last visit to Dr. Pinto on September 29, 2016. The report is based on her notes and was written some six months after the subject visit. Dr. Pinto called Stefano to obtain his consent to write the report. Dr. Pinto was aware that there was litigation going on in the Cozza family when she wrote the report.

117Dr. Pinto noted that Assunta attended the September 29, 2016 visit with her stepson Stefano. Stefano had accompanied Assunta on all her doctor’s visits for the previous three years. This fact did not form part of her opinion, but was simply something she always noted when elderly patients were accompanied to their appointments.

118Dr. Pinto noted that Assunta looked much more cheerful on September 29, 2016 than when she had seen her on September 12, 2016 in the company of Anna Venneri (when Stefano was in Italy). After that appointment, Dr. Pinto sent Assunta directly to the hospital for sepsis from a urinary tract infection. Dr. Pinto agreed that Assunta was not cognitively intact on September 12, 2016.

119Dr. Pinto did not conduct any cognition examination of Assunta on September 29, 2022. She noted that Assunta fully participated in decisions about her health including the importance of blood sugar control and the possibility of insulin injections. While her opinion letter to Mr. Watt said that she could “categorically state that Ms. Cozza participated fully in decision and was cognitively intact” nothing of that nature were in the notes she took of the interview that day.

120Dr. Pinto suggested that Assunta have an MRI done of her head. While her note says that Stefano wanted to wait on the MRI, Dr. Pinto’s recollection was that she discussed this with Assunta in Italian and that it was Assunta who wanted to wait. Assunta was very vocal about what she did and did not want in terms of her treatment including not wanting to start on insulin injections. She did not want aggressive treatment. Further, Stefano never instructed Dr. Pinto about Assunta’s medical treatment.

121The highlights of the letter to Mr. Watt from Dr. Pinto dated March 10, 2017 are as follows:

a. Assunta had complained of chronic headaches and was hospitalized from September 12-13, 2016 for hyperglycemia and a urinary tract infection. Delirium work up and a CT scan of the head were done. Both came back negative.

b. When she saw Assunta on September 29, 2016 she was cheerful and glad to have her stepson back from Italy. Dr. Pinto suggested undergoing an MRI to the head which Assunta refused. Assunta appeared lucid and understood the importance of regular meals in keeping her blood sugar level controlled.

122Dr. Pinto then made the conclusion referred to above that Assunta was cognitively intact on September 29, 2016.

123Initially, Mr. Watt sought to have Dr. Pinto testify as a participant expert as the deceased’s treating physician. It was later agreed that her letter to Mr. Watt and the transcript of her cross-examination would be put in evidence and argument made with respect to Rule 53.03 of the Rules of Civil Procedure with respect to whether Dr. Pinto should be treated as a litigation expert.

Analysis and Ruling re the March 10, 2017 Letter from Dr. Pinto to Robert Watt

124Mr. Cappone submits that Dr. Pinto was retained to provide a medical opinion for the defence. Her clinical notes made in relation to the September 29, 2016 visit do not express any opinion on capacity and the opinion provided was not contemporaneous with the office visit. The medical opinion provided was not done for the purpose of consultation or treatment but to assist the defence with respect to Assunta’s state of cognition shortly before she signed her new Will, the POAs and the property transfer.

125Given the above, Dr. Pinto has not complied with her expert’s duty and her opinion must therefore be excluded.

126Westerhof v. Gee Estate, 2015 ONCA 206, 124 OR (3d) 721, leave to appeal refused, 2015 CarswellOnt 16501, is the leading case in Ontario with respect to participant experts. In Westerhof, the Ontario Court of Appeal confirmed that participant and non-party experts may give opinion evidence without complying with Rule 53.03. That Court concluded that a witness with:

…with special skill, knowledge, training, or experience who has not been engaged by or on behalf of a party to the litigation may give opinion evidence for the truth of its contents without complying with rule 53.03 where

the opinion to be given is based on the witness' observation of or participation in the events at issue; and

the witness formed the opinion to be given as part of the ordinary exercise of his or her skill, knowledge, training and experience while observing or participating in such events: at para 60.

127­The opinion of the participant expert will not be accepted if it ventures beyond the limits described above.

