Court File and Parties
COURT FILE NO.: 28441/20 DATE: 2023-10-20 ONTARIO SUPERIOR COURT OF JUSTICE
In the Estate of Wanda McLaughlin (nee Nowiski), Deceased
BETWEEN:
CHARLOTTE LORRAINE MCLAUGHLIN, referred to in the will as Charlotte Hawkins Applicant – and – VALERY MICHELLE NEIL, referred to in the will as Valery Neil Defendant
Counsel: Self-Represented (for the Applicant) Paul A. Johnson, for the Defendant
HEARD: September 29, 2023
gareau j.
Reasons for Decision on Application
Introduction and Background
1Before the court is a notice of application dated August 12, 2020, brought by Ms. McLaughlin against Ms. Neil for various claims for relief.
2The issues on the application that were argued before the court on September 29, 2023, are as follows:
(a) The validity of a codicil made by the late Wanda McLaughlin on September 11, 2013; (b) Requirement to pass accounts under a Power of Attorney; (c) Accounting with respect to estate assets and debts.
3The applicant and the respondent are sisters and daughters of the late Wanda McLaughlin, who died on July 23, 2018. Both the applicant and the respondent are named in Wanda McLaughlin’s last will and testament dated March 10, 2005, and her codicil dated September 11, 2013.
4In the last will and testament dated March 10, 2005, the respondent is named as the estate trustee and along with the applicant the equal beneficiary of the residue of the estate of Wanda McLaughlin. In the subsequent codicil dated September 11, 2023, the residue provision in the will of Wanda McLaughlin is revoked and the residue is divided in ten equal shares with the respondent receiving nine shares and the applicant receiving one share.
5The applicant confirmed with the court on the hearing of the application that she takes no issue with the will dated March 10, 2005, but takes the position that Wanda McLaughlin did not have capacity to make her codicil due to dementia and cognitive difficulties.
Validity of the Codicil
6With respect to the challenge to the codicil, the onus is on the applicant to convince a court on a balance of probabilities that Wanda McLaughlin did not have capacity to make a testamentary document at the time she made her codicil in September 2013.
7Both the will and the codicil were prepared by Lorna Rudolph who was called to the Ontario Bar in 1971 until her retirement. At the time the late McLaughlin made her will and her codicil, Ms. Rudolph was an experienced lawyer who had practiced law for a number of years. The codicil is noted to be executed by two witnesses, Lorna Rudolph and Linda Yeo. The affidavit of Linda Yeo sworn on September 11, 2013 confirms the proper execution of the codicil by Wanda McLaughlin. The applicant takes the position that at the time of the making of the codicil that there were assets named in the will such as the Chevy Blazer and Nissan truck which no longer existed and this was not mentioned in the codicil which, the applicant contends, draws suspicion about the capacity of the testator. I do not find this argument persuasive. The codicil only intends to change the residue disposition and not specific bequests so there would be no need to mention specific bequests in the codicil. I would be more concerned if the testator had made bequests of specific items in the codicil which did not exist, which would reflect adversely on the testator’s capacity, but we do not have this in the codicil made by Wanda McLaughlin. Lorna Rudolph was an experienced lawyer at the time the codicil was made. It would not be inappropriate to assume that Ms. Rudolph made all the necessary inquiries to satisfy herself that Wanda McLaughlin could provide her with instructions and had capacity to make her codicil at the time it was made in September 2013. There was no affidavit evidence provided by the applicant, either from Lorna Rudolph or Linda Yeo, as to the testator’s capacity or the instructions provided by her at the time her codicil was prepared and executed to rebut this assumption.
8The record does not contain the clinical notes and records of various physicians that treated Wanda McLaughlin throughout the years, and, in particular, around the time she made her codicil in 2013. On January 28, 2013, the testator consulted with Dr. Mir Shafree who noted that Wanda McLaughlin had a potential diagnosis of dementia but Dr. Shafree also noted that Wanda McLaughlin was taking multiple medications that could cause confusion, including hydromorphone, and in the end, the physician made some modifications to the medications that Ms. McLaughlin as taking.
9Wanda McLaughlin was seen by her family physician, Dr. Carolyn Kuntz, on February 28, 2013. The physician’s clinical notes reveal that she observed Wanda McLaughlin to have poor short-term memory but did not suffer from any confusion and her long-term memory was good. Dr. James Curran treated Wanda McLaughlin for a urinary tract infection. His Sault Area Hospital note dated May 14, 2016 states that “she is oriented”. Dr. Maloney who treated her for a fractured pelvis notes in May 2016 that Ms. McLaughlin “lives at home in community with CCAC support. She lived with her daughter and son-in-law. She is usually independent with a walker. She is independent in terms of toileting. She dresses herself. She does require some assistance with independent ALL. She has poor short-term memory.” The Sault Area Hospital internal medicine consultation note dated March 30, 2015 notes, “no discrete confusion at home”. Various medical reports from the Sault Area Hospital in 2013 do not comment on or find any mental incapacity for Wanda McLaughlin. The report from Dr. Frances Leung to Dr. Carrie Kuntz dated January 11, 2014 notes that “she is oriented and was able to give a reasonable history. She does not look confused. her emotion is appropriate.” Dr. Leung’s further report to Dr. Kuntz later in 2014 (September 21, 2014) observes that “she appears to be comfortable but suffers from short-term memory. She appears to be managing and spends much of her time doing word searches.”
10It is clear from the medical that the condition of Wanda McLaughlin worsened over time and by 2016 it was noted more often that she was confused. in particular, the notes of Dr. Fratesi dated December 12, 2016 states that “Today she is less confused than last night, but she does have some senile dementia, cognitive impairment.” The clinical note from the Group Health Centre dated March 15, 2018 describes Wanda McLaughlin as follows, “The patient is a 85 year old female with dementia and associated seizure disorder as well as other significant comorbidities including heart disease, chronic kidney disease, history of pulmonary emboli, DVT and type 2 diabetes.”
