Court File and Parties

COURT FILE NO.: CV-23-06 DATE: 20240226 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Rhonda Salmon Applicant – and – TARA ELSIE ROMBOUGH, SHANNON ROMBOUGH, CHRISTOPHER JARVIS JR., JENNA JARVIS-MCLAREN, NICHOLAS MCLAREN, HEATHER MCLAREN, ADAM MCLAREN, GARSON WHITFORD, CRYSTAL WHITFORD, WAYNE SALMON, BESSIE SALMON, LARRY ROMBOUGH, ONTARIO FEDERATION OF ANGLERS & HUNTERS, UNIVERSITY OF OTTAWA HEART INSTITUTE Respondents

Counsel: Eldon Horner and Kristen MacDonald, for the Applicant Mark Pedersen, for the Respondent Christopher Jarvis Jr.

HEARD: January 29, 2024

Before: Leroy, J.

Reasons for Judgment

[1] Mr. Rombough, with assistance of counsel, made a properly executed and witnessed will on April 14, 2012.

[2] Mr. Rombough died on January 15, 2022. The Applicant found a bound notebook in Mr. Rombough’s desk drawer a week or so after his death. The Applicant contends that the content of this notebook is an authentic record of Mr. Rombough’s deliberate fixed and final expression of intention as to the disposal of his property on death and applies for an order of this Court that this document is as valid and fully effective as the will of the deceased, as if it had been properly executed or made.

[3] The document propounded by the Applicant is comprised of excerpts from the 2012 will photocopied and pasted into the notebook together with handwritten annotations. This document is signed at the end and dated December 31, 2021. It does not comply with the required formalities of execution.

[4] Section 21.1(1) of the Succession Law Reform Act came into force on January 1, 2022. Garnet Rombough was resident in the Township of South Stormont in the Province of Ontario when he passed on January 15, 2022.

[5] It provides as follows:

21.1 (1) If the Superior Court of Justice is satisfied that a document or writing that was not properly executed or made under this Act sets out the testamentary intentions of a deceased or an intention of a deceased to revoke, alter or revive a will of the deceased, the Court may, on application, order that the document or writing is as valid and fully effective as the will of the deceased, or as the revocation, alteration or revival of the will of the deceased, as if it had been properly executed or made.

[6] This remedial enactment represents a change to pragmatism in the administration of estates in this province. It is a departure from the traditional principles of formalism that previously governed the creation, alteration and revocation of wills in Ontario.

[7] This authority is not the basis for upholding a will that is invalid for substantive reasons such as testamentary incapacity or undue influence.

[8] The issues raised in this application are:

a. The applicant is seeking an order and the Respondent denies an order should issue from this Court that the testamentary document of the deceased, Garnet Earl Rombough, dated December 31, 2021 (the 2021 will) be deemed a valid will or codicil pursuant to section 21.1 of the Succession Law Reform Act; b. The applicant affirms and the respondent denies that the deceased had testamentary capacity on the date of execution of the 2021 will; c. The respondent affirms and the applicant denies that there were suspicious circumstances surrounding the preparation and/or execution of the 2021 will; d. The respondent affirms and the applicant denies that the 2021will was procured by undue influence; and e. The respondent affirms and the applicant denies that the 2021 will is the product of fraud and/or forgery.

[9] It is uncontested that the Applicant bears the burden of proving document authenticity, the requisite intention, knowledge and approval of content and testamentary capacity. The evidence relevant to these issues overlap.

[10] When a will is properly executed and witnessed, there is a rebuttable presumption in favour of testamentary capacity, knowledge and approval of the content. When the will does not evidence the required formalities or there are proven suspicious circumstances, the Applicant does not have the benefit of these presumptions. That said, the want of presumption does not presume lack of testamentary capacity, disapproval of content or lack of understanding; rather the burden of proving capacity and knowledge to a standard of more likely than not is on the proponent.

[11] Rulings in relation to similar legislation in other provinces note that the authority conferred by subsection 21.1(1) is clear; how the authority ought to be exercised is not. It is an intensely fact-driven analysis.

Evidence

[12] Garnet Earl Rombough, herein Garnet was a retired police officer. He was raised in Ingleside and retired to Gallingertown, a small hamlet on County Road 18 north and west of Ingleside where he and his long-time common-law spouse, Connie built their retirement home in the year 2000. Garnet was afflicted with heart failure through his adult life, as is his brother Larry. They were childless. The Salmon family resided across the street.

[13] The Respondent Christopher Jarvis is Connie's nephew. Connie died in 2012. Before her death, she was the catalyst for McLaren extended family relations. The 2012 will was executed shortly after Connie died.

[14] Garnet's 2012 will appointed Wayne, Bessie and Rhonda Salmon as his estate trustees and distributed his estate as follows:

• $5,000 to Wayne and Bessie Salmon for the care of his pets
• $15,000 to Wayne, Bessie and Rhonda Salmon equally
• $1,000 to the Ontario Federation of Anglers and Hunters
• $1,000 to the Ottawa Heart Institute
• residue equally divided among his niece Tara Rombough, niece Shannon Rombough, Connie's nieces and nephews Christopher Jarvis, Jenna Jarvis-McLaren, Nicholas McLaren, Heather McLaren, Adam McLaren and one share to his close friends Garson Whitford and Crystal Whitford.

[15] At or about the same time, Garnet designated the Whitford's daughter Gracie as beneficiary of his life insurance proceeds.

[16] Garnet's 2021 testamentary document appointed Wayne, Bessie and Rhonda Salmon as his estate trustees and made the following gifts:

• $1,000 to the Ottawa Heart Institute
• $5,000 to Wayne and Bessie Salmon to care for his pets
• $10,000 to each of Tara Rombough, Shannon Rombough, Christopher Jarvis Jr., Jenna Jarvis-McLaren, Nicholas McLaren, Heather McLaren and Adam McLaren
• His home to Rhonda Salmon, noting the property is debt free with no monies owing
• He instructed that the auction sale proceeds to go onto the estate
• He did not alter the residual gift to the Whitfords

[17] The estimated estate value including the home valued at $535,000 is $861,360. The tone of the alteration in quantitative distributive values suggests a qualitative change in Garnet's relationship valuations.

[18] Affidavit evidence for the application were deposed by Victoria Gauvreau, bank manager confirming Garnet's signature, Rhonda Salmon, Bessie Salmon, John Horil, Krystal Whitford, Garson Whitford.