128In accordance with the principle in Westerhof, I accept Dr. Pinto’s opinion as a participant expert as per her letter of March 10, 2017 for the following reasons:

a. Dr. Pinto had been Assunta’s treating physician for 28 years at the time. She had an intimate knowledge of her medical history. Many of her other clinical notes that related to Assunta’s medications, hospital admissions, diabetes and memory issues formed part of the Court record.

b. I do not see that the fact that Dr. Pinto’s opinion was rendered several months after September 29, 2022 is fatal to accepting it. It may have been different if Dr. Pinto had seen Assunta for the first or second time on September 29, 2016. That is, her opinion was not given in a vacuum, but based on a long-term doctor-patient relationship even if the opinion was rendered some months after the actual meeting.

c. Dr. Pinto was not paid by Mr. Watt for her opinion. She rendered the opinion as a treating physician.

d. I do not accept Mr. Cappone’s reference to Dr. Pinto being a “cheerleader” for Stefano’s position. Dr. Pinto was clear in her cross-examination that Assunta understood her medical condition and did not want aggressive treatment including an MRI for her head.

e. The fact that Dr. Pinto writes that Assunta was cognitively intact on September 29, 2016 was not an opinion formed for the purpose of the litigation. It was an opinion as to her patient’s condition on that particular date of treatment.

f. Mr. Cappone submits that the letter was not prepared in the course of consultation or treatment while participating in the events. The letter was provided long after Assunta’s death. I disagree. A participant expert (such as a family doctor) may provide a report based on the expert’s observations and any resulting opinion that was formed as a result of the exercise of skill, knowledge, training or experience while observing or participating in the events (See St. Marthe v. O’Connor, 2021 ONCA 790, 159 O.R. (3d) 148, leave to appeal refused, 2022 CarswellOnt 6746, at para 24 citing Westerhof).

g. Certainly Dr. Pinto was exercising her skill and training during her meeting with Assunta on September 29, 2016. She suggested an MRI for the head, and she reminded Assunta of the importance of the timing of her meals or insulin injections would be required. Her interactions with Assunta and her opinion that Assunta clearly understood her medical condition well enough to decline the MRI led to her opinion that Assunta was cognitively intact at that time.

h. Dr. Pinto understood that her letter was not intended to be a capacity assessment. It was an opinion based on her role as Assunta’s long time family physician and her observations of her patient on that day.

129Given all of the above, I find that Dr. Pinto’s March 10, 2017 letter to Mr. Watt can be accepted by this Court as the opinion of a participant expert. Dr. Pinto is therefore not required to comply with Rule 53.03.

THE LAW

Issue #1 – Should the October 12, 2016 Will be Set Aside Based on Suspicious Circumstance?

130In Vout v. Hay, (1995), 1995 CanLII 105 (SCC), 2 S.C.R. 876 at para 25, the Supreme Court identified three general types of suspicious circumstances: 1) suspicious circumstances raised by events surrounding the preparation of a Will; 2) events that call into question the capacity of the Testator; and 3) circumstances that suggest the free will of the Testator was overtaken by acts of coercion or fraud.

131In Royal Trust Corporation of Canada v. Saunders, 2006 CanLII 19424 (Ont. S.C.) at para 78 the Court may consider the following with respect to suspicious circumstances:

a. the extent of physical and mental impairment of the testator around the time the Will was signed;

b. whether the Will in question constituted a significant change from the former Will;

c. whether the Will in question generally seems to make testamentary sense;

d. the factual circumstances surrounding the execution of the Will;

e. whether a beneficiary was instrumental in the preparation of the Will.

132A Testator must be of a sound mind to be capable of making a Will. In Banks v. Goodfellow,(1870) LR 5 QB 594 (UK), the Court identified four broad criteria for determining capacity. The Testator must: 1)) understand the nature of the act and its effects; 2) understand the extent of the property of which she is disposing; 3) shall be able to comprehend and appreciate the claims to which she ought to give effect; and 4) no disorder of the mind 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."

133The legal principles with respect to testamentary capacity were summarized by Justice Cullity in Scott v. Cousins, [2001] O.T.C. 9(Ont. S.C.), at para 39 as follows:

a. The person propounding the Will has the legal burden of proof with respect to due execution, knowledge and approval and testamentary capacity. In attempting to discharge the burden of proof of knowledge and approval and testamentary capacity, the propounder of the Will is aided by a rebuttable presumption. That is upon proof that the Will was duly executed with the requisite formalities, after having been read over to or by a Testator who appeared to understand it, it will generally be presumed that the Testator knew and approved of the contents and had the necessary testamentary capacity. This presumption simply casts an evidential burden on those attacking the Will.

b. A person opposing probate has the legal burden of proving undue influence. A well-grounded suspicion of undue influence will not, per se, discharge the burden of proving undue influence on those challenging the Will. Such suspicion will do no more than rebut the aforesaid presumption, thus the propounder will need to prove knowledge and approval and testamentary capacity. However, the burden of proof with respect to fraud and undue influence remains with those attacking the Will.

c. The standard of proof on each of the above issues is the civil standard of proof on a balance of probabilities.

d. The existence of suspicious circumstances does not impose a higher standard of proof on the propounder of the Will than the civil standard of proof on a balance of probabilities. However, the extent of the proof required is proportionate to the gravity of the suspicion.

