Reville v. Weeks, 2024 ONSC 656

Court File and Parties

Court File No.: CV-22-85-0000 Date: 2024 01 29 Ontario Superior Court of Justice

Between: MILLIE REVILLE Applicant A. Bloom and J. Karjanmaa, for the Applicant

- and -

VANIA WEEKS in her capacity as Estate Trustee of the Estate of Mark Weeks, et al. Respondent G. Charles and S. Morison, for the Respondent

Heard: August 17, 2023 in person and January 15, 2024 via Zoom

Ruling on Motion

1The Applicant, Millie Reville, claims she is the common law spouse of Mark Weeks, who died on December 14, 2021. Ms. Reville also claims that she is the Estate Trustee and primary beneficiary of Mr. Weeks’ estate according to a Will that he signed on April 21, 2019. Ms. Reville takes the position that the April 21, 2019 will signed by Mark Weeks is valid, and is the will that should govern all issues related to the Estate of Mark Weeks.

2The Respondent, Vania Weeks, is the separated spouse of Mr. Weeks, and is the Estate Trustee and primary beneficiary of Mr. Weeks’ estate according to a Will that he signed on December 30, 2008 (“the First Will”). Ms. Weeks takes the position that the April 21, 2019 Will (“the Second Will”) signed by Mark Weeks is invalid, and that the original will signed by Mark Weeks on December 30, 2008 remains the will that governs the Estate.

3The issue before me is to determine which Will was in force and effect at the time of Mr. Weeks’ death.

4Ms. Reville brings this Application requesting numerous orders that depend upon a finding that the Second Will dated April 21, 2019 is the proper Will to govern the Estate of Mark Weeks.

5The parties have agreed that this matter proceed way of Application on the basis of a paper record, due to the relatively modest sign of the Estate.

6The parties agree that there are two ways in which the Second Will can be deemed invalid:

1. If Ms. Reville fails to establish that Mark Weeks signed the Second Will; or
2. If Ms. Weeks establishes that undue influence was exerted on Mr. Weeks at the time that he signed the Second Will.

7To determine the issues before me, I first have to satisfy myself that it is appropriate for me to determine this matter by way of a written record. I have reviewed all the evidence, including reports from the expert document examiners, and the transcripts of cross examinations.

8I released an Endorsement on December 5, 2023, requiring the two individuals who witnessed the signing of the Second Will to provide viva voce evidence regarding the circumstances of the signing of the Second Will. One of the witnesses, Ms. Sande Jurik, was also present when the Second Will was discovered. Both witnesses testified on January 15, 2024. Neither had previously been cross examined.

9For the reasons that follow, I find that Ms. Reville has established that Mr. Weeks signed the Second Will, and that it is in full force and effect. I further find that Ms. Weeks was in breach of the May 6, 2022 order of Lemon J. when she used Estate funds to pay the legal invoice from McElderry & Morris. However, it is appropriate that the Estate pay for the legal fees legitimately incurred in the administration of the Estate. I order that Ms. Weeks repay $1,000 plus HST = $1,130 to the Estate for legal services provided that were not connected to the administration of the Estate.

10The Second Will indicates that Ms. Reville is the Estate Trustee and sole beneficiary under the Will. I order that all items removed by Ms. Weeks from the home of Mark Weeks following his death be returned to Ms. Reville.

Background

11The First Will signed by Mark Weeks on December 30, 2008 was prepared by lawyer Sergio Manera. There is no dispute between the parties regarding the legitimacy of the First Will. The First Will provides that Ms. Weeks, who was the wife of Mark Weeks at the time that the Will was signed, is the Estate Trustee for the Estate. The First Will also states that Ms. Weeks is to receive all residue of the Estate once all debts and expenses of the Estate are paid.

12Mr. and Ms. Weeks separated in 2017 but were never legally divorced.