[19] Affidavit evidence for the Respondent included Christopher McLaren - Connie's brother, Christopher Jarvis, the Respondent, Larry Rombough - Garnet's brother and Shannon Rombough, Larry's daughter.

[20] The bank manager of the branch where Garnet banked confirmed that the handwriting and signatured portion of the propounded document is in Garnet’s handwriting.

[21] It is uncontested that Garnet was in a weakened condition resulting from heart failure through his adult life and particularly during 2021. He was hospitalized for five or six weeks at the Heart Institute in July 2021. On discharge, he returned home to live independently until days before he died. Garnet's extensive medical records were produced to the Respondent. There is no mention of concern for onset of dementia or poor judgment.

[22] Garnet was known for notetaking and diarizing. He kept detailed diaries of his medical history and vehicle maintenance. The content of the last two pages of exhibit "B" to Rhonda Salmon's reply affidavit are basic computer commands suggesting that Garnet was in the early stages of learning how to operate a computer.

[23] It is uncontested that Garnet took extreme precaution to avoid contracting Covid 19. He stayed within the neighbourhood bubble except for medical appointments.

Respondent's Evidence

[24] Counsel for the Respondent suggested that this case will turn on presumptions. The Respondent's witnesses express concerns without supporting evidence. The respondent's argument is that the Applicant has not proven testamentary capacity, authenticity of the document or that Garnet knew and approved of the document's contents.

Chris McLaren - Connie's brother

[25] Garnet's relationship with Connie's extended family remained cordial for the almost ten years after Connie died; however, they drifted apart. Neither of Christopher nor Garnet did much travelling through that time. Christopher confirmed two brief in-person contacts over the ten years. Garnet did not visit them. They may have talked by phone every 2-3 months.

[26] He expressed the view that knowing Garnet and his careful and meticulous approach to serious matters in his life, he was highly sceptical that Garnet would execute a document of the sort the applicant seeks to probate. It is Christopher's belief that the propounded document is the product of fraud. If not fraud, then Garnet lacked testamentary capacity. In Christopher's opinion the Garnet he knew from ten years ago would have at the very least called a lawyer to discuss the manner in which he could execute a new will at home without formality. He opined that the document looks like something a 4- year-old would Mickey-Mouse together.

Christopher Jarvis Jr.

[27] Mr. Jarvis is Connie's nephew. He too, expressed the view that knowing Garnet and his careful and meticulous approach to the serious matters in his life, he was highly sceptical that Garnet would execute a document of the sort the Applicant seeks to probate. He too, verily believes that the propounded document is the product of fraud. It is his opinion that the rudimentary document is incongruent with the way Garnet lived his life. If it is not the product of fraud, Garnet was suffering from a lack of testamentary capacity when he crafted it for the same reason. The product is out of character. Mr. Jarvis could not point to medical or other indication of symptoms of dementia or cognitive deficiencies while Garnet was alive.

[28] Mr. Jarvis suggested that Garnet's comment about having searched the house for two days looking for the legal description for insertion in the document was indicative of dementia onset entirely inconsistent with Garnet's passion for organization. Mr. Jarvis thought that Garnet would have a special storage location in the home for important documents such as his deed.

[29] Mr. Jarvis knew that Garnet had suffered from heart-related issues through his adult life. He knew that Rhonda assisted Garnet and that he and Wayne maintained daily contact. He knew that Garnet lived independently until his last days. Mr. Jarvis recognized that Garnet was capable through his life - he posited that Garnet lost testamentary capacity in the last year of his life.

[30] Mr. Jarvis confirmed that contact with Garnet dropped off when he was fourteen in 2000 coincident with Garnet and Connie moving to Ingleside and then precipitously after Connie died in 2012. He might have talked with Garnet on the phone twice annually in those ten years. Mr. Jarvis never sent special occasion cards to Garnet; Garnet sent birthday cards their way. There was in-person contact in 2018 when the family buried their grandmother and none since.

[31] Mr. Jarvis learned of Garnet's hospitalization in July 2021 from Wayne. Covid restrictions explain why Mr. Jarvis did not visit Garnet during that hospitalization. Mr. Jarvis did not phone Garnet at the time.

[32] On the other hand the Salmons maintained close daily contact.

Larry Rombough

[33] Larry is Garnet's brother. He went west in his twenties and stayed. He is afflicted with similar heart function deficits to Garnet's experience. Travel is a problem because necessary sitting exacerbates his condition. His last in-person contact with Garnet was before Connie died. He said he and Garnet stayed close by phone. He agreed that the municipal locations identified in the 2021 document were accurate. He talked with Garnet four times in the last two weeks of Garnet's life. Larry understood that Garnet was "putting everything in order". Larry agreed that Garnet was of sound mind when he last talked with him. Larry agreed Garnet was not suffering from dementia or diminished cognition. He agreed that he knew of no legal reason Garnet could not change his will. In that context, he posited that the 2021 document is either Garnet's or Rhonda's.

[34] Larry asserted that the 2021 document was not written by Garnet because Garnet in his life wrote with perfect punctuation and the document was flawed. Larry acknowledged that he doesn't know what perfect punctuation is.

Shannon Andruchiw

[35] Shannon is Larry's daughter and Garnet's niece. She expressed the view that knowing Garnet and his careful and meticulous approach to serious matters in his life, she was highly sceptical that Garnet would execute a document of the sort the applicant seeks to probate.

[36] Shannon confirmed that her last in-person contact with Garnet was twenty-five years ago. Such direct contact was by phone. She had received a few Christmas cards while Connie was alive. There was no contact in 2021.

[37] She attached an undated note from years past written by Garnet that included cursive and print writing. There were spelling mistakes, nominal punctuation and Shannon could not make out the pets' names. The cursive and print contained in the 2021 document and the medical diary is indistinguishable.

[38] Shannon confirmed she has no evidence of fraud in the completion of the 2021 document. She acknowledged that the part of her affidavit where she said that if the document is not the product of fraud, I verily believe that Garnet was suffering from a lack of testamentary capacity is untrue.

Summary of Evidence in support of the application

[39] It is important to bear in mind s. 13 of the Evidence Act which provides as follows:

Actions by or against heirs, etc.