134I will deal first with the issue of any physical or mental impairment suffered by the testator at the time of signing the Will. The evidence with respect to this issue comes from both the experts and fact witnesses. Given the reports of Dr. Shulman, Dr. Marotta and Dr. Pinto, I defer to their opinions. The evidence of the fact witnesses and specifically Frank, Franco and Stefano point to a woman who was subject to confusion at times. She had many hospital admissions and assessments between 2014 and 2016. However, these were related to her diabetic condition and susceptibility to urinary tract infections.

135Dr. Shulman provided a retrospective assessment. He was candid with the Court that a contemporaneous interview with the individual to be assessed is the gold standard. However, his view was that he had a far broader picture of Assunta’s overall health than Dr. Marotta because he reviewed extensive records going back to 2013. He observed a pattern of “decompensation” which resulted in a mental disorder and a memory deficit.

136Dr. Shulman’s evidence was that Assunta’s confusion and decompensation was related to Small Vessel Disease, dehydration and not taking or mixing up her medications. Once she rehydrated and her blood sugars were rebalanced, she recovered quickly. Despite Dr. Shulman’s findings about Assunta’s delusion related to the impugned transfer, he confirmed to the Court that if Assunta was properly hydrated and had taken her medication in the right doses, she would have had capacity on a given day to sign a new Will and POAs.

137Dr. Shulman’s assumptions about delusional thinking were grounded in an acceptance of Ms. Tiralongo’s evidence. As will be seen below, this Court has made no specific finding about the impugned transfer given the contradictory evidence on that point. Rather, this Court has adopted the reasoning of Dr. Marotta that whether or not the money was stolen from Assunta, or she gifted it, she had the requisite capacity to sign a new Will to effectively rebalance the distribution of her Estate.

138While I agree that Dr. Shulman performed a more rigorous review of Assunta’s medical history than Dr. Marotta, there was no evidence that the mental disorder emanating from the delusion found by Dr. Shulman impinged on her capacity to make a new Will. For this reason, I reject Dr. Shulman’s evidence with respect to Assunta’s capacity to sign the 2016 Will.

139Dr. Marotta had known Assunta for many years because he had treated her common law spouse Giovanni. Dr. Marotta found that Assunta had capacity after a 1.5 hour interview which included administering the RUDAS test. He looked for evidence of delusional thinking during his examination of Assunta but could find none. He was able to conduct his entire interview with Assunta in Italian which ensured that Assunta was able to fully comprehend all that was asked of her.

140Dr. Marotta’s evidence withstood cross-examination. He was intensely questioned about why he did not follow up further with respect to Assunta’s insistence that her POA for Property had been misused to steal money from her. I find that Dr. Marotta had no obligation to do so after receiving this information from Stefano and confirming it with Assunta for the following reasons:

a. He sent his findings to Dr. Pinto as a form of initial screening and did not hear back from her with any queries as to his findings.

b. Pursuant to the checklist he always uses for such assessments, he advised Assunta that she would need to retain a lawyer to set out for him the exact questions to be answered in his capacity opinion report and to assist her with the legal implications of her allegations of theft.

c. After he sent his findings to Mr. Colavita in September 2016 he did not hear back by way of a request for a further assessment or any clarification.

d. Dr. Marotta did not find evidence of delusions and told the Court that delusions do not just “pop up” in one particular area, such as her reasons for believing a theft had occurred. Rather, in his opinion, delusions occurred in a pattern that would have been identified by her family doctor. No such identification was made by Dr. Pinto.

141Dr. Pinto was asked to provide a report regarding her meeting with Assunta on September 29, 2016. There was no evidence as to exactly what she was asked to do by Mr. Watt as he did not make the request to her in writing. I have already found that Dr. Pinto’s report dated March 10, 2017 can be accepted as the evidence of a participant expert.