13Although the length and nature of the relationship between Ms. Reville and Mr. Weeks is a matter of dispute between the parties, Ms. Weeks acknowledges that at the time of Mr. Weeks’ death, he was living with Ms. Reville at Unit 315, 1020 Paisley Road, Guelph, Ontario. Ms. Reville states that she and the deceased were common law partners for five years prior to his death.

14On or about December 7, 2021, Ms. Reville entered the hospital with serious health concerns, and remained there until January 17, 2022.

15Mr. Weeks died on December 14, 2021.

16Following the death of Mr. Weeks, and while Ms. Reville was still hospitalized, Ms. Weeks and her son entered the property that Mr. Weeks shared with Ms. Reville under the authority of the First Will. Ms. Weeks removed some items from the property. Ms. Weeks states that based on the First Will, Mr. Weeks’ possessions belonged to her, and she was only taking what was rightfully hers. The parties have not agreed upon which of the items that were removed by Ms. Weeks belonged exclusively to Ms. Reville, and which items belonged to Mr. Weeks.

17On January 24, 2022, Ms. Weeks made an Application for a Certificate of Appointment of Estate Trustee in the Estate of Mark Weeks

18On February 1, 2022, Ms. Weeks obtained a Certificate of Appointment of Estate Trustee, pursuant to the First Will.

19Ms. Reville states in her affidavit that on February 18, 2022, her friend, Sande Jurik, found the Second Will located in one of Mr. Weeks’ Alcoholics Anonymous books while helping Ms. Reville clean the apartment.

20On March 2, 2022, Sande Jurik signed an Affidavit of Execution indicating that she witnessed Mark Weeks signing the Second Will.

21On March 7, 2022, Petula Sprague signed an Affidavit of Execution indicating that she witnessed Mark Weeks signing the Second Will. Petula Sprague is the sister of Ms. Reville.

22The Second Will appoints Ms. Reville as Estate Trustee, and indicates that Ms. Reville will receive the residue of Mr. Weeks’ estate once all expenses are paid, and once provisions are made for a support dog named Max.

23On May 6, 2022, Lemon J. made an Order on consent that Ms. Weeks return the Certificate of Appointment of Estate Trustee to the Court, and that none of the Estate funds were to be dissipated pending resolution of the issues in dispute between the parties.

24On August 29, 2022, Ms. Weeks authorized Mr. Manera, the lawyer she hired to handle the estate issues related to Mark Weeks, to pay himself $8,704.22 from the money being held in trust for the Estate. The parties have agreed that from this amount, approximately $1,000 plus HST is attributed to advice provided by Mr. Manera to Ms. Weeks regarding this litigation.

Issues

25The issues are:

a) Can this Application proceed on the basis of a paper record? b) Was the Second Will dated April 21, 2019 signed by Mark Weeks? c) If so, was there undue influence exerted upon Mark Weeks to compel him to sign the Second Will? d) Should the Estate pay the legal invoice from McElderry & Morris? and e) Is there property that ought to be returned to Millie Reville?

Issue #1 - Can this Application proceed by way of a written record?

26Having heard the oral testimony of the two individuals who claim to have witnessed the signing of the Second Will, I find that this is an appropriate case to resolve the balance of these proceedings in a summary fashion, and that it is in the interests of justice to do so. All the evidence from the parties is before me, including affidavits and transcripts of cross examinations. Expert reports from both sides are also before me. The Respondent’s expert, Dr. Singla, has also been cross examined. I have read the transcripts of all the cross examinations.

27Although there are some background facts upon which the parties do not agree, these disputes are not central to the issue which I need to decide, which is whether there is a valid and legitimate signature of Mark Weeks on the Second Will.

28I am satisfied that the evidentiary record before me, combined with the oral testimony of Sande Jurik and Petula Sprague, is sufficient to allow me to make findings of fact and apply the relevant law.

Issue #2 - Was the Second Will dated April 21, 2019 signed by Mark Weeks?

