Forde v. Dockery, 2024 ONSC 5878

COURT FILE NO.: CV-23-00703028-00ES

DATE: 20241114

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: IN THE ESTATE OF AUGUSTUS KENRICK FORDE, deceased

ROXANNE FORDE also known as ROXAN D. FORDE, also known as ROXANNE FORDE-GOODEN, Applicant

AND:

DENISE DOCKERY in her personal capacity and in her capacity as the name Estate Trustee of the Estate of Augustus Kenrick Forde, deceased, EARLE FORDE, CEDRICK FORDE, TENISHA FORDE, CHYVONNE BENNETT, KEISHA ROBERTSON-FORDE and TEVIN FORDE, Respondents

BEFORE: M.D. Faieta J.

COUNSEL: Cassandra Fafalios, for the Applicant

Kerry-Ann Ebanks, as agent, for the Respondents Denise Dockery, Earle Forde, Cedrick Forde, Tenisha Forde and Chyvonne Bennett

Keisha Robertson-Forde, self-represented

HEARD: April 16, 2024

ENDORSEMENT

[1] On May 5, 2019, Augustus Kenrick Forde (“Augustus” or “the deceased”) died, at the age 84. He was predeceased by his wife, Rotha Forde (“Rotha), who died on December 15, 2018, as well as by one of their children, Frederick Forde (“Frederick”), who died in 2002.

[2] The deceased was survived by his children with his wife Rotha, namely, the applicant, Roxanne Forde (“Roxanne”), the respondents Denise Dockery (“Denise”), Earle Forde (“Earle”), Cedrick Forde (“Steve”) as well as by his grandchildren. The respondents Tenisha Forde, Chyvonne Forde, Keisha Robertson-Forde and Tevin Forde are Frederick’s children. Each of the deceased’s surviving children also have children. The deceased was also survived by William Forde (“William”), a son from an earlier relationship, who resides in Guyana.

[2] The deceased made a Will a few months before his death which left his estate to his children, other than Roxanne and William, as well as to Frederick’s children. Roxanne submits that the Will is invalid on the basis that the deceased lacked testamentary capacity, did not know and approve of the contents of the Will and because the deceased was unduly influenced in making the Will. If the application is successful, the residue of the deceased’s estate will be distributed based on an intestacy.

BACKGROUND

[3] Augustus was born in Guyana. Augustus, Rotha and their children immigrated to Canada in 1974. Augustus was employed by the Toronto Transit Commission as a maintenance worker for about 28 years before his retirement.

[4] Earle states that his parents and all of the children, except Roxanne, eventually moved to a home on Topcliff Avenue, Toronto (“the Home”). Earle states that Roxanne had a strained relationship with Augustus as she was pregnant at the time which led to a “huge” fight with him. Earle states that after Roxanne moved out, she would call and/or visit about once a month.

Gift to Roxanne

[5] Both Earle and Denise state that, in about 1991, Augustus and Rotha gave Roxanne, at her request, $25,000 to purchase a home in Mississauga, Ontario. Earle states his parents did not have the available cash to help Roxanne purchase a home. Both Earle and Denise state that Augustus and Rotha took equity from their own home to do so. On cross-examination, Roxanne acknowledged that her downpayment for this house was $25,000.00.

[6] Denise states that she and her siblings were aware of this gift as it caused a “major rift” between her parents and was the basis for many of their arguments for many years that followed as Augustus had been opposed to making this gift but eventually relented. Earle recalls Augustus being opposed to extending their mortgage.

[7] Earle states that after Roxanne purchased her house, she stopped coming to the Home as much, however, Roxanne would still come around when she needed something such as to borrow the lawn mower, garden hose or to get groceries.

[8] Although he acknowledged that he had never seen documentation, when asked how he knew that his parents gave Roxanne $25,000.00, Earle stated:

I must’ve heard this hundreds of times from my parents growing up, that – that she received this money.

[9] In a statutory declaration dated May 16, 2007, Roxanne states that title to the Mississauga home was acquired and registered in her parents’ names as “… she was in the process of a divorce …” even though she was the sole beneficial owner of that home. Title to this home was transferred to Roxanne by her parents in May 2007 for no consideration.

[10] Roxanne states that her parents gave her $10,000 rather than $25,000, about 30 years to help her purchase a home.

[11] Denise states that Roxanne had acknowledged to her siblings that she had received $25,000 from her parents and that it is only now, in this proceeding, does allege having received only $10,000.00.

[12] On examination, Roxanne adamantly rejected the suggestion that her parents gave her $25,000 towards the purchase of her house, however she opined that her parents gave her $15,000.00 and later stated she could not remember whether she received $10,000.00 or $15,000.00.

[13] I prefer the evidence of Denise, Earle, and the statement made by Augustus to his lawyer, Ms. Modupe Ehinlaiye, that he and Rotha gave her $25,000.00, to Roxanne’s inconsistent and uncertain evidence on this point. I find that Augustus and Rotha gave Roxanne the sum of $25,000 towards her purchase of a home in 1991.

Denise as Parents’ Caregiver

[14] Denise states that she was the only sibling that went with her parents to all hospital and doctor appointments. Earle states that he recalls that about seven or eight years ago, Denise asked Roxanne to let their parents stay with her while some of the siblings went on a cruise. He states that Roxanne said “I will take mom but I won’t take dad”. As a result, Rotha refused to stay with Roxanne which resulted in Denise’s daughter cancelling her trip so that she could stay at home with Augustus and Rotha.

[15] Earle states:

My parents always relied on Denise a lot as she was dependable and smart. Denise had Power of Attorney for Property and Medical Care for [dad’s] care for about 10 years before his passing. Denise was also a joint holder of dad’s account at CIBC. My dad could call Denise any time of the day or night and she would come. My dad would give Denise money to buy things and she would return the funds to him unused. Conversely, if Roxanne brought food for my parents, they would have to repay her for the ingredients she used.

[16] When asked on his examination how he knew Denise would not use their father’s money, Earle stated that Augustus told him:

It’s just how she was. She wouldn’t use dad’s money for anything. She -- she’d purchase it on her own.

[17] Denise states that in 2012, Augustus made her his sole attorney under a Power of Attorney for banking matters at the CIBC.

[18] Earle also stated that Augustus wanted Denise to be power of attorney because: 1) she was able to be at Home with Augustus a lot more than anyone else; and, 2) he trusted her. When asked whether Denise’s opinion would have influenced her parents, Earle stated that his parents were very head strong, and if they wanted anything a certain way, it would be done that way.

Earle’s Relationship with this Parents

[19] Earle is 54 years old and is the youngest sibling. He states that he lived with his parents until about 20 years ago.

[20] Earle states that he would go to his parents’ home whenever his parents called to get something done and, in any event, about two or three times a week. He would mow the lawn at the Home. He states that he did not buy them groceries or take them to medical appointments as Denise did those things.

Renovation of the Home

[21] Denise states that in 2017, she and her siblings, other than Roxanne, contributed their work or money to renovate their parent’s home to make it more comfortable. The renovations took four months.

Preparation of Powers of Attorney

[22] On October 29, 2018, and about six weeks before Rotha’s death, the deceased signed a power of attorney for personal care and a continuing power of attorney for property that appointed Denise as his attorney. These documents were prepared by Paul Crum-Ewing (“Mr. Crum-Ewing”).

[23] Mr. Crum-Ewing and Augustus knew each other for many years. Denise states that Mr. Crum-Ewing told Augustus that he was retiring, and that Augustus should find another lawyer to prepare a Will for him as soon as possible. Mr. Crum-Ewing also stated that knowing the family’s dynamics, it would not be wise for Mr. Crum-Ewing to prepare the Will as he would not be able to defend Denise should anything arise.

Rotha’s Death

[24] Denise states that her mother became ill shortly after the October 29, 2018 meeting, and that she put aside the search for a lawyer to prepare a Will for Augustus. Rotha died several weeks later. An application for the appointment of an estate trustee was not filed as Rotha’s estate held no assets of any significance. Earle states that as a result of being unable to find a Will for Rotha and Augustus after Rotha died, he told Denise to ensure that Augustus had a Will.

Roxanne’s Relationship with her Parents

[25] In her affidavit, Roxanne states that she and her parents were “always close”. On examination, Roxanne states that after Rotha died in October 2018, she called Augustus every day to see how he was doing. Roxanne states that after Rotha died, she visited Augustus twice a week and sometimes brought him food. There is no evidence that she took care of Augustus whether before or after Rotha died. On examination, Earle stated that he did not remember Roxanne dropping by the Home to help their parents but that she did keep in contact with them, at least by telephone.

[26] Denise states that Roxanne did not have a close relationship with her parents and that she was insensitive, inconsiderate and had no compassion towards them until their deaths. Denise give three examples of such behaviour:

(a) Denise states that in 2017, Roxanne visited Rotha and asked her to give Roxanne’s children (Chantal and Sean Gooden) their inheritance and not to wait until after she died. Denise states that Rotha responded: “What money? I don’t have any money for your children. I have already given you your inheritance and you are responsible for your children.” Earle gave similar evidence. He states that prior to Rotha’s death, Roxanne told Rotha that she wanted her inheritance now and Rotha responded that “she got everything that she was supposed to get already.”