142The evidence of the contact with Assunta by Dr. Pinto on September 29, 2016 is critical because it was shortly before the Will, POAs and transfer was signed but after the September wedding. Her demeanour at the September 2016 family wedding was described in detail by Frank and his wife Luciana as “dazed” and unresponsive. Assunta was an hour and a half late for the wedding because she could not find her housekeys. Once there, she did not eat but had to be fed by Luciana.

143It must be noted that at the time of the wedding her caregiver Stefano was on a two-week trip to Italy. While Stefano had arranged for care from another relative as well as CCAC for Assunta while he was away, it appears that she was not receiving sufficient monitoring. At the wedding, she was clearly suffering from the type of confusion she exhibited when she was dehydrated or not taking proper medication.

144However, consistent with Dr. Shulman’s evidence that once hydrated and properly medicated Assunta recovered quickly, she appeared quite herself on September 29, 2016. I rely on Dr. Pinto’s observations of Assunta on that date and her opinion as her long-term treating physician that Assunta appeared lucid. Dr. Pinto’s observations of her patient that day led her to comment that Assunta participated fully in decisions about her health and was cognitively intact. I note that Dr. Pinto made no reference to delusions or a mental disorder.

145Finally, there is the evidence of Mr. Colavita regarding Assunta’s capacity. Mr. Colavita was an experienced and careful Wills and Estates practitioner. He knew that Assunta wanted to change her Will and transfer the Home, the effect of which would be to give her entire Estate to Stefano. Mr. Colavita did not rush into this task. Indeed, after the first information gathering meeting in April 2016 Mr. Colavita had not yet decided whether to take on the retainer given that Assunta could not remember certain important dates such as the date of Giovanni’s death.

146Rather, he wrote to Dr. Marotta on three occasions asking for a capacity opinion and waited until September to receive that opinion. Even after receiving that opinion, his evidence was he still had some reservations. During his second interview with Assunta he confirmed that that there had been no changes in her condition since the date of the assessment.

147The Plaintiff asserts that there were in fact significant changes in Assunta’s health since the assessment including several hospital admissions and Assunta’s behaviour in September at the family wedding. I accept that Assunta continued to have health issues related to her diabetes, but I also accept the following evidence:

a. Dr. Pinto’s evidence related to Assunta’s condition on September 29, 2016, only 13 days prior to her signing the Will, POAs and transfer on October 12, 2016;

b. Dr. Shulman’s evidence that so long as Assunta was properly hydrated and taking the proper medication she would have capacity to sign a Will notwithstanding his diagnosis that she suffered from the effects of Small Vessel Disease;

c. Dr. Marotta’s opinion that he found no evidence that Assunta suffered from delusions and had capacity to sign a Will, and;

d. Mr. Colavita’s observations as an experienced Estates’ practitioner.

148This evidence, when taken as a whole supports my finding that Assunta had the requisite capacity to sign a Will, the POAs and the transfer on October 12, 2016. This does not mean that she was free from memory issues and physical challenges, but I find that Assunta knew exactly what she wanted to do with her Estate and the effect of doing so.

149With respect to the Banks criteria, Assunta was aware that the Home was the most valuable asset in her Estate and that she was transferring it to Stefano. A discussion was held in Mr. Colavita’s office with Stefano, Assunta and Mr. Colavita where Mr. Colavita advised Assunta that assuming the Home was worth $800,000 (Stefano’s estimate at the time), transferring the home to herself and Stefano as joint tenants would result in savings of approximately $12,500 in Estate Administration Tax.

150Counsel for the Plaintiff argued that Assunta did not understand the implications of the transfer because she was never advised that Stefano could force a sale of the Home as a joint tenant thereby depriving her of possession of the Home. While Mr. Colavita conceded that he did not advise Assunta of this possibility, I do not view this as critical to Assunta’s understanding of the implications of the transfer. Stefano’s evidence was that he and Assunta intended to reside there together until she passed away. That is exactly what happened.

151I am further satisfied that Assunta knew the effect of making a new Will. As the bulk of her Estate was consumed by the transfer of the Home, there was little left by way of residue. Her bank accounts had already been changed into joint names with Stefano and he had been made the designated beneficiary of her TFSA and RRIF. As already mentioned, her Estate would have gone to her nieces and nephews in the event Stefano pre-deceased her. This made sense given the sentiments she had expressed about her siblings.