Position of the Applicant, Ms. Reville

29Ms. Reville did not personally witness the signing of the Second Will. However, she provides Affidavits of Execution signed by the two people who witnessed the signing of the Second Will, Sande Jurik and Petula Sprague. She submits that these affidavits establish that the Second Will was properly executed, and that she has discharged her onus under the Succession Law Reform Act to establish that it is a valid will.

30Ms. Reville also relies upon the oral evidence provided by Sande Jurik and Petula Sprague that they witnessed Mark Weeks sign the Second Will. They also testified that they each witnessed the other signing the Second Will as witnesses. Ms. Jurik also provided evidence that she found the Second Will in a book in a gym bag, along with some clothing, located in a closet in the apartment Ms. Reville shared with Mr. Weeks.

31Ms. Reville submits that Ms. Weeks has introduced no evidence of suspicious circumstances to negate knowledge and approval or the testamentary capacity of Mr. Weeks regarding the Second Will. Ms. Weeks testified that she had no concerns with Mr. Weeks’ capacity. Ms. Reville also submits that there is no evidence that Mr. Weeks was intoxicated when he executed the Second Will.

32Ms. Reville also provides some limited affidavit evidence of the nature of her claimed common law relationship with Mr. Weeks:

a) She states that she and Mr. Weeks were engaged, and provides a copy of a Facebook post from May of 2019 in which she is displaying a diamond ring on the left finger of her left hand, with the caption “What a wonderful day!!!”; b) She states that she signed an affidavit that she was a common lawspouse of Mr. Weeks in order for her to transfer a vehicle to him; c) She indicates that she received a CPP survivor’s benefit after Mr. Weeks’ death; and d) She indicates that neighbours saw her and Mr. Weeks spending time together as a couple.

33Ms. Reville also indicates that she had a service dog who was permitted by the landlord to live in the apartment with her and Mr. Weeks notwithstanding the no pets policy in the building.

34Under cross examination, Ms. Reville indicated that she had forgotten that Mark Weeks had signed the Second Will, until it was discovered by her friend Sande Zurik in an Alcoholics Anonymous book that she found while assisting Ms. Reville with cleaning her home. Ms. Reville also testified that she hadn’t given much thought to the fact that Mark Weeks was changing his Will back in 2019, and that is why she had forgotten about it when he died about two and a half years later.

35Ms. Reville also relies upon the report of forensic document examiner, Graziella Pettinati, whose findings are that there is strong support for the hypothesis that the 2019 Second Will was signed by Mark Weeks.

36Ms. Reville states that Ms. Weeks’ claim that she and Mark Weeks signed mirror wills in 2008 ought not to be considered by me pursuant to section 13 of the Ontario Evidence Act. She further states that this issue was not pleaded, and is not a triable issue before me pursuant to the September 19, 2022 Order of Mossip J.

Position of the Respondent, Ms. Weeks

37Ms. Weeks provides affidavit evidence that she and Mr. Weeks both signed mirror wills in 2008, which she claims made them each the beneficiary of the other’s estate. The wills also allegedly allowed for their Estates to pass to their two children if either of them predeceased the other. Ms. Weeks also provides affidavit evidence that she and Mr. Weeks had an oral agreement that they would not alter their 2008 wills.

38Ms. Weeks provides affidavit evidence of her ongoing friendly relationship with Mr. Weeks after their separation, including jointly participating in weekly poker nights at Ms. Weeks’ home, attending family dinners, holiday celebrations, and assisting Ms. Weeks with renovations at her home. She further states that sometimes Mr. Weeks stayed overnight at her home following social gatherings, and that on several occasions he stayed at her home to look after her dog when she was travelling. Ms. Weeks also states in her affidavit that she and Mr. Weeks held joint investments, and joint debts, and that she was the named beneficiary of his RRSP.

39Ms. Weeks acknowledges that Mr. Weeks was in a relationship with Ms. Reville at the time of his death, but states in her affidavit that she believes the relationship was platonic by that time.

