Court File and Parties

COURT FILE NO.: CV-21-00001025-0000

DATE: 2022-12-14

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Kelly Lynn Francella, Applicant

AND:

Kathryn Tokarz, in her capacity as the Estate Trustee of the Estate of Janis Ena Scott, Anthony Edward Stackhouse, The Humane Society of Canada, BMO Life Insurance Company, Assurant Life of Canada, The Estate of Leanne Hinnegan, Respondents

BEFORE: Justice V. Christie

COUNSEL: Karen J. Hagman, Counsel for the Applicant

No one else appearing even though properly served, although Ms. Hagman also appeared as agent for counsel Sean Lewis for Assurant Life of Canada

HEARD: December 13, 2022

ENDORSEMENT RE VALIDITY OF WILL

Overview and Facts

[1] This application relates to a somewhat unique set of circumstances. There is a written Will. No one is propounding that Will. This is an uncontested Will challenge brought by the deceased’s daughter, Kelly Lynn Francella. The estate is barely over the small estate cut- off amount.

[2] All necessary parties have been served, as confirmed by the Order of Speyer J. dated February 8, 2022, however, no responding materials were served or filed and no Respondents were represented at the hearing, with the exception that counsel for the Applicant agreed to appear as agent for counsel, Sean Lewis, who represents Assurant Life of Canada. Assurant takes no position on this application.

[3] The Last Will and Testament at issue is one that is dated February 22, 2019, and purports to leave the entire estate to The Humane Society of Canada, a charity that is no longer operating. Beyond challenging this Will, the Applicant also challenges any other testamentary dispositions made by the deceased, including a beneficiary designation made on a life insurance policy in February 2018.

[4] A brief summary of the facts will provide some context to this application.

[5] It would seem that the deceased, Janis Ena Scott, suffered from depression throughout her life. In a letter dated December 19, 1994, from Dr. John Warren, psychiatrist, directed to the Ministry of Community and Social Services, there is some indication of conditions Ms. Scott was suffering from at that time. The letter stated in part as follows:

I made a diagnosis of major depressive episode and recurrent unipolar depression. The episode had apparently been precipitated by some circumstantial difficulties, but then, as was the case many years ago, the syndrome began to take on a life of its own…..After the initial assessment, I have seen Ms. Scott on the average every two or three weeks during 1994….In the last six months, however, she has become depressed again and, considering the fact that she has never really been symptom -free since the fall of 1992, she now qualifies for the diagnosis of dysthymic disorder (chronic neurotic depression)

[6] The deceased also had a history of chronic use of Lorazepam and opiates.

[7] On November 2, 2012, the deceased was involved in a motor vehicle accident which resulted in several medical issues, including a serious brain injury.

[8] As a result of the injuries sustained in the accident, the deceased commenced litigation. Because Ms. Scott was considered a party under disability in the litigation, she required a Litigation Guardian, a role that was filled by her friend, Leanne Hinnegan. The litigation resulted in Ms. Scott receiving a Structured Settlement in the amount of $150,000, which was payable in monthly installments commencing December 15, 2018, and ending on December 15, 2026. Pursuant to the Judgment, Ms. Hinnegan was to receive the monthly Structured Settlement payments for the benefit of Ms. Scott during her lifetime, with such payments to be paid to the deceased’s Estate upon her death.

[9] On February 3, 2018, the deceased applied for and obtained a $10,000 life insurance policy through Assurant that designated Ms. Hinnegan as the sole beneficiary. At that time, Ms. Hinnegan was still the deceased’s Litigation Guardian and substitute decision-maker.