13 In an action by or against the heirs, next of kin, executors, administrators or assigns of a deceased person, an opposite or interested party shall not obtain a verdict, judgment or decision on his or her own evidence in respect of any matter occurring before the death of the deceased person, unless such evidence is corroborated by some other material evidence. R.S.O. 1990, c. E.23, s. 13.

Krystal Whitford

[40] Krystal Whitford is a residual beneficiary under the 2012 will version. She resides in the same Gallingertown neighbourhood. She is a registered practical nurse. She was close with Garnet and Connie before Connie died in April 2012. Her daughter was born shortly after Connie’s decease. She said Garnet treated her daughter as his grandchild. He designated the daughter as beneficiary on his life insurance policy. Ms. Whitford feels as though Garnet filled the father role in her life. Ms. Whitford was aware of Garnet’s medical frailty and made a point of calling or stopping in to check on him more than one time weekly. She reported that Garnet recognized the deterioration in his physical health over 2021. He was very worried about Covid risks and what that would mean to his life expectancy. She was familiar with Garnet’s handwriting and confirmed the writing in the subject document was his. She observed and confirmed the extent to which the Applicant and the Salmon family engaged as supportive caregivers. She noted that Connie’s family (the familial Respondents) had little or no contact with him after Connie passed. During her last visit to Garnet’s home in days before Christmas 2021, Garnet told Ms. Whitford of his intention to leave his house to the Applicant. That topic was not something they typically discussed. In her view, based on discussion with Garnet, the document proffered by the Applicant accurately reflects his final intentions. The issue of testamentary capacity did not arise in the circumstances. In her view, he was the same as always.

Garson Whitford

[41] Garson Whitford and Krystal Whitford were spouses through much of the relevant time period. Mr. Whitford is the contractor who built Garnet and Connie’s home. They became fast friends. He and Garnet hunted together. Garnet went to their home every Christmas Day. Garson visited Garnet at least weekly, often staying for upwards of three hours. Garson observed that Garnet treated their daughter Gracie as if she was his own grand-daughter. He confirmed that Garnet left a life insurance benefit to Gracie.

[42] Garnet was familiar with Garnet’s heart-related health issues. Garson recognized that Garnet was concerned about Covid through the Pandemic. Garson said that Garnet stayed home within his bubble except for medical appointments. The result was that through the pandemic Garson made fewer house calls and more phone communications.

[43] Garson talked about his last time with Garnet just before Christmas 2021. Garnet went to Garson’s home bearing gifts for Gracie. Garnet said as he was not feeling well, that he could not stay and did not want to enter the home. Instead, they talked in the garage. Garnet said he would not be visiting on Christmas Day for the same reason. Garnet stayed only a few minutes. They exchanged holiday greetings and Garnet left. Garson called and spoke with Garnet on Christmas Day.

[44] Garnet confirmed the mutual affection between the Salmons and Garnet. He described it as – after Connie died, they became his primary caregivers. He noted that the Applicant was Garnet’s lifeline to the outside through the Pandemic.

[45] Garson too was familiar with Garnet’s handwriting and confirmed the cursive portion of the propounded document was in Garnet's handwriting and the signature was his. Garson referenced a time when he acquired a car from Garnet. Garnet gave Garson a written detailed summary of the vehicle’s maintenance history.

[46] Garson recognized that he and Krystal stood to receive a one-eighth share of the residue of Garnet’s estate under the 2012 will. Garson has reviewed the propounded document and confirmed the handwriting as that of Garnet and that the attentions to detail, including the cutting and pasting is consistent with Garnet’s practices.

[47] Garson believes that if the propounded document is approved as a standalone testamentary document, he will not receive a share of the residue of Garnet’s estate. He said, notwithstanding, it is clear to him that the propounded document represents Garnet’s final testamentary wishes. Garson’s context was that at no time in December 2021or any time before Garnet’s decease, did he observe anything suggesting to him that Garnet was not of sound mind. Garnet never suggested to Garson concern for influence in relation to Garnet’s testamentary intentions.

Bessie Salmon

[48] Bessie Salmon is the Applicant’s mother. She recounts the close relationship between Garnet and the Salmon family. Respondents' witnesses were alert to that close relationship. She and Wayne were central assists when Garnet and Connie moved into their new home in 2000. Garnet and Connie shared Christmas Eve with the Salmons. Bessie was sitting with Garnet at Connie’s bedside when Connie died. They talked with Garnet daily when he was in-patient for six weeks for heart-related treatment through June, July in 2021. When he was released home, the Salmons were either phone checking or visiting Garnet morning and evening. Bessie Salmon recounted how Garnet told her on a couple of occasions that he intended to give his home to the Applicant and he would leave money to the nieces and nephews. She thought his health began to decline again in December 2021. When Bessie visited Garnet on his birthday, December 8, he showed her the same document unsigned that is propounded for probate. Bessie and Wayne Salmon went to the house on January 14, the day before Garnet passed. Bessie observed that Garnet was extremely weak and they called 911. Bessie was familiar with Garnet’s handwriting and confirmed that the written portion of the document before the Court was in his hand writing. Bessie thinks the method Garnet used to craft the document was consistent with his practices. The issue of testamentary capacity did not arise. In her view, he was the same as always. The last substantive paragraph of her affidavit said it well – "We loved and cared for Garnet as if he was part of our family. We know he cared deeply for us as well and appreciated everything we did for him."

[49] Bessie, Wayne and Rhonda anticipated that Garnet would have his wishes formally drawn by Garnet's lawyer.

Rhonda Salmon

[50] Rhonda said she was a large part of Garnet’s life. She spent time with him, took him to medical appointments, delivered groceries and generally assisted his independence. She was with Garnet when he died. Garnet was on life support before he died. When it came time, she signed the consent as his POA to withdraw life support. Garnet did not remunerate her for her time and effort.

[51] Rhonda noted that Wayne and Garnet were very close neighbours and friends. The Salmon family filled a void in Garnet’s life following Connie’s decease. Larry and Shannon confirmed the observation that Garnet did not have in-person contact with them through Garnet's adult life. Connie’s relatives maintained minimal if any contact with Garnet after Connie died in 2012. The Respondent confirmed that he would speak with Garnet maybe twice annually.

[52] Rhonda states that while she was visiting Garnet on his birthday – December 8, 2021, he showed her the document she is propounding as his last instructions and confirmed the contents in its form as found after he died. She said she encouraged him to see his lawyer.