152As for the effect of any mental disorder, that has been dealt with above. Dr. Shulman found that Assunta suffered from a delusion related to the theft of funds by Franco. She therefore suffered from a mental disorder which affected her capacity to make a new Will. For the reasons previously expressed, there is considerable doubt about whether Assunta suffered from ongoing and serious delusions given the opinions of Dr. Marotta and Dr. Pinto. However, even if Assunta was wrong about what happened with respect to the impugned transfer, she still had capacity to sign the Will, POAs and transfer.

153With respect to the legal principles related to testamentary capacity as outlined in Scott, I accept Mr. Colavita’s evidence that he had a private interview with Assunta on October 12, 2016 during which he read over the entire Will to her in Italian. She was advised of and approved the addition of the “familial relations” clause in relation to her view of Stefano and Guiseppe as her own sons. There has been no challenge to the execution formalities of the Will with respect to signature and witnesses.

154As for Assunta’s understanding of the contents of the Will, there is no reason not to accept Mr. Colavita’s evidence that he read the Will and POAs to Assunta in Italian during a 20-minute interview before she signed them. There was no evidence that Assunta did not understand what was explained to her, asked for time to think about them or asked for any changes to be made to them. The legal presumption is that having read and understood the Will and having met the formal execution requirements, Assunta is deemed to have capacity to sign the Will. The Plaintiff may rebut this presumption by introducing evidence of incapacity or undue influence. I have dealt with capacity and will deal with undue influence below.

155There can be no doubt that the 2016 Will was a significant change from the 2008 Will. Mr. Colavita knew this as he had requested and received a copy of the 2008 Will from Ms. Agueci. Mr. Colavita, using his methodical and careful approach, ensured that he fully understood the changes that Assunta was making.

156Mr. Colavita interviewed Assunta in Italian on the three occasions he met her so that there could be no misunderstanding as to her instructions. Mr. Colavita agreed in cross-examination that he did not call Ms. Agueci or any of the family members who were being disinherited to check on the reason for such a significant change. It is this Court’s view that Mr. Colavita had no obligation to do so because he believed Assunta when she told him that she was angry with her siblings who had already taken $250,000 from her.

157It should be pointed out that Assunta did not entirely disinherit her family. In the event that Stefano pre-deceased her, her Estate would be divided amongst her nieces and nephews and Guiseppe.

158Dr. Marotta was asked about what enquiries he made with respect to the changes that Assunta intended to make. I accept his evidence that she knew who her “potential” beneficiaries were but that one sister had taken $20,000 from her and another brother had taken $250,000 from her through the misuse of her POA for property. As Dr. Marotta did not find that Assunta suffered from delusions, he accepted that her reasons for changing her Will stemmed from a sense of fairness which seemed logical to him as she had lost faith in her family. She was clear that she wanted Stefano to receive her Estate and not her blood relatives. He deferred to Mr. Colavita to review the legal implications of the changes.

159Given all of the above, I do not find that the 2016 Will should be set aside based on suspicious circumstances. Assunta had capacity to sign the Will and the transfer and understood the significant change that she was making to the distribution of her Estate. While Stefano accompanied her to appointments with Dr. Marotta, Dr. Pinto and Mr. Colavita, he was her caregiver and there was no evidence that anyone other than Assunta was providing the requisite instructions. I further find that Assunta understood the extent of her assets and knew and approved of the contents of the 2016 Will. While she may have been mistaken with respect to the 2014 impugned transfer, she nonetheless had capacity to redistribute her Estate on that basis.

Issue #2 - Was Assunta Subject to Undue Influence?

160Undue influence may occur when the party exerting coercion and the Testator are alone, such that only circumstantial evidence may prove it. The Court may consider the following factors for whether undue influence is established by circumstantial evidence: 1) the willingness or disposition of the persons to have exercised the undue influence; 2) whether an opportunity existed; 3) the vulnerability of the Testator; 4) the degree of pressure that would be required; 5) absence of moral claims of the beneficiaries; 6) whether the Will departs radically from the dispositive pattern of earlier Wills. See Scott v. Cousins, [2001] O.T.C. 9, at para 114.

161While the existence of undue influence is fact specific, the Court has provided certain indicators of undue influence. These include: 1) when the beneficiary suddenly directs the Testator to a new lawyer that is unknown to the Testator to draft a new Will; 2) a beneficiary has conveyed instructions to the drafting lawyer on behalf of the Testator; 3) the Testator made a new Will that is inconsistent with previous iterations of the Will; 4) the Testator made changes that were similar to changes made in other documents, such as a power of attorney. See John Gironda et al. v.Vito Gironda et al., 2013 ONSC 4133, 94 E.T.R. (3d) 44, at para 77.