[10] In February 2019, the deceased saw two different lawyers to prepare Power of Attorney documents and wills in a matter of two weeks. Kathryn Tokarz, the daughter of a neighbour, took the deceased to these lawyers. Ms. Tokarz appears to have been deeply involved in this estate planning. It is of note that:

a. Email correspondence between January 28, 2019 and February 5, 2019 shows Ms. Tokarz as the main contact and person providing instructions to Cesia Green, the lawyer involved at that point. The instructions include the appointment of Ms. Tokarz as the attorney for property, and instructing that the Structured Settlement was to go to a charity. This will was never executed.

b. Two weeks later, Ms. Tokarz assisted the deceased in preparing the Will at issue in these proceedings, along with Powers of Attorney. The will was prepared with counsel, David Lucenti, and executed on February 22, 2019. The Power of Attorney documents appoint Ms. Tokarz as the sole attorney for property and personal care. The Will appoints Ms. Tokarz as the Estate Trustee, leaves her $5,000 in lieu of any compensation, and leaves the residue of the Estate to The Humane Society of Canada. The Applicant was specifically excluded on the basis that there was no relationship between the two. There was no mention of Mr. Stackhouse, the deceased’s son.

[11] The deceased met with another lawyer in the Fall of 2019 to make a new Will and Powers of Attorney. At that time, a capacity assessment was discussed, but never occurred. Nothing was prepared at that time.

[12] Also in the fall of 2019, the deceased made inquiries about changing the payments from the Structured Settlement to be made to her directly. However, in order to do this, she would have been required to undergo a capacity assessment, which she refused. As such, the payments continued to be received by Ms. Hinnegan.

[13] According to the Applicant, around the time of her death, the deceased was in a lot of pain as a result of injuries sustained in the accident. She suffered from short-term and long-term memory loss and was taking various medications. The deceased, Janis Ena Scott, died on March 10, 2021, at the age of 74 years old. She was survived by her two children, the Applicant, Kelly Lynn Francella, and one of the Respondents, Anthony Edward Stackhouse. Both Ms. Francella and Mr. Stackhouse maintained a positive relationship with their mother until her death.

[14] Further, Leanne Hinnegan died on June 22, 2021.

[15] After the Deceased’s death, Ms. Tokarz took some initial steps to administer the Estate with the February 2019 Will, but shortly after renounced her appointment. This is confirmed in an email to counsel on April 9, 2021.

[16] In an email dated May 28, 2021, Ms. Tokarz wrote to the Applicant stating in part as follows:

This email confirms that I do not believe that Janis was of fully sound mind when she made that last will. She appeared to be in control of her thoughts but in reality she was not thinking clearly due to the brain injury that she had sustained in her accident (otherwise why did the settlement company not allow her to handle her own settlement but insisted that it was distributed to her via a Power of Attorney). She did not know at the time she made that will what the settlement fund consisted of for the car accident that she was involved in. I truly don’t think she would have wanted the total of that settlement to go to the Humane Society and not to her family (you and your brother).

[17] Since Ms. Scott’s death, the Structured Settlement payments have been put on hold pending the appointment of an Estate Trustee. Assurant has not distributed the life insurance proceeds. In fact, no claim has been made for its release.

[18] This is a fairly modest estate, just barely over the threshold of a small estate. It consists of the following:

a. $34,763.82 in bank accounts;

b. $10,000 for the life insurance policy;

c. $105,294.99 for the Structured Settlement

For a total of $150,058.81

Analysis

[19] There is a rebuttable presumption that a testator knew and approved of the contents of a will and had the necessary testamentary capacity. The presumption may be rebutted where evidence of suspicious circumstances exist in:

a. Circumstances surrounding the preparation of the will;

b. Circumstances tending to call into question the capacity of the testator; or

c. Circumstances tending to show that the free will of the testator was overborne by acts of coercion or fraud

Where suspicious circumstances are present, the burden of proof reverts back to the propounder of the will to prove testamentary capacity. The onus of proof is the civil standard of proof on a balance of probabilities.