40Ms. Weeks states in her affidavit that she had no knowledge of the existence of a Second Will for Mr. Weeks at the time of Mr. Weeks’ death. Ms. Weeks challenges the legitimacy of the Second Will for the following reasons:

a. It provides for the revocation of former Wills, which is contrary to the oral agreement between Mr. Weeks and Ms. Weeks; b. It describes Ms. Reville as a “common law wife”. Ms. Weeks challenges this description of Ms. Reville, as she claims that the parties had an inconsistent relationship marked by periods of separation; c. The 2019 Will references "my Mother, Anne Weeks" as an alternate Estate Trustee, but the correct spelling of her name is “Ann Jane Weeks”. Ms. Weeks states that Mr. Weeks would not misspell his own mother's name, and further, that the Will does not specify her address; d. Ms. Weeks also notes that Ann Jane Weeks was suffering from memory loss issues in 2019, and that she does not believe that Mr. Weeks would have made such a choice for his alternate Estate Trustee, given his mother’s cognitive difficulties, particularly when there were other options for alternate Estate Trustees, such as his two adult children; e. The 2019 Will refers to a fund to provide for a service dog named Max, but Ms. Weeks states that Mr. Weeks never had a service dog, and that pets were not allowed where he was living at the time of his passing; f. Mr. Weeks’ children, Steven Henry Weeks and Katie-Marie Weeks are listed in the 2019 Will as alternate beneficiaries, but unlike the reference to Ms. Reville, the reference to the children does not contain any middle names or addresses; g. The 2019 Will provides for payments to minors at the age of majority, but Mr. Weeks’ children were no longer minors by 2019; h. She questions why Mr. Weeks didn’t return to the lawyer who had prepared the First Will in 2008, and who had acted for Mr. Weeks after the date the Second Will was signed regarding the sale of his condominium; i. She questions why Ms. Reville’s friend and sister were witnesses to the Second Will, when they did not live nearby, and other friends who lived locally were available to witness the Will.

41Ms. Weeks relies upon the opinion of forensic document examiner, Dr. Singla, that it is unlikely that Mr. Weeks signed the Second Will.

Oral Testimony of Sande Jurik

Signing the Will

42Ms. Jurik identified her signature and initials on the Second Will. She testified that she was spontaneously asked by Mark Weeks to witness his signature on his will one day when she dropped by his home to visit with her friend, Ms. Reville. She states that Ms. Reville was not home when she stopped by, but another woman whom she did not know was there with Mr. Weeks.

43Ms. Jurik also identified her handwriting with respect to the address that appears below her signature on the Second Will. She was unable to identify the handwriting of the person who wrote the date on the signature page of the Second Will but was clear that it was not her who had written the date.

44Ms. Jurik was unable to recall which calendar day she witnessed Mr. Weeks sign his will but testified that she went to his home after lunch. She testified that Mr. Weeks signed the will, and then the other woman signed as a witness. Ms. Jurik testified that she was the last one to sign the Will as a witness.

45Ms. Jurik also testified that whenever Mr. Weeks signed his initials on the Will, that she and the other woman also signed their initials on the will. She indicated that she was only at Mr. Weeks’ home a brief time on the day she witnessed his signature on the Will.

46Ms. Jurik described the layout of the apartment, including walking down a hallway upon entering the apartment, with the kitchen at the end of the hallway, and the living room beside the kitchen. Ms. Jurik testified that the will was signed and witnessed in the living room of the home.

47Ms. Jurik described the apartment where Ms. Reville and Mr. Weeks lived as being located in a building with more than ten apartments and a large underground parking area. She stated that the apartment was on the second or third floor.

Finding the Will

48Ms. Jurik testified that the day after Ms. Reville was released from the hospital, she went to her apartment to help her, and assist her with cleaning. She stayed for about a week. She testified that closer to the end of her stay, she removed a gym bag from the closet of the master bedroom, and inside it she found clothing, and a book. She testified that to her great surprise, inside the book she discovered the handwritten will from Mr. Weeks that she had previously witnessed.