(b) Denise states Roxanne constantly badgered her parents for money. She states:

She even attempted to blackmail our father over a family “secret” a few years ago and when that was not successful, she stopped talking to him. It was only when he became ill, and she found out he was dying that she made an attempt to show some interest in him. And even with that she had an ulterior motive.

(c) As will be described in greater detail below, Roxanne arranged for a lawyer and a financial planner to visit Augustus in a hospital while he was terminally ill for the purpose of preparing a Will, without having been asked by Augustus to do so, causing him great upset.

[27] Earle states that after Rotha’s death, and after Roxanne lost her job at a travel agency, Roxanne asked him and Augustus to take $4,999 in cash and to obtain a cashier’s cheque in that amount from a bank for her. He stated that Roxanne kept the amount below $5,000 in order to avoid the transaction being flagged by the bank. Earle stated that Roxanne needed this money as she was involved in a real estate venture. Augustus called Denise who told him that he not participate in this transaction as the situation seemed “shady”. Augustus told Roxanne that he would not be participating for the reasons given by Denise. Roxanne got upset and said that Denise should mind her own business.

Lost Will

[28] Denise testified that Mr. Crum-Ewing prepared a Will for Augustus many years before his second Will was made in January 2019. She states that the first Will also excluded Roxanne as a beneficiary. Her evidence was as follows:

Question: Have you ever seen a copy of that Will?

Answer: Of the first Will?

Question: Yes

Answer: I saw a copy of the first Will a very long time ago

Question: Where is that Will stored?

Answer: It was through – at my parent’s house and my mom kept all her documents in a filing cabinet in the basement

Question: And your parents had the original, correct?

Answer: Yeah. My parents had the only copy.

Question: … I suppose, after the fact you enquired with Mr. Crum-Ewing to see if he had a copy. He said he did not.

Answer: Correct.

[29] In his affidavit, Earle stated:

After my mom died in 2018, but before my dad’s passing, Roxanne asked me if a Will was in place. I told her that I knew of a Will that was prepared by Paul Crum‑Ewing because mom would talk about it. I have never seen that first Will and as far as I know the lawyer did not keep a copy of the Will. I never saw a copy of the Will in my parent’s home.

I recall that after my mom passed, Roxanne went to my parent’s house and was in the basement for some time where the filing cabinet with all of my parent’s legal documents were kept. We did not find a copy of the Will in the filing cabinet after Roxanne visited. We had not searched prior to Roxanne’s visit.

[30] On examination, Earle stated:

So, there was a previous Will. The previous Will was – my parents had a filing cabinet in the basement, and they kept all their financial documents in this filing cabinet. So, there was a previous Will, and they kept all their financial documents in this filing cabinet. So, there was a previous Will, and the previous Will was what my parents spoke about all the time in regard to the fact that Roxanne had been given, you know, I mean, everything that she’s supposed to get. It’s – they said it over and over and over again in the Will. …

… like I said, my parents spoke about the Will. They spoke about the Will when Roxanne would come over and ask them for anything. They openly spoke about this Will. We all knew there was a Will. As far as, I guess, my parents were concerned, they thought the Will was in the filing cabinet in the basement. …

[31] In her affidavit, Roxanne stated that Augustus’ first Will treated all children equally. On examination, she admitted that she did not know what was in the first Will and had never read it.

[32] Roxanne provided an unclear answer when asked to explain how she knew that her father’s first Will was “misplaced”:

Question: And how did you know that this Will was misplaced?

Answer: Because I personally gave it to Denise while we were packing the house, packing away everything for the renovation to get started.

Question: I’m suggesting to you that you did not give any Will to Denise.

Answer: I gave Denise all of the legal documents, including the Will… .

Question: Where did you get the Will from?

Answer: It was brought up in a box on the table. Everything was brought up in a box. When I get there, I was supposed to sort it, put what’s supposed to go in the garbage, put – you know, we – we were just sorting stuff to, you know, get what’s supposed to be thrown out and what’s supposed to be kept.

Question: Who brought it up?

Answer: I don’t know.

Question; Prior to now, you’ve never mentioned giving Denise this Will? …

Answer: Yes, I did. I told my lawyer that I did give Denise the box that include the Will. All the legal documents.

The Deceased’s Medical Condition Before the Execution of the Will in January 2019

[33] Following his death, the deceased’s family doctor, Dr. Rajendra Beharry, provided the following letter dated October 18, 2019:

This letter is written at the request of Mr. Augustus Forde’s daughter, Ms. Denise Dockery, on behalf of her deceased father.

Mr. Forde has been my patient for over 20 years. He was a regular patient of mine until the end of his life. Mr. Forde had a number of medical conditions, the most severe being metastatic prostate cancer which caused his death.

Although Mr. Forde did not have a formal assessment of his cognition or testamentary capacity, he was always well groomed and demonstrated a good understanding and ability to take his medications. He was compliant with his appointments and received supportive care from Ms. Dockery and her son Jason, especially after the death of his wife in December 2018.

I have no reason to believe that Mr. Forde had any cognitive impairments.

Kindly contact me should you require further information. [Emphasis added]

[34] However, Dr. Beharry’s assertion that he has no reason to believe that Augustus had cognitive impairments should be viewed in the following context:

(a) A one-page excerpt from Dr. Behar’s records seems to indicate that Augustus was diagnosed with “vascular dementia” in 2011.

(b) A geriatric consultation note by Dr. Andrew Baker, Humber River Hospital, dated September 12, 2016, on which Dr. Beharry was copied, and prepared after Augustus had suffered a stroke in 2014 and 2016, states:

Mr. Forde is an 81-year-old who was admitted to hospital between September 3 and September 9. He came back on September 3 as a code stroke from Toronto Western Hospital. At that time, he had a workup which failed to show any new stroke. … He no sooner got home, and he was sitting and then he apparently had an episode of unresponsiveness while on the couch. His daughter found him that way when she returned from the market. He was brought back to hospital. He was readmitted. …

Mr. Forde was able to answer some basic questions for me. He is particularly good when it comes to past events. He told me that he was from Guyana, what year he came to Canada, what his occupation was in Guyana and in Canada. He identified the number of children that he has, including the ones from his marriage and two children out of marriage in Guyana. Interestingly, he does not make eye contact at all during our conversation. He does not actively appear to be hallucinating. He is not agitated. He is not delusional. …

This gentlemen’s past history includes knee replaced in 1999, Type 2 diabetes, hypercholesterolemia, stroke in 2014.

Mr. Forde was seen in 2014 at the Toronto Western Hospital Memory Clinic. At that time, he scored 11/30 on the Montreal Cognitive Assessment (he had a primary education from Guyana), his actual score was 10+1 and one additional point for less than 12 years of formal education. He was a stevedore in Guyana and a maintenance worker for the TTC for 28 years in Canada. He did not understand the instructions for the trail making part B test. He was able to complete 19 out of 24 items on trails A, 90 seconds without errors. He has not been driving. Interestingly, even in 2014, family had documented ten years of forgetfulness which was over the previous two years (back to 2012), and was associated with disorientation in the environment, poor memory, repetition, and inability to manage finances.

In September of 2015, he apparently had an MMSE of 19/30 and in September 2016 during his most recent admission, a Montreal Cognitive Assessment score of 14/30. …

IMPRESSION: Augustus Forde is an 81‑year‑old gentleman with a history of cognitive impairment going back to better part of 12 years but realistically the better part of four years with functional impairments. It does seem to have a vascular cause, as he had a cerebellar infarct going back to at least 2012 and at least a second stroke event. His working diagnosis since 2014 has been vascular dementia. …

On the bases of his cognitive issues, I think Mr. Forde is functioning more or less at the level of someone with a Montreal Cognitive Assessment score of around 14. He had been managing his ADLs [Activities of Daily Living], but has been dependent in IADLs [Instrumental Activities of Daily Living]. He did not recall being seen previously for his memory at Toronto Western Hospital until I cued him about it. Even then, I think he just agreed with me rather than recalling the events. …

I suspect Mr. Forde will probably rebound.

[Emphasis added]

(c) A note dated September 13, 2016, written by Sara Asadinik, an occupational therapist at the Humber River Hospital indicates that Augustus scored 21/30 on a MMSE cognitive assessment one day earlier. Her notes state that Augustus:

… was aware that he has poor memory, agreed to MMSE cog ax in English, pt scored 21/30 below normal range indicating mild cog impairment. Pt scores breaking down as follows:

Orientation to time: 1/5 (pt reported year as 2020, season: spring, day: Wednesday, date:16) Registration:3/3 Attention: 3/5 (serial 7 reported as 93, 87,80, 77, 70) Recall:3/3 Naming:2/2 Repetition:1/1 Comprehension:3/3 Reading:1/1 Writing:1/1 Drawing:0/1

Pt lost points mainly in orientation, attention and higher executive task of drawing. … [Emphasis added]

(d) In a letter dated September 10, 2018, from Dr. Michelle Solzberg, St. Michael’s Hospital, to Dr. Beharry, it is noted that Augustus was referred to the hospital for anemia. Dr. Solzberg noted that “… he tells me his wife is currently hospitalized and has significant issues with memory, although he cannot remember where she is hospitalized presently.”