11From 2016 to 2018 both the physical and mental health of Wanda McLaughlin had deteriorated significantly. By July 3, 2018 the notes at the Group Health Centre indicate a discussion of palliative care “with end stage dementia”. Ms. McLaughlin died shortly after that, on July 28, 2018.
12The medical information that is part of the record reveals that the testator’s health subsequent to Dr. Kuntz’s findings in early 2013 remained consistent in 2013 and at the time she executed her codicil until around 2016 when she is consistently described as “confused” by the various physicians that were treating her for the various health difficulties that she was experiencing. On April 29, 2015, Wanda McLaughlin was assessed with the standardized Mini Health Status exam by the Alzheimer’s Society. One result of that test showed that Ms. McLaughlin had “mild cognitive impairment”. That was one and a half years after the testator made her codicil.
13The medical evidence simply does not support the claim that Wanda McLaughlin did not have the requisite capacity required in September 2013 to provide instructions for and to execute a codicil making amendments to her last will and testament. There is no reliable medical evidence that the testator’s ability to understand or that her reasoning was impaired in 2013 when she made the codicil. Ms. McLaughlin may have had some confusion, some early signs of dementia and some short-term memory difficulties, but these do not rise to the level whereby she did not have the capacity to make the codicil in September of 2013. It is very cogent evidence that the testing done by the Alzheimer’s Society in 2015, sometime after the codicil was made, showed that she only had mild cognitive impairment.
14Around the time that Wanda McLaughlin made her codicil she was operating in her capacity, making decisions on her own without another person acting as her attorney under a power of attorney. As an illustration of this fact, Wanda McLaughlin on April 7, 2014, some seven months after making her codicil, sold her joint interest in real property civically known as 41 Hughes Street, Sault Ste. Marie, Ontario. A power of attorney was not invoked to complete these transactions. Wanda McLaughlin was competent enough to act in her own capacity to transfer this property, which, in my view, supports the contention that she was competent at the time she executed her codicil, some seven months earlier.
15On the totality of the record and on the evidence before me, I am not satisfied that the applicant has met her onus to establish on a balance of probabilities that Wanda McLaughlin did not have the mental capacity to provide instructions for or execute the codicil dated September 11, 2013. Therefore, the applicant’s claim that the codicil be declared invalid due to the mental incapacity of Wanda McLaughlin is dismissed.
Passing Accounts under the Power of Attorney
16With respect to the request that the respondent pass accounts under the power of attorney, this matter was adjudicated on as a result of an interim motion brought by the applicant. In a written decision released by the court on October 28, 2020, at paragraph 9 the court states as follows:
As to the various accountings requested by the applicant from the respondent, my view is that a sweeping accounting from 2012 by the respondent is not appropriate given the passage of time and the fact that the respondent has deposed in her affidavit sworn on October 9, 2020 that she did not act under the power of attorney until the health of Wanda McLaughlin declined in February 2018. In my view, it is appropriate for the respondent to provide an accounting of monies received and disbursed and assets disposed for the year 2018, which covers the time the respondent acted as attorney until Wanda McLaughlin’s death on July 23, 2018. This accounting shall be provided by the respondent to the applicant by February 1, 2021.
17The court is advised by counsel for the respondent that this accounting has been provided to the applicant as ordered by the court. Therefore, this claim by the applicant has been satisfied.
Accounting of Estate Assets and Debts
18With respect to the accounting requested by the applicant with respect to the estate assets and debts, the court is advised by counsel for the respondent that Ms. Neil has already informally passed accounts of her management of the Estate of Wanda McLaughlin and has already provided details of the assets and debts of the estate and details of the sale of real property that were sold prior to the death of the testator. The assets of this estate are modest, totaling no more than $15,000. The difference in the applicant receiving her share of the residue of the estate, either under the terms of the will or the codicil is not great. Any further accounting with respect to the estate other than that which has already been provided by Valery Neil is, in my view, not required and an effort that is grossly disproportionate given the modest amount of the estate.
19Viewing this whole unfortunate situation on the totality of the evidence, it is not particularly difficult to understand why Wanda McLaughlin might want to make changes to her will to adjust the division of the residue of her estate in favour of the respondent. It was the respondent who was assisting her daily needs and activities and the evidence is clear that as time went on, especially from 2016 onward, that Wanda McLaughlin needed increased assistance as she was getting older and her medical needs were increasing. It was Valery Neil who resided in Sault Ste. Marie, Ontario and was able to assist her mother. This was not because Wanda McLaughlin was estranged from the applicant but rather the practicality of Ms. Neil being onsite and Charlotte McLaughlin not residing in Sault Ste. Marie, Ontario. As the applicant indicated while making submissions to the court on the application, she has not lived in the Algoma District since 1996, having resided in Pickle Lake and Geraldton, Ontario, and since 2013, in Ottawa, Ontario. Simply put, the applicant didn’t have the opportunity to care for her mother as she lived away from her. On the other hand, the respondent lived nearby and had the opportunity to care for her mother and meet her needs. More likely than not this is reflected in the amendment to the will of Wanda McLaughlin by way of the codicil executed on September 11, 2013 rather than the codicil being entered into by the testator due to a lack of capacity on her part.
Disposition
20For the aforesaid reasons, the application brought by Charlotte Lorraine McLaughlin against Valery Michelle Neil is dismissed.
Costs
21If costs are in issue, the parties are at liberty to file written submissions on costs not to exceed five typewritten pages, excluding bills of costs and offers to settle, which is to be served and filed by 4:00 p.m. on December 1, 2023.
Gareau J.
Released: October 20, 2023