162The role of the solicitor in drafting and executing the Will is also an important consideration for undue influence. When considering whether a solicitor gave independent advice to the Testator, the following are pertinent factors: 1) whether the donee was present when the advice was given to the donor; 2) whether the advisor although technically engaged by the donor, in fact took instructions from the donee; 3) whether the gift was substantially all of the donor's property and did the advisor know this; 4) whether the advisor asked whether other family members who might be disadvantaged by the gift had been advised; and 5) whether the advisor discussed alternatives with the donor. See Kavanaugh v. Lajoie, 2013 ONSC 7, at para. 131.

163Proof of undue influence requires more than motive and opportunity to influence the Testator. A party must actually exert power such that the Will would not exist, or exist in its current form, but for that exertion of that power over the Testator. The party challenging the Will based on undue influence bears the burden of proof, on the balance of probabilities. See Driscoll v. Driscoll, 2016 ONSC 4628 at para 46.

164In the case at bar, Franco must prove, on the balance of probabilities that Stefano unduly influenced Assunta to change her Will, POAs and transfer the Home. I do not find that the Plaintiff has met that burden for the reasons set out below.

165I accept Dr. Marotta’s evidence that he conducts his assessments by way of private interview. This makes sense and is consistent with his checklist protocol. It also makes sense that he would have included Stefano in the initial part of the interview to obtain some background information.

166As for Mr. Colavita’s interviews, I accept his evidence that Stefano was not present during the signing of the relevant documents. He was, however, present during the other interviews at Assunta’s specific request. Mr. Colavita was not concerned about this because he did not see any of the usual signs of pressure such as stern looks, interruptions or arm grabbing.

167While Mr. Colavita agreed that it was Stefano who set up the appointments and communicated with his office, I find that this alone is not evidence of undue influence. Stefano took these steps at Assunta’s request and with her knowledge.

168Mr. Colavita confirmed that at all times he was instructed by Assunta and not Stefano. There is nothing in his notes relating to any concerns about Stefano putting pressure on Assunta. As an experienced Wills and Estates practitioner I infer that he would have taken steps (such as asking Stefano to leave the interviews) if he thought such pressure existed.

169Dr. Pinto’s notes indicate that Stefano attended with Assunta for the September 29, 2016 appointment. While her note indicates that Stefano asked that the MRI wait, she deposed during her cross-examination that it was Assunta who asked to wait on the MRI. Dr. Pinto described Assunta as a patient who knew what she wanted and did not want aggressive treatment. Dr. Pinto was clear that Stefano did not instruct her with respect to Assunta’s medical treatment. I therefore reject the argument of the Plaintiff that Stefano refused the MRI on Assunta’s behalf because he was concerned about the effect of those results on the upcoming signing appointment with Mr. Colavita.

170This is a case where the changes to the relevant documents meant that Stefano would be receiving everything Assunta owned. However, Mr. Colavita knew this. He gave evidence based on his notes from the October 6, 2016 meeting which are clear that he reviewed Assunta’s assets with her including the Home, a joint bank account with Stefano, TFSAs and a RRIF. He had also done a title search on the Home and discovered that title was still in the name of Assunta and her deceased spouse. He advised Assunta that a Survivorship Application would need to be registered. He reviewed with her the beneficiaries of the 2008 Will and noted her specific instructions with respect to the 2016 Will. His note says “all to go to her “step-son.””

171I am satisfied that both Mr. Colavita and Assunta knew that she was making a significant change to her Estate planning. The reasons for doing so were also understood by Mr. Colavita and dealt with elsewhere in this judgment. As previously mentioned, Mr. Colavita did not rush into this retainer. He went through an initial interview, followed up and received an opinion of capacity, reviewed the previous Will, did a title search, had a second interview, confirmed that no changes had occurred since the initial interview and only then was he satisfied that he would accept Assunta’s instructions. While there were significant changes made, I accept they were done with Assunta’s full understanding of them after receiving independent legal advice and without influence from Stefano.

172This is certainly a case where the Testator could be considered to be vulnerable, and opportunities existed for Stefano to influence her. Stefano was very emotional in the way his spoke of his relationship with Assunta at trial. He gave evidence that Assunta told him he was the son she had never had. He testified that he had sat at her table for 38 years and she was like a mother to him since his own mother had died when he was 2 years old.