(e) In a letter dated November 18, 2018, Dr. Brandon Tanenbaum, a pharmacist, sent a letter to Dr. Beharry stating that he had come to the conclusion that Augustus was incapable of managing his medication regime on his own because “the current medication regime is complex” and as a result would be dispensing his prescriptions on a 14‑day supply basis. At the time of this letter, Augustus was prescribed about 14 prescription medications: See Exhibit 24 to Roxanne’s affidavit.

[35] On January 14, 2019, Augustus saw Dr. Beharry for a bladder issue. His notes state “… Patient just lost wife, he does not feel that he is eating or sleeping as normal …”

Roxanne’s Request for a Family Meeting

[36] About two weeks after Rotha’s death, Roxanne states that she requested a family meeting with her siblings and father. Her letter dated January 10, 2019 to Denise with a copy of Steve and Earle states:

This letter serves as a formal request for a Forde family meeting to be held at [Augustus’ home] on Sunday, January 13, 2019, between the hours of 12:00 pm – 4:00 pm. This meeting is for the four siblings, [Steve, Earle, Denise, Roxanne] and our father … .

The purpose of this meeting is to discuss our late mother, Rotha (Sheila) Forde’s Estate. Please bring the following to the meeting:

1. Power of Attorney relating to Roth Forde …

2. Last Will and Testament of Rotha Forde

3. Recent bank account statements for the four accounts we know of, and any other accounts unknown to us but known to you

4. All financial investments such as stocks, bonds, GICs, gold, silver, etc.

5. Deeds to any and all properties or assets in the interest of Rotha Forde’s estate

6. Any outstanding debts attributable to Rotha Forde

7. Rotha Forde’s personal information (ie., SIN, Health Card Number)

8. Rotha Forde’s doctor’s name and phone number

9. Other – anything that is not included in this list but is associated with Rotha Forde’s Estate

In addition, this meeting will also serve as an opportunity for us to discuss how to provide the necessary care for Dad’s quality of health, life and wellbeing.

Please ensure that all the siblings are made aware of this very important meeting.

[37] Roxanne states that Steve’s daughter, Jameelah Henry, helped her draft this letter.

[38] As will be described below, this meeting was held on February 3, 2019.

Report of Elder Abuse and Assault to the Toronto Police Service

[39] On Thursday, January 10, 2019, being the same day that Roxanne sent the above letter requesting a family meeting to her siblings, Steve’s daughter, Jameelah Henry, contacted the Toronto Police Service to report that:

(a) Augustus was “being taken advantage of by Denise, and that [Augustus] was not receiving the care he required … [his] house was dirty, with piled up dishes, garbage that had not been removed, and that [Augustus] only had a wooden chair to sit on”; and,

(b) Denise had slapped Jameelah’s face.

[40] Roxanne states that she did not ask Jameelah Henry to call the police, nor did she tell Roxanne that she was going to call the police.

[41] A few hours later, the police spoke with Augustus in home. Their report states:

[Augustus] was rational and appeared to be in control of his faculties. [Augustus] advised that there had indeed been a verbal argument between [Jameelah] and Denise on the previous Wednesday, but there had been no assault. [Augustus] further advised that he had not been out since his wife’s funeral, but only because he did not have the desire to leave the house. [Augustus] told officers that Denise had been his power of attorney for quite some time, and he trusts her to handle all of his affairs.

Officers noted that the entire house was immaculate, appeared to have been recently and completely renovated, with plenty of food in the fridge, and a complete complement of furniture (including chesterfields and a full dining room set).

While speaking to [Augustus], Denise arrived and spoke separately to Constable BAIRD. …

At the time of this report, the initial investigating officers belief that there are no grounds for arrest, and that the allegation of assault is unfounded.

[42] The police officer’s notes also state that the allegation of elder abuse was unfounded.

[43] Denise states that Roxanne and Jameelah were “always acting together when it came to my father”.

The Preparation of the Will

[44] Denise states that the deceased ask her in January 2019 to find a lawyer. Denise stated in cross-examination that she spoke with Earle and Steve about the need for Augustus to get a Will done but did not speak with Roxanne because she was not going to be a beneficiary.

Question: So, then, why did you not include Roxanne in these conversations, then?

Answer: … I didn’t keep it a secret from anyone other than the fact that Roxanne was not part of the Will. Therefore, there was no reason to involve her in the Will. I involved everyone my parents told me would be in the Will. So, it was not a secret to anyone else. It was only kept from Roxanne because she used to badger my parents about money.

[45] Denise also stated that her father made the decision not to have Roxanne included in the discussions regarding his Will because she would not be a beneficiary.

[46] Denise stated that she was referred to Ms. Ehinlaiye by her real estate lawyer who happened to be Ms. Ehinlaiye’s spouse. Denise contacted Ms. Ehinlaiye to arrange a meeting. Denise was provided with a Will Intake Form which she completed and returned by email on January 2, 2019. She asked Augustus for information, such as a description of his assets, that was needed to complete this form. The Intake Form states that Augustus would like his assets to be distributed in the following shares:

Denise – 40%

Earle – 30%

Cedric – 20%

Frederick’s children – 10%

[47] Denise states that she and Augustus arranged the meeting to attend Ms. Ehinlaiye’s office. In response to a request from Ms. Ehinlaiye, on January 7, 2019, Denise sent Ms. Ehinlaiye an email describing the names of Frederick’s children.

[48] The first of two meetings was held on January 8, 2019. Augustus, Denise and Steve attended. Before taking Augustus into the conference room, Ms. Ehinlaiye told them that she needed the children to be out of the room so that she could receive Augustus’s instructions. Denise states that neither she nor Steve were present when Ms. Ehinlaiye reviewed the Intake Form with Augustus.

[49] On January 15, 2019, Denise and Augustus returned to Ms. Ehinlaiye’s office.

[50] Ms. Ehinlaiye prepared the deceased’s Will. She had no prior dealings with him. Her evidence is as follows:

1. I am the solicitor who prepared the Last Will and Testament of the late Augustus Kenrick Forde, of the City of Toronto, who died on May 5, 2019.

2. I was called to the bar of the Law Society of Upper Canada in January 2014 and called to the Bar of the Nigerian Bar Association in May 1995.

3. I am informed by Denise Dockery, a beneficiary and the name Executor in the deceased’s Will, that the court requires her to provide a letter indicating that the deceased had mental capacity to instruct me for the preparation of a Will.

4. While I do not qualify as a medical personal, I can speak to the deceased capacity to instruct me, based on my interactions with him on the two occasions that I met him.

5. I first met the deceased on January 8, 2019 to interview him ascertain his instructions for final Will. The deceased answered questions that were posed to him in a reasoned manner. For example:

(a) The deceased confirmed the date of our meeting. He knew the day was Tuesday, January 8, 2019;

(b) The deceased told me about his failing health since the passing of his wife;

(c) When I asked the deceased how many children he had, he mentioned a daughter who was not part of my instruction at the time. The deceased mentioned that the name of that daughter is Roxanne D. Forde, who sometimes goes by the name Roxanne Forde-Gooden.

6. Based on this new information that the deceased provided, I informed him that I was obligated to include Roxanne Forde in the Will, along with his instructions, as the Will could be contested in the absence of any explanation as to why she was excluded from being a beneficiary under the Will. The deceased gave me his permission to do so.

7. I thereafter [set] an appointment to meet with the deceased the following Tuesday, January 15, 2019, to go over and sign the Will.

8. On January 15, 2019, the deceased attended at my Toronto office as scheduled. Nothing seemed out of the ordinary. I read the Will over to him and when he did not understand a term, he paused and asked me to clarify, which I did.

9. In my experience, the deceased had capacity to instruct me on his last Will and testament and he had capacity on the day the Will was signed.

10. The Will was witnessed by my law clerk at the time, Ms. Chinaza Akobi, only witnessed the deceased signature and was not present during my meetings with the deceased.

[51] Ms. Ehinlaiye made the following notes to her file:

• She received an email on December 31, 2018 from Denise “Email referral from Toronto office, Denise Dockery Will for her father. Contact her in New Year”. Ms. Ehinlaiye subsequently learned that Denise had been a client of her husband.

• On January 2, 2019, she received a blank intake form from Denise. Denise gave her father’s telephone number to Ms. Ehinlaiye who, in turn, called the deceased to make arrangements to meet. The deceased indicated that his wife had recently passed away and that he has been sick. She explained to Denise that “he’s the client and would need to obtain instructions from him, not her”. A meeting was scheduled for January 8, 2019.

• On January 8, 2019 she received an email with the names of the grandchildren who are to be beneficiaries.