[53] In Rhonda’s opinion, Garnet remained capable until the end. She denies having observed anyone attempting to influence Garnet in respect to his testamentary intentions. She denies having influenced Garnet in that respect other than to recommend he see his lawyer.

[54] Although in normal times that may have been the optimal procedure, Garnet was appropriately concerned about Covid and the logistics involved. She noted that Garnet seldom left the home and the neighbourhood bubble during the Pandemic save for medical reasons. It is uncontested that Garnet was stricken from an early age with an unhealthy heart. The only evidence is that he was hospitalized at the Ottawa Heart Institute for 5 weeks in 2021. Reading between the lines, he died from heart failure.

[55] Rhonda recognizes the handwritten portion of the propounded document as Garnet’s. Rhonda further opined that the document she is propounding is what she would expect from Garnet. She said that the attention to detail, including the precise cutting and pasting is consistent with Garnet's practice.

John Horil

[56] John Horil is unrelated to the Salmons and to Garnet. He was a businessman who came to know Garnet when Garnet built what became his home across street from the Salmon home. Mr. Horil's home is less than five minutes distant form the Rombough home. Mr. Horil visited Garnet often. He too spent Christmas Eve with the Salmons.

[57] Mr. Horil recounted a discussion he had with Garnet on Christmas Eve 2019 wherein Garnet expressed his intention to take care of Rhonda because of everything Wayne, Bessie and Rhonda had done for him over the years. That seemed appropriate to Mr. Horil as, in his experience, Wayne Bessie and Rhonda did anything they could to assist Garnet after Connie died.

[58] Mr. Horil confirmed that there was never a time over their many interactions when he had concerns about Garnet’s mental capacity. Mr. Horil observed that Garnet was always alert with no symptoms of confusion.

Analysis

[59] To prove the 2021 document the applicant must establish on a balance of probabilities that Garnet had the requisite testamentary capacity when he signed the document, that the document was not induced by undue influence or fraud, that any suspicious circumstances have been resolved, the document is authentic. that Garnet knew and approved of the content and it represented his deliberate fixed and final expression of intention as to the disposal of his property on death.

Testamentary Capacity - what is it and what evidence is admissible on the issue

[60] The Respondent denies that Garnet was sufficiently capable to form testamentary intent on December 31, 2021. He offers no probative evidence on this issue. He offers memories of how Garnet in their recall comported himself ten years prior. The derisive comment from Christopher McLaren about how the document looks like something a 4- year-old would Mickey-Mouse together brings the content of the document into the discussion regarding Garnet's testamentary capacity.

[61] The respondent's basis for denying Garnet's testamentary capacity rests as well in his assertion that the product is out of character. Mr. Jarvis suggested that Garnet's comment about having searched the house for two days looking for the legal description for insertion in the document was indicative of onset of dementia entirely inconsistent with Garnet's passion detail. To the contrary, Garnet's passion for recording events in his life is consistent with the practices of a good detective with the view to having to reliably testify to matters at later date after the details faded. I do not connect misplacement of a document that he may not have looked at for over twenty years as indication of dementia.

[62] While there is no probative evidence of incapacity, the burden of proving capacity rests with the Applicant.

[63] As regards the document itself, for reasons later, it makes sense as a codicil to the 2012 will.

[64] In the Court's view, the Applicant has established that Garnet had testamentary capacity when he signed the 2021 document.

[65] Gillese J.A. in McGrath v. Joy, 2022 ONCA 119 revisited the measures of a sound disposing mind to determine testamentary capacity when it is challenged. Mr. Joy completed a holograph will inclusive of a suicide note after a day of heavy drinking and cannabis consumption.

[66] Justice Gillese affirmed the legal principles for determining testamentary capacity at paragraph 50 as follows:

a. understand the nature and effect of a will - that entails understanding the act of making a will and its effects; b. recollect the nature and extent of his or her property - is it a lot or a little? d. remember the people that he or she might be expected to benefit under his or her will; and e. where applicable, understand the nature of the claims that may be made by persons he or she is excluding under the will; f. be free of any mental illness that might in some way influence the terms of the will (i.e. both general insanity and insane delusions or hallucinations) In the venerable ruling in Banks v. Goodfellow the court viewed testamentary capacity as state dependent and not trait dependent.

Each matter is to be decided on its own facts. To establish testamentary capacity in Ontario it is not enough to make a rational response or to repeat a tutored formula. Mental soundness when interacting at a superficial level is not sufficient to establish testamentary capacity. In the normal course indication of dementia will not become self-evident until the cycle is repeated. .

The court will consider:

• Age, history of progressive impairment, radical departure from prior wills, and evidence of lay persons (Davis)
• Mental deficit, dependency on others, presence of children with ulterior motives, dates and time frames of any wills and whether there was a radical departure from prior wills.

Lay Opinion evidence of mental capacity or state of mind

[67] A lay witness may give evidence of statements made or acts done that may provide a basis upon which the trier of fact may draw inferences concerning the declarant’s mental capacity or state of mind. This is evidence of fact, not of opinion.

[68] A lay witness may also give evidence of opinion in relation to what are commonplace mental or emotional states of another, as for example, impaired, distressed, angry or aggressive.

[69] In civil cases, a lay witness may express an opinion on the issue of a person’s testamentary capacity. If the lay person has had an opportunity to observe the testator over a long period of time and association, such evidence may be given greater weight than expert testimony.

[70] The ONCA in Dujardin v. Dujardin, 2018 ONCA 33 at paragraph 33 articulated the value of lay testimony as follows:

[33 ] This case was fought and decided on the evidence of those who knew, interacted with, or treated Jack, not on the basis of experts who had never met or examined the man, and who could only offer tentative views on the ultimate issue the trial judge had to decide. This is a familiar state of affairs. In Ian. M. Hull & Suzanna Popovic-Montag, Macdonnell, Sheard and Hull on Probate Practice , 5th ed. (Toronto: Thomson Reuters, 2016), the authors observe, at p. 61, that the question of testamentary capacity “is a practical one that, so far as evidence based on observation is concerned, may be answered by laypersons of good sense as well as doctors.” See also Re Davis Estate, [1963] 2 O.R. 666 (C.A.) , at p. 674 .

Dr. Michael Bensimon – letter dated March 29, 2023

[71] The Respondent acknowledges that Mr. Rombough was independent and capable until the last year of his life. Counsel confirmed that Mr. Rombough’s entire medical file was produced to the Respondents. I accept that Garnet's medical file would be extensive having regard to his defective heart, including the five-week stay at the Heart Institute in July 2021 did not divulge mention of capacity issues. That Garnet was released home rather than long term care speaks volumes.