173However, there was some negative evidence about Stefano including Ms. Tiralongo’s reference to Assunta’s description of Stefano as lazy and unemployed and Frank’s evidence that Stefano scolded his aunt and gave him the “cold shoulder” after Giovanni died. None of the negative evidence was corroborated by any other witness. Stefano denied the allegations.

174What is uncontested is that Stefano and Assunta lived in the same home together for 38 years and that after his father died, Stefano became Assunta’s primary caregiver. Even if the negative evidence about Stefano is accepted, there is no doubt that he cared for her and attended to her needs much more significantly than anyone else in her family. I reject any contention that Stefano was able to coerce Assunta to the point where she gave in and left him her entire Estate.

175The professionals who dealt with Assunta including Dr. Marotta and Mr. Colavita were alive to the possibility of such influences but did not report any. Assunta Cozza was described by her brother, her family doctor, her nephew and Dr. Marotta as a strong willed but fair-minded woman. I find that had Stefano attempted to influence Assunta as alleged she would have pushed back because she knew what she wanted.

176Franco recognized Stefano’s caregiving role with his sister and was not critical of that relationship. Dr. Pinto, Dr. Marotta and Mr. Colavita saw Stefano as Assunta’s caregiver and relied on him for background information. None of them raised any issues about Stefano unduly influencing Assunta. I have already found that she had capacity at the relevant times. While she suffered from confusion when her blood sugar levels or medications became unbalanced, she recovered quickly and regained her ability to make decisions.

177The Plaintiff’s counsel suggested that the long delays between the meeting with Mr. Boiani and the assessment by Dr. Marotta (8 months) and the delay between the first meeting with Mr. Colavita and the signing appointment (4 months) were attributable to Assunta changing her mind about her intentions or Stefano having to exert pressure on her over time. None of these suggestions are borne out by the evidence. There was no evidence given about why it took so long to obtain the assessment appointment with Dr. Marotta. Dr. Marotta is a busy and experienced practitioner. Such delay could reasonably be explained as normal for an appointment of that nature.

178As for the delay between the initial appointment with Mr. Colavita and the signing appointment, much of that was due to the delay in receiving Dr. Marotta’s opinion. Mr. Colavita followed up numerous times but did not actually receive the assessment (dated June 28, 2016) until September. There was some evidence that Dr. Marotta had been away during the summer of 2016. However, very shortly after receipt of the assessment Assunta and Stefano came back to see Mr. Colavita on October 6, 2016. This timing does not appear to be out of the ordinary. That is, the delays are reasonably explained and there was no evidence that they were attributable to any resistance by Assunta to the process.

179As per Kavanaugh, Assunta was made aware that she was disenfranchising her siblings by making a new Will. She was specific with Mr. Colavita that this was because she was unhappy with them, and they had already received their share of her Estate. She did not completely forget about her family. Her 2016 Will set out a detailed distribution of the residue of her Estate in the event that Stefano predeceased her. This included dividing her Estate into 6 equal parts, 5 of which was to go to various nieces and nephews and the remaining part to Guiseppe.

180Mr. Colavita was aware of who was being “cut out” of the 2016 Will as he had a copy of the 2008 Will from Ms. Agueci. Mr. Colavita was asked in cross-examination if he asked Assunta if she had told the rest of her family what she was doing. He said no but he did not feel the need to enquire further because she had made up her mind after two interviews with Mr. Colavita. Given my finding that Assunta had capacity at the relevant time and Mr. Colavita’s professional assessment that Assunta knew the effect of her decisions, there was no reason for him to make further enquiries with extended family.

181In closing submissions, counsel for the Plaintiff described Assunta as a “captured bird” whose every move was monitored by Stefano and who was rarely permitted to be alone with other family members. This is not borne out by the evidence of either Franco or Frank who told the Court that they continued to visit and call their sister/aunt after Giovanni’s death. While Frank suggested he was given the “cold shoulder” by Stefano after Giovanni’s death, he did not say that Stefano interfered with his relationship with his aunt. Using the term “captured bird” for Assunta is misplaced and does not give credence to the independence and free will she exhibited until her admittance to hospital just before her death at the end of October 2016.

182Given all of the above, I am persuaded by both the argument of counsel for the Defendant and the underlying facts as found that there was no undue influence in this case. Assunta knew the consequences and effect of changing her Will which she did of her own volition and without pressure or influence from Stefano.