• Her initial meeting with the deceased was held on January 8, 2019 at 11:35 am. Her notes state:

o Arrived with son and Denise Dockery

o Introductions

o Client looks frail, asked if he was ok. Denise says he’s not been well. Client says he’s feeling better today than yesterday. Why? (I asked) he didn’t think he could move; he’s not been doing too good

o Doesn’t want water (water offered)

o Does he know why he’s here – yes, to do a Will. (Asks) Am I the lawyer? Yes.

o Need children to be out of the room so I can hear his instructions. No, they have been taking care of me. Nothing to hide.

o Was he forced to come today? No

o Was he forced to prepare a Will? No

o Does he know about the instruction [Denise] sent via email? Yes. I want you to look and tell me if this is what you want in your Will. Tell me what it says: Yes. But, wants to clarify with [Denise] [percentage] for grandkids. Back & forth over 10% or 5%. Reminds him his instruction says 10%. Reason for change? Remain the same? Will get back to me. How? Through Denise. Why doesn’t he pick phone? Tired and sometimes sleeping don’t hear the phone ring. OK to take instructions from Denise. No. Will effect changes that he wants at the time that he comes to sign. OK

o Previous Will? Yes, long, long ago.

o Copy? Can’t find it. He thinks its missing.

o Previous marriages or common law? No only one wife.

o Where is she? Looks surprised at me! Didn’t she (Denise) tell you? My wife passed away December. Condolences.

o When in December? 15th. Do you know date today? January … Tuesday, yes 8 January .

o Are all your children listed on this instruction? Yes

o Do you have any other children? Yes

o Son in Guyana. Never been to Canada. First child before his marriage. Promised wife that child would not be part of Will. Have done everything he can for him. He’s an adult. He’s ok.

o Any other? Yes. Daughter Rosanne (spelling). Why is she left out? Looks sad. She’s uncaring. Don’t come around. Didn’t take care of her mother until she was dying. $25K downpayment abandoned them. Sad. Don’t want to put her name in his Will. Emphatic. Why? Will have to mention her & reason for exclusion. No, but if that’s what I advise.

o Will prepare Will and will meet next week.

o Anything else let me now. OK.

• Her notes for the second meeting on January 15, 2019 state:

o Client looking better than last meeting. More cheerful.

o How are you today? Better, stronger. Laughs

o No water

o Reviewed Will. OK. Signed. Witnessed.

o Denise credit card. No. Cash or cheque. Will do etransfer. OK

[52] On cross-examination, Ms. Ehinlaiye stated:

• She was a sole practitioner. Her husband is also a lawyer, and his practice is limited to real estate law.

• From her call to the Bar in 2014, to her retirement in January 2024, she primarily worked in the area of family law and to a lesser extent, estates.

• Her general practice with respect to obtaining instructions from a client was to obtain them by meeting them in person. If the client have family members or others working with them, she will have a Will intake form sent to the email provided. In turn, she will later discuss the content of the Will intake form with the client in person.

• Her general practice with respect to obtaining instructions from a client was to obtain them by meeting them in person. If the client have family members or others working with them, she will have a Will intake form sent to the email provided. In turn, she will later discuss the content of the Will intake form with the client in person.

• To ascertain her client’s capacity when she meets with them, counsel asks a variety of questions, such as their origin, their background, the extent of their estate, their age, today’s date, why is today different from yesterday.

• She does not prepare a reporting letter after having prepared a Will

• In respect of the Intake Form:

o The deceased’s home is indicated as his address but not in his list of assets

o The form states that “all other assets including jewelry, household items, etc. is to be distributed by my trustee Denise Dockery”

o She did not ascertain the value of the jewelry

• In respect of the first meeting on January 8, 2019:

o Although the deceased was content to have his children present at his first meeting with Ms. Ehinlaiye, she insisted that Denise and her brother leave the room and they did so. The children left the conference room and remained in the reception area until the meeting with the deceased was completed.

o At the time of the meeting, Ms. Ehinlaiye was unaware that the deceased had suffered a stroke in 2016 nor that he had suffered from certain conditions of dementia.

o She did not recommend that the deceased undergo a capacity assessment because it did not appear that he needed an assessment however she would have been concerned had she known that the deceased scored 14 out of 30 on a capacity assessment in September 2015.

o The deceased stated that he had a prior Will that was made about 20 years earlier that he could not find

o She reviewed the intake form with the deceased alone

o She asked questions for the purpose of ascertaining whether or not he was being unduly influenced by a potential beneficiary

• In respect of the January 15, 2019 meeting:

o The deceased was brought to the meeting by Denise and a man.

o Ms. Ehinlaiye met with the deceased in a conference room.

o Prior to this meeting, Ms. Ehinlaiye spoke with a mentor for assistance in drafting a clause to explain why Roxanne was being excluded.

o Before he signed the Will, Ms. Ehinlaiye read and explained its terms to him.

o Ms. Ehinlaiye did not ask about the amounts in the deceased’s bank accounts.

[53] The evidence of Chinaza Akobi, the law clerk who witnessed the execution of the Will, is as follows:

… I first met the deceased on January 8, 2019 when he attended at our Toronto office to meet with Ms. Ehinlaiye. I did notice that the deceased and Ms. Ehinlaiye chatting as she took notes.

From my observation of other clients that attend our office, the deceased did not act or do anything that would make me question his capacity.

On the second occasion that the deceased attended at my office, I was present when Ms. Ehinlaiye asked me to witness the deceased’s signature on his Will. During this time, I noticed the deceased asked Ms. Ehinlaiye to clarify a legal term, which she did.

I observed Ms. Ehinlaiye asking the deceased if he had any other questions, and when he said he had none, Ms. Ehinlaiye pointed at the area where the deceased was to append his signatures.

I recall that deceased taking his time to go over each page ensuring that he had signed each page, following which I witnessed his signatures along with Ms. Ehinlaiye.

The Will

[54] On January 15, 2019, Augustus signed his Last Will and Testament (the “Will”). In his Will, the Augustus designates his children Denise, Earle, Steve, and Frederick’s children as the beneficiaries of various assets and the residuary of the estate in the following proportions:

(a) Denise, a 35% interest

(b) Earle, a 30% interest

(c) Steve, a 25% interest

(d) Frederick’s children, a 10% interest

[55] When compared to the instructions in the Will Intake Form, it is apparent that Augustus changed his instructions when he met with Ms. Ehinlaiye in private by:

(a) Reducing his bequest to Denise from a 40% to 35% share of his Estate.

(b) Increasing his bequest to Steve from a 20% to 25% share of his Estate.

[56] The Will makes no provision for neither Roxanne nor William.

[57] In respect of Roxanne’s exclusion, the Will states:

For the purpose of this my Will, I DIRECT and so INSTRUCT that my daughter Roxanne D. Forde (also known as Roxanne Forde-Gooden), hereinafter known as “Roxanne” shall be excluded as a beneficiary in this my Will. It is my desire that the sum of $25,000.00, … given to Roxanne for the down payment of her home located … Mississauga, Ontario … shall constitute a full and final inheritance from me.

[58] On examination, Ms. Ehinlaiye’s evidence was:

I understood what he said. "She’s uncaring. She doesn’t come around. Didn’t take care of her mother until she was dying. 25K down payment. Abandoned them. Sad." So, this is the content -- he's talking, and like I said, I can only write as fast as I can. I didn’t put everything, but I am noticing all of this. So, he’s pausing and he -- there's -- he's grimacing or shaking his head and he has his hand like that. He was sad. I remember that. He was pretty sad and he -- yeah.

He said he didn’t want -- he didn’t want me explaining her in the Will. He didn’t want her in his Will at all. … [I said she] needs to know why she’s not included in the Will, and he gave his permission for me to add her in the Will. So, from the way the Will is, you’ll see it’s almost like I had to put it -- bottom part on that same day when he came just so that I don’t -- we're not re-writing everything all over. So, he was in the conference room when we had to add that to that. That clause to the Will.

[59] Unlike the above provision relating to Roxanne, the Will does not contain a provision that explains William’s exclusion as beneficiary. Ms. Ehinlaiye’s notes explain the reasons given for William’s exclusion as follows: “Son in Guyana. Never been to Canada. First child before his marriage. Promised wife that child would not be part of Will. Have done everything he can for him. He’s an adult. He’s ok.”

The Deceased’s Medical Condition After the Execution of the Will

[60] On February 20, 2019, the deceased went to a hospital due to significant abdominal pain. He was diagnosed with metastatic cancer. In an emergency room consultation note, dated February 21, 2019, Dr. Jamie Speigelman described his observations one day earlier. His impression was as follows:

This is an 83-year-old man with a significant history, including likely dementia, some degree of failure to thrive chronically, presents with increasing abdominal pain, CT scan findings are suggestive of metastatic cancer, likely prostate. Given this presentation, I will admit him to the hospital, under the oncology service. …

Unfortunately, [I] am unable to really get a sense of his goals of care based on his cognitive status currently. This should be reassessed ongoing basis. I suspect that his treatment plan would be more of a palliative approach … [Emphasis added]

[61] On February 21, 2019, a palliative consultation note prepared by Dr. Steven Rubenzahl, states:

I reviewed this gentlemen’s file today, examined him and then I had a lengthy discussion with his daughter Denise who is his official power of attorney.

This gentleman lives on his own, but he is dependent on his daughter, his grandson for meal preparation, shopping, cleaning etc.

He has occasionally wandered but there has been no accidents in the house. He does not cook or do meal preparation.

He has been diagnosed with dementia probably sometime in the last year or two.

Unfortunately, his wife died about 3 months ago and he has been depressed since that time.

He has not wanted to [be] out of the house and he certainly did not want to be in hospital as his wife died in hospital recently. …

When I came to see him, he was somewhat fatigued and quite slow in his verbal responses.

He knew his address but was not able to tell me specifically where he was or what circumstances brought him to hospital.

He denied pain but really was unable to answer a lot of detail questions about his overall complex.