Oral Testimony of Petula Sprague

49Ms. Sprague testified that she is the sister of Ms. Reville. She stated that the day the Will was signed she had been staying with her sister, and that earlier in the day Mr. Weeks had asked her to witness his signature. She was not informed that she would be witnessing his signature on his Will.

50Ms. Sprague testified that she had not met Ms. Jurik before that day, and has not been in contact with her since that day. Ms. Sprague also stated that Mr. Weeks, herself and Ms. Jurik were the only people in the apartment when the Will was signed and witnessed.

51Ms. Sprague identified her signature and initials on the Second Will. She also confirmed that the address below her signature on the signing page of the Will was written in her handwriting. She indicated that Mr. Weeks signed the Will, then Ms. Jurik signed as witness, and that Ms. Sprague was the last witness to sign the will. Ms. Sprague testified that the Will was signed in the afternoon, and it did not take long for the will to be signed and witnessed.

52Ms. Sprague was also unable to identify the handwriting of the person who wrote the date on the signature page of the Second Will, but was clear that it was not her who had written the date.

53Ms. Sprague testified that she was already in the apartment with Mr. Weeks when Ms. Jurik arrived. Ms. Sprague indicated that the Will was signed and witnessed in the living room beside the kitchen. Ms. Sprague did not describe a hallway leading to the kitchen area, but instead stated that the kitchen was apparent when first entering the apartment. Ms. Sprague also testified that the apartment was located upstairs in a two-apartment house.

54Ms. Sprague testified that she did not discuss the signing of Mr. Weeks’ Will with her sister, Ms. Reville.

Expert Report – Ms. Pettinati

Ms. Reville also provides a report written by a forensic document examiner, Graziella Pettinati, whose findings are that there is strong support for the hypothesis that the 2019 Second Will was signed by Mark Weeks. Ms. Pettinati’s Curriculum Vitae indicates that she has a Bachelor’s Degree in Molecular Biology, a Diploma in Administration - MBA, and thirty credits for Master Studies teaching cursive writing. She has also testified regarding handwriting analysis more than fifty-five times. Ms. Weeks does not challenge Ms. Pettinati’s qualifications as an expert document examiner.

The report from Ms. Pettinati compares the signature on the Second Will with what she describes as fourteen “known” samples of Mr. Weeks’ signature from the years 2017-2021, and three additional known samples of Mr. Weeks’ signature from 2013.

55In comparing the samples of Mr. Weeks’ signature to the signature on the Second Will, Ms. Pettinati indicates that there are many similarities in the signatures, including the general aspect, slant, quality of the stroke, movement, continuity, alignment, beginning and ending strokes, and proportions. Ms. Pettinati found that there were no significant dissimilarities in the signatures. Ms. Pettinati concludes that the findings provide strong support for the hypothesis that the 2019 Will was signed by Mark Weeks.

56Ms. Pettinati also comments upon a report from forensic document examiner, Dr. Singla, in which Dr. Singla concludes that it is unlikely that Mark Weeks signed the Second Will. In coming to this conclusion, Dr. Singla compared the signature on the Second Will with known samples of Mr. Weeks’ signature (including legal documents) and identified several differences.

57Ms. Pettinati compared the signature on the 2019 Will to a different set of sample signatures, and indicates that she can find all the alleged differences that Dr. Singla identified in the signature on the Second Will in some of the known comparison signatures that she considered.

58Ms. Reville also submits that Dr. Singla presents as a partisan advocate for Ms. Weeks as opposed to an independent expert as required under Rule 4.1.01 of the Rules of Civil Procedure.