[72] The Applicant offered a short note from Dr. Bensimon which can be summarized as follows:

“I have reviewed the patient’s chart. I cannot find any notes in the patient’s chart that suggest he had any CAPACITY issues. He was not known for dementia, and/or any cognitive deficiency.

I do not have any psychiatry, geriatric and/or cognition notes on file. I have found zero records (in the searchable chart) with the following key words: memory, confusion, capacity or judgment.

During the three years that I was his family physician, I NEVER had any concerns about his cognition and or judgment. His interactions with myself were consistently lucid. I have listed the documented known medical issues – heart failure related.”

[73] The Respondent contests the admissibility of this note because evidence from a medical practitioner introduced under s. 52 of the Evidence Act is vulnerable to cross-examination which was denied in this case.

[74] The threshold requirement for the admission of expert evidence has four elements: the evidence must be relevant; it must be necessary in assisting the trier of fact; no other evidentiary rule should apply to exclude it; and the expert must be properly qualified, assuming there is no novel science issue.

[75] Dr. Bensimon is not an expert witness as described in r. 4.1.01 and Form 53: He is a “participant expert,” one who forms opinions based on their participation in the underlying events as treating physician. Participant experts may give opinion evidence for truth of content after notice pursuant to s. 52 of the Evidence Act without complying with rule 53.03 – Rules of Civil Procedure.

[76] The ONCA in Girao v. Cunningham, 2020 ONCA 260 para: 45 confirmed section 52 relates to medical reports and is more expansive than s. 35 (limited to business record as opposed to opinion) as it permits the Court to allow the medical reports to be admitted into evidence without the need to call the practitioner. The opinion can then be accepted for the truth of its contents. The caveat is that the trial judge must at the request of a party oblige the medical practitioner to testify to permit cross-examination.

[77] The Appellate Court sent the Girao file back for re-trial after defence attempted to adduce the impugned medical report under the auspices of s. 35 – Evidence Act to insulate the doctor from cross-examination and then used the report to cross examine the appellant having regard to the opinions stated in the report. Defence denied the appellant opportunity to cross-examine the medical report author and made its content a cornerstone of jury argument. That chain of events compromised trial fairness to such an extent that the claim had to be re-tried.

[78] In the case at bar, the Applicant denied opportunity for respondent cross-examination of Dr. Bensimon. Dr. Bensimon's letter dated March 29, 2023 is inadmissible and should be considered struck from the record. That was unfortunate, as I expect that an examination would have conclusively put the matter of Garnet's testamentary capacity to rest.

[79] In this case, Dr. Bensimon's report is relevant but unnecessary. The underlying evidence that drove Dr. Bensimon's conclusions was produced to the Respondents including the medical business records and Garnet's medical diary. Dr. Bensimon offered little more than confirmation of the content of the records. The parties know from Garnet's diary the times he visited Dr. Bensimon in the last year. If the medical records referenced capacity deficiencies, the Respondent would have referenced them.

[80] The Respondent argued that the lay materials offered by the Applicant on this issue were consistently conclusory without referencing the observational basis for the conclusion and as such lacking probity on the issue.

[81] To the contrary, Garnet's brother Larry said he talked with Garnet four times in Garnet's last two weeks of life and confirmed that Garnet was no different cognitively than he had ever been. Larry's conclusion was that the document was either Garnet's or Rhonda's.

[82] But for Garnet's constraints imposed by his compromised heart, he carried on as usual to the end. Garson knew Garnet well. He referred to three-hour visits. That is much more than superficial salutation. Garson Whitford talked about his last time with Garnet just before Christmas 2021. Garnet went to Garson’s home bearing gifts for Gracie. Garnet indicated he could not stay and did not want to enter the home, as he was not feeling well. Instead, they talked in the garage. Garnet said he would not be visiting on Christmas Day for the same reason. Garnet stayed only a few minutes. They exchanged holiday greetings and Garnet left. Garson called and spoke with Garnet on Christmas Day.

[83] John Horil, a person with no financial interest in the file, vouched for Garnet's sound mind to the end. He was a regular visitor.

[84] None of the Salmons said they observed any decline in Garnet's intellectual function; rather to the contrary.

[85] The evidence is that Garnet was universally liked and respected. Liked because he was kindly and pleasant to be around. Respected because of his keen mind and attention to detail. He had lots of support from friends and neighbours over the last ten years of his life. When he required medical intervention there was sure to be someone whether one of the Salmons, the Whitfords or John Horil who would intervene to look out for their friend. If Garnet began to show signs of dementia, it would have been addressed.

[86] These friends engaged/interacted with Garnet at every level. As in any relationship, some of the interaction would have been superficial. These relationships were much more than passing in-the-street conversation. He was valued in their community as family. The same could be said for how Garnet valued them.

[87] In the Court's view, the 2021 document, if it can be said to reflect Garnets' deliberate or fixed and final expression of intention as to the disposal of his property on death, has to be read in conjunction with the 2012 will.

[88] Garnet was failing physically through December 2021. He was vulnerable to Covid. This court finds that practically, from his perspective, he could either do what he did or leave the safety of his small pandemic bubble and go to the lawyers' offices. That he did his best with the former is unsurprising.

[89] He knew the nature and extent of his property. He reduced the gifts to Connie's nieces and nephews to $70,000, That allowed him to gift the house to Rhonda and the residue to the Whitfords. Note the direction to include the proceeds of the auction in the residue.

[90] Garnet understood the interest that Connie's nieces and nephews had in her legacy. That influence would have been more compelling in 2012 in the immediate aftermath of Connie’s death. The closeness attenuated with time, distance and absence. The evidence is that Garnet maintained regular communication with his brother. Not so for Connie's side of the family. Garnet recognized the attachment he and Connie had with the Salmons and Whitfords in the 2012 will.

[91] In the Court's view, in terms of capacity, Garnet displayed the precision he was known for in crafting the revisions to the 2012 will. When Garnet crafted the 2021 document, he did not exclude distribution to distant extended family; rather he shifted the balance of estate proceeds allocation in a way that honoured Connie's legacy and reflected the reality of his experience in the ensuing years.