On cursory examination he appears pale and frail. …

[62] In a note dated February 21, 2024, Dr. Jamie Speigelman, on February 24, 2019, Dr. Punam Rana, an oncologist, recommended starting treatment for this cancer. However, her notes indicate that: 1) “… the patient is not able to provide me with consent, as he is not able to recognize his diagnosis and the implications due to significant dementia”; and, 2) “patient admits he is not aware of why he is admitted to hospital. He states that I can call his daughter. He states that his wife recently died in December”.

Events After the Execution of the Will

Family Meeting

[63] At Roxanne’s request, a family meeting held on February 3, 2019 at her parents’ home. Roxanne, Denise, Steve and Augustus attended. Earle joined by telephone. Denise refused to provide any of the requested documents. Using her cell phone, Roxanne made a surreptitious audio recording of the meeting which was transcribed into a 29-page document.

[64] Roxanne asked Augustus to decide whether she could see Rotha’s Will as well as his Will. She stated:

ROXANNE: I want -- I want to see the Will, if—Dad and Mom for the Will together, okay? That should be presented, okay? If there's a guarantor for Dad, it need to come on the table because Dad has all his faculties. He can still make his decision, so therefore --

[65] A largely unintelligible discussion ensues, much of which relates to the suggestion by Steve that Rotha wanted her home to be given to him on their death. Roxanne further states:

ROXANNE: Now, what I'm saying, Steve, what I'm saying is that Dad is of -- of -- of -- he has all his faculties. He may be -- he -- he may be diagnosed with dementia, but he not a full-blown dementia person and he could still make decisions. He can still make decisions. [Emphasis added]

[66] When asked by Earle who he would like to be his power of attorney, and after being told by Roxanne that it could not be one person, Augustus said “Who would I like to be the power of attorney? All of you”.

Roxanne Meets with Hospital Social Worker

[67] On February 26, 2024, after his cancer diagnosis, Roxanne met with her father’s social worker at the hospital, Rita Wilder-Craig, to express her concern about Denise’s care of Augustus. Ms. Wilder-Craig’s notes state:

I met with Roxanne and her daughter this morning. They told me that their sister Denise was a para-legal and supposedly had a POA document, although they had not seen it. They told me Denise did not want their father to speak to anyone without her being there. They suggested that other family members may not [be] acting in the best interest of their father/grandfather, etc. They asked for my assistance. I suggested that they call the Advocacy Centre for the Elderly and ask for advice. The granddaughter said they had already done this and were told that pt has to call himself before they could assist him. I also told them about the Public Guardian and Trustee who should be able to advise them if they believed pt was not being cared for properly or if family were making decisions that were in some way objectionable (ie., pt was not able to act for himself). At this time pt is acutely ill and is being worked up. I met with him this morning. He was in some discomfort and could not properly engage.

[68] A further note by Rita Wilder-Craig later on February 26, 2019 states:

Pt is alert and oriented to person, place and time. He doesn’t appear to have complete insight about his diagnoses or prognosis. The family visited today at different times of the day. Pt verbalized to writer today that he wants all his children to make decisions for him. He has four children, but Denise is the POA. She brought in the POA documents which were photocopied by the clerk to add to the pt chart. The children have personal differences which is why Social Worker is to continue to monitor the situation.

[69] When asked on cross-examination, Denise stated that hospital staff never recommended that Augustus undergo a capacity assessment.

Roxanne Brings a Lawyer and a Financial Planner to the Hospital

[70] On March 5, 2019, a hospital social worker, Christine Mitchell, learned that Augustus had told staff that he was concerned that his daughter would bring a lawyer to the hospital to have him sign a document. Her notes state:

The writer spoke to unit SW who relayed that there is a concern with the pt other daughter bringing a lawyer to the hospital to have pt sign some sort of documents. This writer met with pt. and family again and inquired about the documents. Pt son and daughter relayed that they are not sure what pt sister will do, but there is some indication that she may have hired a lawyer and will ask pt to sign documents. This writer encouraged pt not to ever sign any documents, and to call nursing staff if he feels pressured. Pt reports that he feels a lot of upset about this. This writer offered emotional support. He confirmed that he will not sign any documents presented to him. [Emphasis added]

[71] On March 8, 2019, a lawyer and a financial planner visited Augustus while he was in the hospital at Roxanne’s direction. Augustus was “visibly upset” by their presence and did not want to speak with them. Augustus was found by the social worker lying flat in his bed holding his sheets when the two men were in his room. Augustus thanked the social worker for “getting them out of here”. Roxanne was under the mistaken belief that her father had one week to live and told him so. In fact, the doctors believed that Augustus had up to three months to live. A further note by Victoria Goldson, on March 8, 2019, which is disturbing to read, states:

[Social Worker] was advised this am by Nursing Staff that pt was being visited by two male visitors, one of which was a lawyer. [Social Worker] was asked to go and assess the visit pt was having with these two male visitors.

[Social Worker] went to pt’s hospital room and found pt lying flat in bed with his bed covers being held by self and role (sp) to pt and to the two visitors. [Social Worker] asked pt if he was OK.

Response: Pt did not answer [Social Worker] but looked to the two males who were at his bed side.

Action: [Social Worker] asked the two men about the nature of their visit to pt

Response: The younger male told [Social Worker] that he was a financial planner and a friend of pt’s dtr Roxanne Forde, the other male told [Social Worker] that he was a lawyer and was asked to come to hospital today to speak to pt about whether had a Will and pt told him that he did have a Will.

Action: [Social Worker] asked the lawyer for his business card and asked both the lawyer and the other male to leave pt’s hospital room and come speak to [Social Worker] in a Consult Room across the hall from pt’s hospital room. As [Social Worker] was escorting these two males to the Consult Room, pt’s dtr Roxanne Forde peeped her head around the corner of the hallway. [Social Worker] asked Roxanne to join [Social Worker] meeting with the two male visitors in the Conference room. [Social Worker] when to check on pt after the males left his hospital room to see how pt was.

Response: Pt told [Social Worker] “Thank you for getting them out of here. I didn’t want to speak to them”. Pt confirmed that he was “OK now”.

Action: [Social Worker] spoke with dtr Roxanne and her financial planner/friend and the lawyer, Mr. Ian R. Thornhill, … about their visit with pt. [Social Worker] shared with Roxanne and Mr. Thornhill that pt’s daughter presented to [Social Worker] pt’s Notarized Power of Attorney Documents for Personal Care and Continuing Power of Attorney – Property General prepared by Paul A. Crum-Ewing. …dated October 29, 2018 in which pt appoints dtr Denise Dockery as his POA.

Data: [Social Worker] asked by Roxanne if she knew who Paul A. Crum-Ewing is and she stated that Mr. Crum-Ewing is pt’s lawyer, and that she called Mr. Crum-Ewing ‘s office and reportedly spoke to one of his secretary and was reportedly told that pt “has no Will” and that “Mr Crum-Ewing knows family well and the problems between my sister and I”.

Action: [Social Worker] advised Roxanne that her father was “visibly upset” by Mr. Thornhill’s visit and her financial planner friend and that she should not facilitate any future visits by legal professionals while pt is in HRH awaiting a palliative care placement into Baycrest PCU.

Data: Mr. Thornhill suggested to Roxanne that pt “should be dealing with his own lawyer, Mr. Crum-Ewing who is well known to him and the family”

Action: [Social Worker] advised MRP of the visit of a lawyer and financial planner friend of Roxanne which pt indicated to [Social Worker] that he was upset about.

Data: [Social Worker] received a call later in the day from pt’s daughter Denise who was very upset after being informed by her brother that pt told him today when he came to visit pt that Roxanne had sent a lawyer in to see him at his bedside this am to talk to him about “doing a Will”

Action: [Social Worker] updated POA Denise on the outcome of the visit that [Social Worker] interrupted.

Response: Denise shared with the [Social Worker] that pt has a Will and that she is named Executor in his Will. …

Data: Pt’s dtr Roxanne came to see [Social Worker] later in day to “apologize for upsetting my dad”

Action: [Social Worker] advised Roxanne that her issues with her sister need to be kept in check and that she should not be upsetting her father with her visits. [Social Worker] also advised Roxanne that the matter of whether pt has a Will or not is a conversation she should have with her brothers if she is not speaking to her sister Denise. [Social Worker] reminded Roxanne that pt reportedly told Mr. Thornhill and her financial planner friend that “he did have a Will” and that he told [Social Worker] that he “did not want to talk to these men”. [Social Worker] was asked Roxanne if she told pt that he was 1 week to live as [Social Worker] was advised by dtr Denise that pt reportedly told pt this yesterday

Response: Roxanne told [Social Worker] that she “did tell my Dad this, but then I spoke with the Doctor, and he told me that was not correct”.

Action: [Social Worker] told Roxanne that the discharge plan for her dad is to make an application to have him go to Baycrest Palliative Care Unit and that the life expectancy on the application is less than three months not one week. [Social Worker] encouraged Roxanne to have supportive loving visits with pt and not bring any more drama into her visits with pt while he is here and when he moves to a PCU.

Response: Roxanne profusely apologized to [Social Worker] for upsetting pt today … [Emphasis added]

[72] On examination, Roxanne denied telling Augustus that he had one week to live.