Issue #3 – The Counterclaim

183In his Counterclaim, Stefano seeks to have Franco repay the funds transferred on June 9, 2014 to Assunta’s Estate. As will be set out below, this claim must be dismissed.

184Ms. Tiralongo was a credible and forthright witness concerning the impugned transfer on June 9, 2014. She was criticized by the defence for having made additions to her evidence that were not found in her statutory declaration dated July 18, 2018. Notably, those additions included the reference to the funds coming from Assunta’s deceased husband’s blood, the description of Stefano from Assunta as being lazy and unemployed, and her statement that in 2015 Stefano stormed into her office and threatened to sue her over the impugned transfer.

185She was asked how she could recall all of these details without having made notes and after only a 25-minute interview over eight years ago. I accept Ms. Tiralongo’s evidence that the interview stood out because Assunta was emotional and teary.

186She was asked why she did not make further enquiries of Assunta with respect to her reasons for the transfer, the contents of her Will, whether she had other siblings or whether she would have enough money left in the event she needed care given her age. Ms. Tiralongo was adamant that she was certain that Assunta knew exactly what she was doing and that she understood that once the transfer was done, that it could not be undone.

187There are, however, many allegations related to the impugned transfer that do not make sense including the following:

a. Assunta’s 2008 Will already divided her Estate amongst her siblings and the Venneri brothers – why single out Franco and Fiorenza for more?

b. Why give away the bulk of her liquid assets when she was elderly and had already experienced medical difficulties?

c. How did the allegations of the misuse of the POA come about? Assunta mentioned this during her interviews with Dr. Marotta and Mr. Colavita yet there was no evidence that a POA had ever been used for the transfer. Stefano agreed this was the case.

d. If Franco did take the money out without Assunta’s knowledge but for safekeeping, why would he not have given some back when she needed it to buy a car?

e. Why would Franco and Fiorenza have opened a joint account at CIBC rather than each receiving a cheque to deposit in their own respective accounts?

f. Why did Franco leave his share in the joint account until after Assunta’s death unless it was intended for safekeeping as alleged?

g. There was no evidence from Fiorenza to corroborate Franco or Ms. Tiralongo’s version of events. The Counterclaim is made against Franco yet it is clear that Fiorenza was a joint recipient of the impugned transfer.

188Compounding the various allegations is Stefano’s evidence that Assunta did not know about the transfer until May 2015 when he went to the bank to enquire why she had not received a T5 for GIC accounts and his denial that he ever threatened to sue the bank.

189There is also Franco’s evidence that the transfer was always intended to be a gift which Assunta wanted him to have before she died, that he had never used the 2005 POA, that he never told his sister he was holding the money for safekeeping, and he never had a conversation with anyone about a request to use some of that money for a car.

190In short, while I believe Ms. Tiralongo’s evidence it is difficult to reconcile it with the evidence of Stefano, Franco and the statements made by Assunta to Dr. Marotta and Mr. Colavita.

191All of the parties agree that the money was transferred but they do not agree why. There is no reason to make that determination. Either it was a gift, or it was not. Either way, part of Assunta’s Estate had already been disposed of and she wanted to make a new Will to rebalance matters as a result. If she was wrong about the reasons for changing her Will, that does not mean she did not have the capacity to change it and transfer the Home.

192I agree with Dr. Marotta’s view that the reason for the transfer was not what was important. The important issue was that she wanted to change her Will to ensure that her Estate was distributed fairly in the circumstances. Even if she was wrong about those circumstances, she was still capable of making the change and she understood the implications of doing so.

193Given all of the above, I find that the impugned transfer need not be undone. The Counterclaim is therefore dismissed.

ORDERS

194Given all the above I make the following Orders:

a. The Plaintiff’s Claim is dismissed. As such, any issues related to Occupation Rent or the No Contest clause are not required to be addressed by this Court.

b. The Defendant’s Counterclaim is dismissed.

c. The parties are to provide written costs submissions of no more than five pages exclusive of any Bill of Costs or Offers to Settle, as follows: the Defendant by ­December 23, 2022, 2022, the Plaintiff by January 6, 2023 and any reply by the January 13, 2023. All costs submissions are to be uploaded to Caselines. If no costs submissions are received within 35 days of the date of this judgment, costs shall be deemed to be settled.

195As both parties’ claims were dismissed, I encourage counsel to come to a resolution on costs.

196The Defendant’s counsel may provide a revised and approved draft judgment for my review and signature.

C. Gilmore, J.