Undue Influence and Suspicious Circumstances - Fraud and Authenticity

[92] In the context that the 2021 document was crafted by Garnet, there is no evidence that anyone pressured or manipulated him into redistributing his estate. The best evidence derives from Larry who knew Garnet for a lifetime and talked with him four times in Garnet's last two weeks. Larry concluded that the document was either authentic, as in it is Garnet’s document or fraudulent, as in it is the work of someone else.

[93] The Court rejects the conclusion that the 2021 document is the product of fraud. Aside from allegation of fraud from those who had no more than superficial interaction with Garnet after Connie died ten years prior, there is no actionable evidence of fraud in the preparation of the 2021 document.

[94] Chris McLaren and Chris Jarvis said that "in knowing Garnet and his careful meticulous approach to serious matters in his life I am highly sceptical that Garnet would execute a document of the sort the applicant seeks to probate." They concluded that the document is fraudulent because of its inconsistency with the way Garnet lived his life. Mr. McLaren said the document looks like something a four-year-old would Mickey-Mouse together.

[95] The Court finds that the 2021 document is the product of Garnet's efforts.

[96] The penmanship evident in the handwritten portions of the 2021 document belongs to Garnet. It reflects the penmanship in the medical diary notebook. The initials and signature from the 2012 will, the medical diary notebook and the handwritten portion and signature of the 2021 document emanate from the same hand.

[97] Contrary to Mr. McLaren's characterization of the document as something a four-year-old would Mickey-Mouse together, the cut and paste method lifting pertinent sections of the 2012 will into the 2021 document was efficient and precise. It saved a lot of handwriting and accomplished a careful meticulous redistribution of Garnet's estate.

[98] Accordingly, the authenticity of the 2021 document is made out.

The real issue in this case

[99] Before granting the Applicant relief under s.21.1, in addition to satithe Court must be satisfied that the document expresses the deliberate or fixed and final testamentary intention of the testator.

Extrinsic evidence related to the Mr. Rombough’s testamentary intention (animus testandi)

[100] The trend is toward admitting extrinsic evidence to cure a multiplicity of ills in wills. The rules governing the admission of extrinsic evidence has been increasingly relaxed and refined.

[101] The purpose is to frame the testator’s point of view when he or she drafted the will. The Court looks to the particular circumstances of the deceased to ascertain the plain intention behind the document.

[102] Justice Hilliard in Groskopf v. Rogers et. al, 2023 ONSC 5312 observed that the testator's familiarity with and history of executing solicitor drafted and witnessed wills is a relevant consideration. There, the testator had worked for lawyers and accountants and was thought to have known the formalities of will execution. Notwithstanding, the signed but undated and unwitnessed document was probated under s. 21.1.

Caselaw in relation to s. 21.1

[103] I have reviewed the caselaw in relation to the new authority in the amending section offered by counsel.

[104] The Manitoba Court of Appeal in George v. Daily (1997), 143 D.L.R. (4th) 273 (Man C.A.) is cited for the purpose of framing the legal issue in these applications. "The crucial question to be answered is whether there was a deliberate or fixed and final expression of intention as to the disposal of his/her property on death; not every expression made by person whether made orally or in writing respecting the disposal of his/her property on death embodies his/her testamentary intention."

[105] The facts are not analogous to those at bar.

[106] The Court ruled that a letter written by the deceased’s accountant to estate counsel depicting the deceased’s instructions for will completion did not reflect the deceased’s testamentary instructions. This, even though the lawyer confirmed the instructions with the deceased less than two weeks after the accountant letter postponed execution pending a competency assessment. There was no evidence that a new will had been drafted or that the deceased attempted to obtain the requested medical certificate. The Appellate Court overturned the trial decision noting that “the court must be satisfied that the deceased knew and approved of the contents of the document presented for probate.” On the facts, it was unclear whether the deceased was privy to the content of the accountant letter and it was clear he wished to change his will. The court noted that testators change their minds. The accountant’s letter was at best an instruction for the new will’s preparation.

[107] The term testamentary intention means more than a person’s expression of how he/she would like his/her property to be disposed after death. The essential quality of the term is that there must be a deliberate or fixed expression of intention as to the disposal of his/her property on death.

[108] That Court determined that s. 21.1 will not operate to mitigate a testamentary document's formal deficiencies unless the Court is satisfied first that the deceased knew and approved of the contents of the document presented for probate. A document can't be a deliberate or fixed and final expression of intention as to the disposal of his/her property on death if the Applicant is unable to demonstrate that the testator knew and approved of the content. That concern is not pertinent in the case at bar.

[109] In Kuszak v. Smoley, [1986] M.J. No. 670, a partially printed and partially handwritten unwitnessed document signed by the deceased was found to reflect the deceased testamentary intentions and was validated pursuant to the remedial authority in the section. The Court considered the document presented and noted that:

• The handwritten portion was in the deceased’s handwriting authenticity;
• The document was signed in four places;
• The document was dated in four places;
• The printed portion identified the document as a will and was properly filled out; and
• There was nothing before the court refuting the conclusion that the document embodied the deceased’s final intentions – clincher.

[110] In McNeil v. Snidor Estate, 2008 MBQB 187 the Court approved a will form partially pre-printed and partially handwritten but lacking in the formality involving witnessing the deceased’s signature. The deceased had a long-time friend sign the blank form as witness. The other witness was not present to witness the deceased sign the document.

[111] That the deceased followed a stationery will format played a part in the analysis.

• The deceased revoked earlier wills and specific dispositions therein;
• The document is entitled “Will” on the top of the first page;
• Each blank space on the form, with the exception of the final space for the second witness and one space where the name of the executor instead of the testator was inserted, was completed properly in the deceased’s handwriting;
• The deceased nominated an executor in the space designated;
• The deceased provided instruction to the executor as to who should not receive the proceeds of his estate and for disposition of the residue in the space designated;
• The deceased signed the second and third pages of the document ; and
• The deceased obtained the second witness, although at a later date.

[112] The Sawatzky v. Sawatzky, 2009 MBQB 222 followed the George appellate ruling. Following a cancer diagnosis, the deceased took his holograph will to his lawyer with instructions to have a formal will prepared on the same terms. The lawyer prepared a will with one change to the form of executorship and presented it to the deceased who was hospitalized. The deceased after review requested several changes all of which were noted by the lawyer on the draft typewritten document. The lawyer returned the next with the updated will. The deceased had passed.