[73] She also denied that Augustus had pulled his sheets up to his chin when the lawyer and financial planner attended his room. When asked whether she agreed that the social worker had no reason to fabricate this statement, Roxanne stated “No, I would not agree with you” without explanation.

[74] On examination, Roxanne stated that she invited Mr. Thomas, her friend and financial planner to go to the hospital and meet with Augustus because he told Roxanne while he was in the hospital that he repeatedly told her that he wanted his son William Forde, who resides in Guyana, to receive something on his death. She stated:

I spoke with my dad, and he keeps saying he wants his son William to get something. So, I said, “Dad, where’s the Will?” He said he don’t know. I said “I gave it to Denise”. He said he don’t know. Then I asked him again. He said he was advised there was a Will. However, he don’t know what’s in the Will. He said “Never mind, I will take care of it”. …

I advised him it would be in his best interest to – to get someone to talk to him. They only come to talk. That’s all. [Emphasis added]

[75] I do not accept Roxanne’s evidence that Augustus told her that he did not know what was in the Will but on the other hand he wanted another Will prepared to include his son William as a beneficiary. Those are inconsistent assertions. I do not accept her evidence that he told her that he wanted to make another Will to make a bequest to his son William Forde given that he had already told Ms. Ehinlaiye less than two months earlier that he had promised his wife that William would not be included in his Will. Further, had he wished to change his Will it is my view that he would have told Denise, whom he trusted, rather Roxanne. Further, had Augustus wanted to make another Will, he would not have been visibly upset by the presence of Messrs. Thornhill and Thomas.

[76] Subsequently, Mr. Thomas provided Roxanne with a letter dated December 31, 2019, which states:

This letter serves to confirm that on March 8th, 2019, at 10 am at the Humber River Hospital I was present at Mr. Forde’s bedside when he confirmed that he had a Will prepared but was not aware of the contents of the Will.

[77] This letter was not in affidavit form, and I decline to give it any weight. The statement that Augustus told them that he was unaware of the contents of the Will should, in these circumstances, be viewed as the refusal of a terminally ill gentlemen to discuss the contents of his Will with two uninvited and unknown strangers. It’s difficult to fathom why either Mr. Thomas or Mr. Thornhill would have attended at Augustus’s bedside to discuss his personal affairs without having been requested (whether by telephone or other electronic means) to do so by him. Their presence caused Augustus much unnecessary grief in his final days and there is no evidence that either of these two men apologized to Augustus for their actions.

[78] Further, the submission of Roxanne’s counsel in closing argument that Mr. Thornhill attended the hospital not at her request, but at the request of Mr. Thomas, is neither credible nor supported by the evidence. Roxanne did not tender any evidence from either Mr. Thomas or Mr. Thornhill to support this assertion. I find that Roxanne requested that Mr. Thomas bring a lawyer to the hospital for the purpose of having a new Will prepared for Augustus.

[79] On March 13, 2019, Augustus was transferred to the Baycrest Palliative Care Unit where he died about two months later on May 5, 2019.

[80] On March 23, 2019, Denise told Roxanne that Augustus had made the Will but refused to provide her with a copy of the Will.

[81] On or about June 24, 2019, Denise filed an application for a Certificate of Appointment as Estate Trustee for Augustus’ Estate which estimated value of the Estate to be about $408,000.00.

[82] On July 2, 2019, Roxanne filed a Notice of Objection which questions the authenticity of the Will but does not allege that Augustus lacked capacity or that he made the Will under undue influence. The Notice of Objection states:

Denise’s refusal to entertain open and honest dialogue concerning the estate of [our parents], to be transparent and exercise due diligence, led me to file this Notice of Objection with the Superior Court of Justice, underpinned by three significant points of objection:

1. Question of untrustworthiness and lack of transparency to act as an Estate Trustee of the last Will and Testament of [our father].

2. Question of the need for a Commissioner of Affidavit to countersign seems unusual in circumstances that were normal at the time of preparation and signing of the “alleged Will”.

3. Question of exclusions and inequity in the division of [father’s] estate seems uncharacteristic of the father that I have come to know and understand.

Summary

a) I (Roxanne) question the legality of the last Will and Testament of [our father]. I further worry whether our father dictated the Will, signed the Will or even knew what was in the Will.

b) It is inconceivable that dad would arbitrarily omit me (his oldest daughter), and any of his 17 grandchildren, and all 16 of his great grandchildren. Notwithstanding, the notarization of the “alleged” last Will and Testament, I came to know dad’s pre-disposition during the five months after the passing of our mother. It boggles my mind that our dad would consent to the “alleged” Will.

[83] This objection did not get resolved.

[84] Denise entered an agreement to sell the Home in the Fall of 2019 for $747,000 despite the fact that a Certificate of Appointment had not been issued. Pursuant to an Order granted by Justice Dietrich on October 23, 2019, a Certificate of Appointment was issued to Denise for the sole purpose of selling the home with the net proceeds of sale to be deposited into the trust account of her real estate solicitor, Mr. Olutoyin Ehinlaiye, subject to further order of the court. Denise was also ordered to return the original Certificate of Appointment of Estate Trustee with a Will to the Court, pending the resolution of this litigation. The sale was completed in November 2019.

[85] About four years later, on July 19, 2023, Roxanne commenced this application for, amongst other things, a declaration that the deceased’s Will was invalid for the following reasons:

(a) Augustus lacked testamentary capacity at the time that he allegedly gave instructions to prepare his Will and at the time that it was executed;

(b) The Will was procured by undue influence;

(c) The Will was executed under suspicious circumstances;

(d) Augustus lacked knowledge and approval of the contents of the Will.

ISSUES

[86] This application raises the following issues:

(1) Was the Will made under suspicious circumstances?

(2) Did Augustus know and approve of the contents of the Will?

(3) Did Augustus lack testamentary capacity at the time that the Will was made?

(4) Was the Will procured as a result of undue influence?

ANALYSIS

[87] To prove a Will in Ontario, its propounder has the legal burden to establish that: (a) it was duly executed; (b) the testator had the requisite testamentary capacity, and (c) the testator knew and approved of its contents: Neuberger v. York, 2016 ONCA 191, at para. 77. A Will may be challenged on the grounds of undue influence, forgery and fraud: See Roe v. Roe, 2024 ONCA 179 (undue influence); Smith v. Nevins, 1924 CanLII 70 (SCC), [1925] S.C.R. 619 (forgery); Mayrand v. Dussault (1907), 1907 CanLII 94 (SCC), 38 S.C.R. 460 (fraud).

[88] The legal burden of proof on the propounder of a Will can shift more than once. In Vout v. Hay, 1995 CanLII 105 (SCC), [1995] 2 S.C.R. 876, Sopinka J. stated:

26 … Although the propounder of the Will has the legal burden with respect to due execution, knowledge and approval, and testamentary capacity, the propounder is aided by a rebuttable presumption. 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.

27 Where suspicious circumstances are present, then the presumption is spent and the propounder of the Will reassumes the legal burden of proving knowledge and approval. In addition, if the suspicious circumstances relate to mental capacity, the propounder of the Will reassumes the legal burden of establishing testamentary capacity. Both of these issues must be proved in accordance with the civil standard. There is nothing mysterious about the role of suspicious circumstances in this respect. The presumption simply casts an evidentiary burden on those attacking the Will. This burden can be satisfied by adducing or pointing to some evidence which, if accepted, would tend to negative knowledge and approval or testamentary capacity. In this event, the legal burden reverts to the propounder. [Emphasis added]

Should It Be Presumed that the Testator Knew and Approved of the Contents of the Will and Had Testamentary Capacity?

[89] As noted above, if the Will was duly executed, after having been read over to or by a testator who appeared to understand it, then it will be presumed that the testator knew and approved of the contents and had the necessary testamentary capacity.

[90] The requirements for the due execution of a Will were described by Harvison Young, J.A., in Bayford v. Boes, 2021 ONCA 442, as follows:

29 The onus of proving the formal validity of a Will lies on the propounder of the Will, in this case, the respondent Brenda: see Vout v. Hay, 1995 CanLII 105 (SCC), [1995] 2 S.C.R. 876, at p. 887.

30 The requirements for the formal validity of a Will are set out at s. 4(1) of the SLRA, as it was at the relevant time:

(a) at its end [the Will] is signed by the testator or by some other person in his or her presence and by his or her direction;

(b) the testator makes or acknowledges the signature in the presence of two or more attesting witnesses present at the same time; and

(c) two or more of the attesting witnesses subscribe the Will in the presence of the testator.

31 The purpose of the statutory requirement of two or more witnesses is to prevent fraud by ensuring that there is probative evidence to support a conclusion that the testator wanted to give effect to the contents of their Will by signing it in the presence of others. The testator's intent is thus irrelevant to the formal validity of a Will.

[91] There is no dispute that the Will was duly executed.

[92] Further, the evidence of Ms. Ehinlaiye is that she read the Will to the deceased and that he asked questions which she answered.

[93] Given that the above requirements have been satisfied, I find that the court should presume that Augustus knew and approved of the Will and that he had testamentary capacity.

Is the Presumption that the Testator Knew and Approved of the Contents of the Will and Had Testamentary Capacity Spent as a result of the Presence of Suspicious Circumstances?