See: Scott v. Cousins, [2001] O.J. No. 19 (Ont. S.C.J.), para. 39, Vout v Hay, 1995 105 (SCC), [1995] 2 S.C.R. 876, at para. 19, 25 and 27; Roe v. Roe et al., 2022 ONSC 5821, para 7-8

[20] It is the view of this court that the February 19, 2019 Last Will and Testament is invalid. This court has come to this conclusion based on the following factors:

a. There is no propounder of the Will. Ms. Tokarz renounced her appointment and did not file a Notice of Appearance in this proceeding.

b. Ms. Tokarz, the named Estate Trustee in the Will, is clearly of the view that the Will is invalid, as the Testator lacked capacity.

c. There is evidence that the deceased lacked capacity since at least 2012 when she sustained a brain injury in a motor vehicle accident, and perhaps even prior. In the litigation in relation to the accident, Ms. Scott was required to have a Litigation Guardian, as well as an attorney / guardian of property to make financial decisions on her behalf, including receiving the payments on the Structured Settlement.

d. It is suspicious that the deceased would appoint a neighbour’s daughter to assist her with the preparation of the estate planning, and that this person became the sole attorney for property and personal care for the deceased and appointed as Estate Trustee. This was not a person known to the Applicant until after her mother’s death.

e. It is suspicious that the deceased would specifically exclude her daughter from the estate given their relationship, and not mention her son at all.

f. The Humane Society’s registration as a charitable organization was revoked in 2015.

g. It does not appear that Ms. Hinnegan’s estate is asserting any interest in the proceeds of the life insurance policy.

h. It seems clear that the deceased was incapable to make financial decisions and make testamentary distributions at the time she applied for the life insurance policy.

[21] In these circumstances, it only seems reasonable that the Court has the authority to hold that the Estate be distributed on an intestacy. Again, it is of significance that no one has sought to propound the Will. Ms. Tokarz commenced steps toward administering the Estate and then renounced in April 2021, specifically, “to allow the family to move forward in contesting the Will”. Even in the face of this challenge by the Applicant, no one has appeared to oppose the application. Further, as stated above, the evidence shows suspicious circumstances on a balance of probabilities, especially in the face of the deceased’s documented and known brain injury.

[22] Finally, given that the value of this Estate is barely over the small estate threshold, it is the view of this court that the process for probate of a small estate may be used. The Rules of Civil Procedure provide in Rule 1.04(1.1):

In applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.

It is the view of this court that allowing this matter to proceed as a small estate, given that it is $58.81 over the threshold, would be proportionate and just in the circumstances.

[23] For all of the foregoing reasons, this court orders as follows:

a. A declaration that the Last Will and Testament dated February 22, 2019 of the late Janis Ena Scott is invalid;

b. A declaration that any other testamentary instruments executed by the Deceased between November 2012 and the date of death on March 10, 2021 are invalid;

c. A declaration that the Deceased died intestate;

d. An Order that the Estate be distributed equally between her children, Kelly Lynn Francella and Anthony Edward Stackhouse, in accordance with the Succession Law Reform Act, R.S.O. 1990, c. S. 26, as amended;

e. An Order that the Applicant, Kelly Lynn Francella, shall be and is hereby appointed as the Estate Trustee of the Deceased’s Estate without a Will pursuant to Section 5(1) of the Trustee Act, R.S.O. 1990, c. T.23, as amended;

f. An Order that a Small Estate Certificate of Appointment of Estate Trustee without a Will shall be issued to the Applicant, Kelly Lynn Francella, on an expedited basis, without security, subject to the filing of the necessary supporting materials, pursuant to Rule 74.1 of the Rules of Civil Procedure. R.R.O. 1990, Reg. 194 and subsection 36(3) of the Estates Act, R.S.O. 1990, c. E.21, as amended;

g. An Order and direction that the Respondent, Assurant, shall pay any applicable life insurance proceeds currently held by it in respect of the life insurance policy bearing policy number 2021277326 to the Applicant (in her capacity as Estate Trustee of the Estate of Janis Ena Scott);

h. An Order that there shall be no costs payable as between the Applicant, Kelly Lynn Francella, and the Respondent, Assurant;

i. An Order that the costs of the application shall be paid from the Deceased’s Estate and fixed in the amount of $32,893.49, all inclusive.

Judgment as signed.

Justice V. Christie

Date: December 14, 2022