[113] The updated unsigned typewritten will document was presented for probate. The Court denied the application for probate of the updated will and approved the earlier holograph will.

[114] There was no evidence the deceased had reviewed, understood and approved the content of a typewritten document either in its earlier or updated form. Notwithstanding the lawyer’s testimony advising that the updated document reflected the deceased’s testamentary instructions, the deceased who was not facing imminent death did not state that his instruction were final or would not be changed.

[115] Madame Justice Dickson in the Estate of Sharone Young, 2015 BCSC 182 summarized the jurisprudence in paragraphs 34 – 37 as follows:

[34] As is apparent from the foregoing, a determination of whether to exercise the court's curative power with respect to a non-compliant document is inevitably and intensely fact-sensitive. Two principal issues for consideration emerge from the post-1995 Manitoba authorities. The first in an obvious threshold issue: is the document authentic? The second, and core, issue is whether the non-compliant document represents the deceased's testamentary intentions, as that concept was explained in George.

[35] In George the court confirmed that testamentary intention means much more than the expression of how a person would like his or her property to be disposed of after death. The key question is whether the document records a deliberate or fixed and final expression of intention as to the disposal of the deceased's property on death. A deliberate or fixed and final intention is not the equivalent of an irrevocable intention, given that a will, by its nature, is revocable until the death of its maker. Rather, the intention must be fixed and final at the material time, which will vary depending on the circumstances.

[36] The burden of proof that a non-compliant document embodies the deceased's testamentary intentions is a balance of probabilities. A wide range of factors may be relevant to establishing their existence in a particular case. Although context specific, these factors may include the presence of the deceased's signature, the deceased's handwriting, witness signatures, revocation of previous wills, funeral arrangements, specific bequests and the title of the document: Sawatzky at para. 21; Kuszak at para. 7; Martineau at para. 21.

[37] While imperfect or even non-compliance with formal testamentary requirements may be overcome by application of a sufficiently broad curative provision, the further a document departs from the formal requirements the harder it may be for the court to find it embodies the deceased's testamentary intention: George at para. 81.

[116] Justice Johnston had occasion to apply the curative authorizations contained in s. 21.1(1) in Gratton v. Gratton, unreported Brockville file number 22-0054. The deceased died on February 15, 2022 with one Applicant sibling and one Respondent nephew surviving. The evidence was that the deceased and nephew were estranged. The evidence is that the deceased and her brother remained very close through their lives.

[117] The deceased met with her lawyer to provide instructions for the preparation of her will. There were no other testamentary documents in play. The evidence is that the deceased intended to gift the entirety of her estate to her brother the Applicant. The lawyer sent the first draft to the deceased in PDF format. The deceased after review returned the draft with minor alterations including spelling and the corrected address of her home. There were no distributive alterations.

[118] Counsel confirmed that she would make the necessary corrections and left it to the deceased to schedule an appointment for formal signing. No appointment was made, and Ms. Gratton passed.

[119] At issue was whether the brother was entitled to a declaration and order that the unsigned will of the deceased is the valid and effective will as if it had been properly executed and witnessed.

[120] The Court noted that the analysis of whether the curative provision applies centres on two issues: first: whether the document is authentic and second, does it represent the deceased deliberate, or fixed and final intentions regarding the disposal of her property upon death.

[121] The ruling cited two cases decided in British Columbia, namely Bishop Estate v. Sharedown (2021) and Gibb Estate (re), 2021 BCSC 2461 with similar facts – the deceased provided instructions to counsel for the completion of will. In Bishop, the instructions involved an office visit. In Gibb, the instructions were provided over the phone. Both fact circumstances involved constraints imposed by the Covid 19 pandemic. In both, the Court found that everything was settled but the executions with witnesses.

[122] Both Courts approved the unsigned documents as the fixed and final testamentary intentions notwithstanding the lack of signature.

[123] The Court in Gratton concluded the 15-day delay from the day she approved the document for signature did not raise concern for a change of mind regarding her testamentary intentions. It was further noted that the extrinsic evidence relating to the close relationship between the Applicant and deceased and the estranged relationship with her nephew bolstered the Court’s confidence in the finality of the deceased’s intentions. The Court approved the unsigned document.

[124] Authenticity and testamentary capacity were not challenged. Justice Johnston was satisfied that the deceased knew and approved of the contents of the document presented for probate.

[125] In Cruz v. PGT, 2023 ONSC 3629, the deceased had prepared his own will. It clearly expressed his testamentary intention in clear terms. He gave the document in a sealed envelope to his executor. He included a note to the executor asking the executor to get the will witnessed.

[126] Justice Myers accepted the authenticity of the document on the basis that the document was handed to the executor by the deceased and the executor swore to the authenticity and his continuity of possession of the will in a sealed envelope.

[127] In the context of the standard of proof as balance of probabilities, Justice Myers noted commentary calling for clear and convincing proof of authenticity and intention, he articulated that there is only one standard of proof. In the end, Justice Myers characterized the deficit in formality as – the deceased just blew the formalities.

[128] In Kertesz v. Kertesz, 2023 ONSC 7055 confirmed that the chain of possession of the subject will coupled with the lay witness recognition of the deceased’s handwriting left no real doubt that the document was his and is authentic.

[129] In Vojska v. Ostrowski, 2023 ONSC 3894 Justice Myers was asked to validate a counsel prepared will in the circumstance that in the course of multiple document execution one witness signature was missing. At paragraph 12, he noted that “It is hard to imagine a more textbook example of a case for which the new power to validate was intended.”

[130] Justice Myers confirmed the fixed and final intentions analysis and balance of probabilities as the standard of proof.

[131] The facts in MacKinnon v. MacKinnon (2021) NSSC 272 are more closely aligned to those in the case at bar. The deceased completed a will with a lawyer in 2014. She was scheduled to meet with a lawyer to discuss her will in June 2019. She died the morning of the day of the appointment. The Applicant found two pages of notes unsigned, not dated or witnessed. Aside from the notes, the notepad was untouched. The notes appeared to relate to the disposition of her estate. The Applicant sought to prove the notes in solemn form. The Respondent contested and sought admission of the 2014 will into probate.

[132] The issue was whether the notes which lacked the formalities of formal execution embodied the testamentary intention of the deceased. The Court accepted that the notes were written by the deceased.