[94] In Vout, Sopinka J. stated, at para. 25, that:

The suspicious circumstances may be raised by (1) circumstances surrounding the preparation of the Will, (2) circumstances tending to call into question the capacity of the testator, or (3) circumstances tending to show that the free will of the testator was overborne by acts of coercion or fraud. Since the suspicious circumstances may relate to various issues, in order to properly assess what effect the obligation to dispel the suspicion has on the burden of proof, it is appropriate to ask the question "suspicion of what?"

[95] In my view, the Will was made under suspicious circumstances given:

(a) The deceased’s diagnosis of dementia and mild cognitive impairment.

(b) The fact that Denise, a beneficiary under the Will, was involved in arranging for the Will to be prepared.

(c) The secrecy surrounding the Will particularly as Denise notified some siblings about the preparation of the Will but did not notify Roxanne who was excluded as a beneficiary.

[96] As a result, I find that the onus rests with Denise to establish that Augustus knew and approved of the Will and that he had testamentary capacity at the time that he gave instructions and signed the Will.

Knowledge and Approval

[97] The test for whether a testator knew and approved of the contents of their Will is as follows:

The common law has always held that the key to the validity of a Will is not having sufficient sight to read it, or sufficient education to be able to read and understand it, but whether the testator fully understood what was in the Will and whether the Will as written represented the testator’s intentions. It has never even been necessary that the Will be read over to a blind testator: Sikora Estate (Re), 2015 ABQB 374, at para. 42; Garwood et al v Garwood et al, 2017 MBCA 67, para. 18.

[98] At the first meeting with Ms. Ehinlaiye, the lawyer who prepared his Will, asked Augustus if he knew why he was at her office and he responded that he was there to make a Will. He confirmed that he was not forced to come to her office nor to prepare a Will. When she showed him the instructions in the Will Intake Form that Denise had sent to her and asked him whether he wanted those terms reflected in his Will, Augustus went into a discussion about the specific percentage to be left to some of his children and grandchildren. Ultimately, Augustus decided to slightly modify the percentage of assets that would be gifted to certain of his children under the Will from the percentages shown in the Will Intake Form. He also explained why he did not wish to leave a bequest to his children Roxanne and Steven.

[99] At their second meeting, Ms. Ehinlaiye’s evidence is that she read the Will over to Augustus and when requested she provided clarification. This evidence corroborated by her law clerk, Ms. Akobi, who states that she was present on the day that Augustus reviewed the draft Will and that she observed: 1) Ms. Ehinlaiye explaining a legal term at the request of Augustus; 2) Ms. Ehinlaiye asking Augustus if he had any other questions and he responded that he did not; 3) Augustus sign the Will.

[100] Given their discussions, and particularly the detailed nature of those discussions, I find that Augustus knew and approved of the contents of the Will and that the Will, as written, represented his intentions.

Testamentary Capacity

[101] In Hall v. Bennett Estate, 2003 CanLII 7157 (ON CA), [2003] O.J. No. 1827(C.A.), Charron J.A. stated, at paras. 14‑15:

14 Numerous cases have dealt with the question of testamentary capacity. It has often been repeated that a testator must have "a sound disposing mind" to make a valid Will. The following requirements can be extricated from the case law. In order to have a sound disposing mind, a testator:

• must understand the nature and effect of a Will,

• must recollect the nature and extent of his or her property,

• must understand the extent of what he or she is giving under the Will,

• must remember the persons that he or she might be expected to benefit under his or her Will, and

• where applicable, must understand the nature of the claims that may be made by persons he or she is excluding from the Will.

15 It is also clear from the jurisprudence that the test to be met to prove testamentary capacity is a high one and the onus falls on the propounder of the to Will. The jurisprudence abounds with statements that it is not sufficient simply show that a testator had the capacity to communicate his or her testamentary wishes. Those wishes must be shown to be the product of a sound and disposing mind as described above. …

Also see Joy Estate v. McGrath, 2022 ONCA 119, at para. 50.

[102] This test for testamentary capacity was re-stated in Stekar v. Wilcox, 2017 ONCA 1010, at para. 14:

The test for testamentary capacity has been well-established since the Supreme Court of Canada, in Skinner v. Farquharson (1902), 1902 CanLII 87 (SCC), 32 S.C.R. 58 (S.C.C.), adopted the formulation of the test offered in Banks v. Goodfellow (1870), L.R. 5 Q.B. 549 (Eng. Q.B.), at p. 565:

It is essential to the exercise of such a power [of testamentary capacity] that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties — that no insane delusion 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. [Emphasis added.]

[103] A diagnosis of dementia or cognitive impairment does not necessarily mean that a person lacks testamentary capacity. I adopt the views expressed by Goss, J. in From Estate, 2019 ABQB 988, at paras.121-124:

121 Testamentary capacity is a legal construct, medical evidence is not required: Stevens v. Crawford , 2001 ABCA 195 (Alta. C.A.) at paras 19 and 20, leave to appeal denied, (2002), [2001] S.C.C.A. No. 483 (S.C.C.); Mah v. Zukas Estate, para 56. Whether a testator has the requisite capacity to make a Will is a question of fact to be determined in all of the circumstances. The assessment is a highly individualized and fact-specific inquiry. In Laszlo v. Lawton, 2013 BCSC 305 (B.C.S.C.), the court stated at para 198:

Testamentary capacity is not a medical concept or diagnosis; it is a legal construct. Accordingly, scientific or medical evidence - while important and relevant - is neither essential nor conclusive in determining its presence or absence. Indeed, the evidence of lay witnesses often figures prominently in the analysis. Where both categories of evidence are adduced, it is open to the court to accord greater weight to the lay evidence than to the medical evidence, or reject the medical evidence altogether: Baker Estate v. Myhre (1995), 1995 CanLII 9056 (AB KB), 28 Alta. L.R. (3d) 428 at para. 39 (Q.B.); O’Neil v. Brown Estate , 1946 CanLII 13 (SCC), [1946] S.C.R. 622 [O’Neil]; Spence v. Price (1945), 1945 CanLII 339 (ON CA), [1946] 2 D.L.R. 592 at 595-96 (Ont. C.A.); James [James v. Field , 2001 BCCA 267] at para. 77; Miliwat v. Gagné, 2009 BCSC 1447, aff’d 2010 BCCA 323 [Miliwat].

122 Indeed, the evidence of lay witnesses can be preferred to the evidence of medical witnesses with respect to determination of testamentary capacity: Field v. James [ 2001 CarswellBC 815 (B.C. C.A.)], para 77; Stewart v. McLean, 2003 ABQB 96 (Alta. Q.B.), para 200; Sweetnam, para 802. As noted in Maduke Estate (Re), 2019 ABQB 90 (Alta. Q.B.), para 12, quoting Laidlaw JA in Spence v. Price [ 1945 CarswellOnt 376 (Ont. C.A.)]:

The quality of a person’s mind manifests itself by conduct and expressions of thought. The conclusions to be reached from such evidence do not depend for their correctness upon the possession or exercise of special skill or knowledge. A judgment may be formed by a person of sound mind and reason, exercising powers of observation and deduction, without the use of any scientific learning whatever. It is a practical question which may be answered by a layman of good sense with as much authority as by a doctor. The weight to be properly given to the evidence touching the question depends in part upon the extent of the observations made by a witness.

123 Memory is a critical requirement underpinning testamentary capacity: Wasylynuk v. Bouma , 2018 ABQB 159 (Alta. Q.B.) at para 127, aff’d 2019 ABCA 234 (Alta. C.A.), application for leave to appeal filed September 6, 2019, [2019] S.C.C.A. No. 316, 2019 CarswellAlta 1109 (Alta. C.A.) (”Wasylynuk”), citing Simpson v Gardners Trustees, (1833) 11 Ct of Sess Cas 1049 at 1051-52 (Scottish Ct of Sess); Murphy v. Lamphier (1914), 31 O.L.R. 287 (Ont. H.C.), aff’d (1914), 1914 CanLII 535 (ON CA), 20 D.L.R. 906, 32 O.L.R. 19 (Ont. C.A.); Fraser, Re (1932), 1932 CanLII 426 (AB CA), 26 Alta. L.R. 551, [1932] 3 W.W.R. 381 (Alta. C.A.) at para 19. In Simpson, Lord Cringletie explained to the jury that memory is the determining factor as to whether a deceased had sufficient mental soundness to understand and instruct execution of a deed as follows (at 1051-1052):

This may or may not injure or destroy the mind, and it appears to me that the grand criterion by which to judge whether it was injured or destroyed, is to ascertain the state of the memory. It is memory that affords us all the materials on which to exercise judgement, and to arrive at a conclusion or resolution. Without memory the mind cannot act, and it is the first of the intellectual faculties which fails, where the mind is in a state of decay.

124 This passage was later cited in Murphy v. Lamphier, where Chancellor Boyd discussed the role of memory in the assessment of testamentary capacity more broadly as follows (paras 111, 117):

. . . See the old citations used by Vankoughnet, C., in Menzies v. White (1862), 9 Gr. 574, 576, “that sane memory for the making of a Will is not at all times when the party can speak, read, or write, or had life in him, nor when he can answer to anything with sense, but he ought to have judgment to discern, and to be of perfect memory; that it is not sufficient that the testator be of memory when he makes his Will, to answer familiar and usual questions, but he ought to have a disposing memory, so as to be able to make a disposition of his property with understanding and reason, and that is such a memory which the law calls sane and perfect memory.” . . .