[133] The hearing involved viva voce evidence depicting the life circumstances of the deceased. The Court factored those relationships to conclude the intention depicted in the notes corresponded with her life experiences.

[134] Justice Gogan confirmed:

• that purport of the new authority in s. 21.1(1) is remedial and intended to give effect to testamentary intention not compliant with the formalities otherwise required;
• the onus is on the applicant to satisfy the requirements of the section on a balance of probabilities;
• discharging the onus requires substantial, complete and clear evidence relating the deceased’s testamentary intention to the document; that said, note Justice Myers reminder there is only one burden of proof;
• Whether it is the deceased’s own instrument or the notes of writing made by a third party, the crucial question to be answered is whether the document expresses/embodies the “animus testandi” of the deceased – a deliberate or fixed and final expression of the intention as to the disposal of his/her property on death.

[135] Justice Gogan adopted a non-exhaustive list of considerations that could bear on the intention determination:

• Degree of formality of the language of the document;
• Is it dated?
• Is it signed?
• Has it been sealed?
• Was it delivered to anyone with or without instructions as to what to do with it?
• Were there statements of the deceased in anticipation of death suggesting that the document was intended to reflect disposition after death?
• Certainty of the gifts set out in the document;
• How permanent was the document intended to be? Having the original document here allowed more confidence in assessing this consideration;
• Whether the document was on a fill in the blanks form or as in the notes at bar partially in Mr. Rombough’s handwriting and partially cut and pasting from his 2012 will document.

[136] In Estate of Harold Franklin Campbell (Re), 2023 ONSC 4315, Justice Chang observed that s. 21.1(1) does not confer on the Court “a license to read into testamentary documents or writings intentions that are not already set out in them or that are not clearly inferable from admissible extrinsic evidence.” The Court resorted to a metaphor to make the point – the section cannot be used to create intention “out of a whole cloth.”

Analysis and Conclusion in respect to the necessary intention

[137] Garnet executed a solicitor-drafted and witnessed will in 2012 shortly after Connie died. It is impossible to assess the extent of his familiarity with will execution as ten years had elapsed, and the will was signed when he was in the throes of coping with Connie’s passing. The application evidence is that Garnet was advised to return to his solicitor if he wished to change his estate distributive allocations.

[138] Were circumstances different, the Court accepts that Garnet would have taken the bound notebook where he would have communicated his instructions to his solicitor and this application would have been unnecessary. As matters were, any intentions Garnet had to marshal a solicitor-witnessed will were frustrated. Garnet's adult life was affected by his heart condition. He knew what he wanted but by mid-December 2021, he was physically failing. By mid-January 2022, he had passed. The issue of what to do with his estate was pressing. The how was another matter. His vulnerable condition and the implications regarding the Pandemic limited his contacts to the small bubble. That was the standing recommendation for everyone through those times. The time of year over Christmas is notorious for office closures.

[139] One construction of Garnet's 2021 document is that his intent was to revoke the whole residual clause from the 2012 will. The Court looks to the particular circumstances of the deceased to ascertain the plain intention behind the document.

[140] After consideration of all the extrinsic evidence in relation to Garnet's point of view when he drafted the 2021 document including:

• the evolution of the endearing relationship between Garnet and the Salmon family and Garnet and the Whitford family over the last twenty years;
• Garnet's affection for Gracie Whitord;
• the reality that Garnet's relations with the nieces and nephews remained cordial but had become distant after Connie's death;
• that Larry, as the person next in line on an intestacy eschewed status as beneficiary to Garnet's estate;
• the recognition by both sides to this application that Garnet was careful and meticulous about important matters, that construction is incorrect.

[141] This court finds that Garnet would not intend to create an intestacy in relation to the residue. Garnet intended the two documents to be read together. The only beneficiaries removed from the residual clause are those identified in gifts i - vii in the 2021 codicil document. Garnet adverted to the residue of the estate. He specifically directed the Applicant to drop the proceeds of the auction sale into the estate. The Whitfords are the only remaining residual estate beneficiaries. The two documents read together fully dispose of Garnet's estate property

[142] This court finds that both documents are testamentary. The 2012 will was amended by codicil by writing, signed by Garnet and dated December 31, 2021 just 15 days before he succumbed to heart failure. He left the 2021 document in his desk drawer. That is a likely location. I accept that Garnet told Rhonda on January 4, 2022 that he had signed his will. The date noted with his signature reflects the veracity and reliability of Rhonda’s evidence. Once Garnet thought he had finalized his estate instructions there was no need to belabour. He was out of time to see his solicitor. Giving Garnet credit for meticulous and careful attention to details assists greatly in understanding what he wanted to happen.

[143] Clearly the document was not witnessed. S. 21.1 is intended to be curative. If the document is not recognized for what I have accepted it to be Garnet's wishes and intentions would be frustrated. Accordingly, I choose to exercise the authority provided in s. 21.1 of the SLRA.

[144] In conclusion, I find that the 2021 document is authentic in the context it is Garnet's document crafted with testamentary capacity without undue influence or compromising circumstances and that it together with the 2012 will embody Garnet's final deliberate animus testandi. These documents together may be admitted to probate.

[145] Order to issue:

1. The will executed by Garnet Earl Rombough on April 24, 2012, together with the document signed by Garnet Earl Rombough dated December 31, 2021, purporting to embody amended testamentary instruction as codicil, are together as valid and fully effective as the will of Garnet Earl Rombough, deceased as if properly executed and witnessed or made;
2. A Certificate of Appointment to Rhonda Salmon as Estate Trustee with a will and codicil to issue;
3. If the parties cannot agree on costs, written submissions four pages or fewer to be sent to my attention within fifteen days of this judgment.

The Honourable Mr. Justice Rick Leroy Released: February 26, 2024

COURT FILE NO.: CV-23-06 DATE: 20240226

BETWEEN:

Rhonda Salmon Applicant – and – TARA ELSIE ROMBOUGH, SHANNON ROMBOUGH, CHRISTOPHER JARVIS JR., JENNA JARVIS-MCLAREN, NICHOLAS MCLAREN, HEATHER MCLAREN, ADAM MCLAREN, GARSON WHITFORD, CRYSTAL WHITFORD, WAYNE SALMON, BESSIE SALMON, LARRY ROMBOUGH, ONTARIO FEDERATION OF ANGLERS & HUNTERS, UNIVERSITY OF OTTAWA HEART INSTITUTE Respondents

Released: February 26, 2024