The question for decision was said to be, not whether the testator knew that, he was giving all to his wife and excluding all other relatives, but whether he was at that time capable of recollecting who those relations were, of understanding their respective claims upon his regard and bounty, and of deliberately forming an intelligent purpose to exclude them from any share in his property. This statement of the principle of decision has been approved in Banks v. Goodfellow (1870), L.R. 5 Q.B. 549, 568. [Emphasis added]

[104] I now turn to consider the requirements for testamentary capacity, described above, as they apply in this case.

[105] I find that Augustus understood the nature and effect of the will. He sought to make a Will given that his first Will had been lost. He understood that this Will would dispose of his assets on his death. Augustus attended Ms. Ehinlaiye’s office, twice, for the purpose of having his Will prepared. He gave considerable thought to what amounts he should bequest to various beneficiaries. Augustus also gave rational and responsive answers to questions asked about his instructions for the preparation of his Will. When Ms. Ehinlaiye read his draft Will to him, Augustus would ask questions for clarification.

[106] I find that Augustus understood the nature and extent of his property. His most valuable asset was his Home. He also identified his accounts with the CIBC as well as jewelry and household items. Perfection is not required identifying one’s assets. However, from a value perspective, he identified almost all his assets.

[107] I find that Augustus understood the extent of what he was giving under his Will. Roxanne stated that Augustus, under his first Will, had treated all his children equally. There is no other evidence to support this submission. On examination, Roxanne admitted that she had never read the first Will which is now lost. In fact, the Earle’s evidence suggests that Roxanne was also excluded as a beneficiary in that Will. Further, there is no evidence that Augustus and Rotha treated their children equally during their lifetime. Roxanne was the only child to receive a sum of money to help her with the purchase of her first home. Neither Earle nor Denise received money to support the purchase of their first home. Augustus put a great deal of thought towards the extent of the bequest that he would make under his Will to each of his children and grandchildren. Rather than divide his estate into equal shares, he chose to exclude two children and to divide his estate in varying percentages to the remaining children and to the children of his deceased son, Frederick. At his first interview with Ms. Ehinlaiye, Augustus gave rational and clear reasons for excluding Roxanne and William. As noted, he also discussed and considered varying the percentages that were identified in his Will Intake Form. Ultimately, he decided not to reduce the percentage that would be received by Frederick’s children, but he did decide to reduce the percentage that would be received by Denise and increase the percentage that would be received by Steve.

[108] I find that Augustus remembered the persons that he might be expected to benefit under his Will as he identified his children from his marriage with Rotha and child from a previous relationship. Augustus also remembered his grandchildren and in particular his desire to make a bequest in favour of the children of his deceased son, Frederick. He also provide cogent explanations as to why his children Roxanne and William were to be excluded.

[109] While Augustus had been diagnosed with dementia and mild cognitive impairment, I find that he had a sound disposing mind at the time he provided instructions for his Will and made his Will.

[110] I also note that a few days before he signed the Will, the police met with Augustus and the police officer’s notes indicate that Augustus “… was rational and appeared to be in control of his faculties”. Roxanne’s reliance on the letter from his pharmacist dated November 18, 2018, is misplaced. Although he states that Augustus was incapable of managing his 14 prescription medications it was not because of dementia or cognitive impairment but rather as a result of the medication regime being “complex”.

Undue Influence

[111] An allegation that a testator made a Will under undue influence requires “… proof that the testator's assent to the Will was obtained by influence such that instead of representing what the testator wanted, the Will is a product of coercion”: Vout, para. 21. The person alleging undue influence bears the onus of proving it: Vout, para. 28.

[112] Pressure is not undue influence unless it amounts to coercion. In Hall v. Hall (1868), L.R. 1 P. & D. 481, at page 482x, Sir J.P. Wilde, explained the difference between permissible and impermissible pressure as follows:

To make a good Will a man must be a free agent. But all influences are not unlawful. Persuasion, appeals to the affections or ties of kindred, to a sentient of gratitude of past services, or pity for future destitution, or the like, - these are all legitimate, and may be fairly pressed on a testator. On the other hand, pressure of whatever character, whether acting on the fears or the hopes, if so exerted as to overpower the volition without convincing the judgment, is a species of restraint under which no valid Will can be made. Importunity or threats, such as the testator has not the courage to resist, moral command asserted and yielded to for the sake of peace and quiet, or of escaping from distress of mind or social discomfort, these, if carried to a degree in which the free play of the testator's judgment, discretion or wishes, is overborne, will constitute undue influence, though no force is either used or threatened. In a word, a testator may be led but not driven; and his Will must be the offspring of his own volition, and not the record of someone else's. [Emphasis added]

[113] In Banton v. Banton, 1998 CanLII 14926 (ON SC), [1998] O.J. No. 3528, Cullity J., stated at para. 59:

A testamentary disposition will not be set aside on the ground of undue influence unless it is established on the balance of probabilities that the influence imposed by some other person on the deceased was so great and overpowering that the document reflects the Will of the former and not that of the deceased. In such a case, it does not represent the testamentary wishes of the testator and is no more effective than if he or she simply delegated his Will-making power to the other person. [Emphasis added]

[114] Undue influence is inferred from the facts of a case. In Roe v. Roe, 2024 ONCA 179, the Ontario Court of Appeal stated, at para. 18:

There is no set list of considerations that must be considered in all cases when considering an allegation of undue influence. Instead, the analysis of the issue is case specific and should examine the circumstances to understand the nature of the relationship between the alleged influencer and the deceased.

[115] Relevant considerations in respect of whether a testator has been unduly influenced in making their Will may include:

(a) “… the testator's isolation, the failure to explain why certain family members were not named as beneficiaries, the existence of inter vivos gifts, the circumstances surrounding the creation and execution of the impugned Will, and statements made by the deceased that he feared the respondent.”: Roe, para. 17.

(b) “Indications of the potential for undue influence include where the testator is dependent on the beneficiary for emotional and physical needs, where the testator is socially isolated, where the testator has experienced recent family conflict, where the testator has experienced recent bereavement, where the testator has made a new Will not consistent with prior Wills, and where the testator has made testamentary changes simultaneously with changes to other legal documents such as powers of attorney.: Gironda v. Gironda, 2013 ONSC 4133, at para. 77, per Penny J.

[116] Roxanne submits that the Will was procured by undue influence for the following reasons:

(a) Denise, Earle and Steve sought to unduly influence Augustus by engaging in conversations with him to the exclusion of Roxanne which resulted in them receiving 90% of the total value of his estate;

(b) Denise, Earle and Steve alienated Roxanne from assisting with the care of Augustus during the final months of his life.

(c) Augustus was extremely dependent on Denise for both his physical and emotional needs. He trusted Denise to assist with legal, financial and medical affairs and advice.

(d) At the time that the Will was prepared, Augustus suffered from depression after Rotha passed away, which likely impacted his mental and testamentary capacity

(e) Augustus consulted with Denise regarding any decisions that needed to be made and therefore she had a degree of influence and/or control in his life.

(f) The Will is not consistent with any of Augustus’s prior Wills.

(g) Augustus wanted to treat all of his children equally as shown by the fact that he and Rotha were co-signors for the purchase of their first properties.

[117] Augustus did rely on Denise’s assistance for management of his personal care and financial affairs. Denise arranged for Augustus to meet Ms. Ehinlaiye in order to prepare a Will.

[118] I do not accept the submission that Denise, Earle and Steve alienated Roxanne from Augustus. Roxanne’s assertion of alienation is inconsistent with her evidence that she spoke to Augustus every day by telephone after Rotha died. Roxanne was not prevented by Denise or any other sibling from visiting Augustus at his home. Further, the allegation of elder abuse was dismissed by the police following their meeting with Augustus on January 10, 2019. In any event, it appears from the evidence that Augustus’s view of Roxanne, according to the statements that he made in January 2019 to Ms. Ehinlaiye, resulted from his reaction to Roxanne’s behaviour over the years.

[119] The assertion that the Will was inconsistent with any of his prior Wills is not established on the evidence. There is only one other Will that was known. Neither Roxanne nor Denise have read it or know its contents. It appears that the only evidence on this point, from Earle, suggests that Roxanne’s exclusion was consistent with the first (and now lost) Will.

[120] The evidence falls far short of establishing that Denise or any other sibling coerced or even pressured Augustus to prepare a Will that excluded Roxanne as a beneficiary. To the contrary, the explanation given Augustus to Ms. Ehinlaiye for excluding Roxanne indicates that that he had good reason for making that choice and that he was “emphatic” about doing so.

DECISION

[121] I find that Augustus knew and approved of the Will and that he had testamentary capacity at the relevant times. I also dismiss the submission that the Will was the product of undue influence. Accordingly, I find that the Will is valid. This application is dismissed.

[122] Denise shall deliver her costs submissions within ten days. Roxanne shall deliver her responding costs submissions within twenty days. Denise may deliver reply submissions within thirty days. Costs submissions shall be no more than three pages each exclusive of any offers to settle and a bill of costs.

Mr. Justice M.D. Faieta

Date: November 14, 2024