59Ms. Reville further submits that Dr. Singla’s opinion should be rejected as:

a) He failed to consider the potential effects of Mr. Weeks’ alcohol use to explain variances in his signatures by not reading the pleadings or interviewing any of the affiants; b) He examined fewer signature samples than Ms. Pettinati; c) The majority of signature samples that he examined were executed too long before the 2019 signature on the Second Will to be considered contemporaneous for comparison purposes; and d) Ms. Pettinati was never cross examined so her conclusions remain unchallenged.

60Although she did not agree with Dr. Singla’s conclusion, Ms. Pettinati was not critical of his methodology, or the reasons for which he came to his conclusion.

Expert Report – Dr. Singla

61Ms. Weeks provides the opinion of forensic document examiner, Dr. Singla, that the person who signed the Second Will is not the same person who signed the known signature samples from Mark Weeks.

62The Curriculum Vitae of Dr. Singla indicates that he has a Masters Degree and a Ph.D Degree in Forensic Science, a Diploma in Document Examination, and is a certified Fraud Examiner. He states that he has been qualified and testified as an Expert Witness in Forensic Document Examination in more than five hundred cases. Ms. Reville did not challenge Dr. Singla’s qualifications as an expert document examiner.

63Dr. Singla examined eight known signatures from Mr. Weeks, with three original documents containing signatures from 2013, and two additional original documents with signatures from 2018 and one from 2020. Dr. Singla also examined two photocopies of signatures from 2017 and 2021, and determined that the quality of the reproduction was sufficient to enable him to consider those signatures in the sample of known signatures. Dr. Singla did not examine any signatures from 2019, the year the Second Will was signed.

64The majority of these documents reviewed by Dr. Singla were signed in a legal office, which he suggests increases the reliability that they are authentic examples of the signature of Mark Weeks.

65Dr. Singla compared the eight sample signatures to each other. He concludes that the known sample signatures that were created between 2013 to 2021 were consistent with each other, and are therefore reliable sources to which he can compare the 2019 signature from the Second Will.

66Dr. Singla concludes that there are “marked differences in the writing characteristics” between the known samples of Mr. Weeks’ signature, and the signature on the Second Will, including a different style of writing letters, a difference in the writing slant of the letters, a faster writing speed in the known signatures, more angular strokes, a difference in the sizes and relative positioning of the letters, and lighter writing pressure in the strokes of the known sample. Based upon these observations, Dr. Singla concludes that it is highly probable that the signature on the Second Will was not written by Mark Weeks.

67In a second report, Dr. Singla comments upon the methodology used by Ms. Pettinati, and criticizes her failure to compare the known samples of Mark Weeks’ signatures that she relied upon to each other, to ensure that they are as a group consistent with each other. Dr. Singla also notes that Ms. Pettinati did not compare the signature on the Second Will with the known signatures of Mark Weeks used by Dr. Singla, even though she did not challenge the legitimacy of the known signatures of Mark Weeks considered by Dr. Singla.

68Dr. Singla indicates that Ms. Pettinati did not compare the “known signatures” of Mark Weeks that she relied upon for internal consistency. He goes on to opine that it is therefore uncertain whether these signatures are in fact undisputed known signatures of Mark Weeks, and that these signatures are potentially unreliable for comparison purposes.

69In his second report, Dr. Singla also compares the initials on the Second Will to the First Will, and to initials on an agreement of purchase and sale dated February 2018, which is a known sample of Mark Weeks’ initials. He concludes that the writer of the initials on the Second Will is not the writer of the initials on the First Will, or the agreement of purchase and sale. Specifically, he found that the initials on the Second Will show slow writing speed, hesitation in the act of writing, and an absence of natural writing flow.

70Dr. Singla also concludes that the initials on the Second Will show marked differences in writing characteristics, and that there are, in his words, “glaring differences” visible in a side-by-side comparison of the known initials of Mark Weeks, and the initials on the Second Will.

71Similar to his opinion regarding the differences in the signatures, Dr. Singla concludes that the initials on the Second Will differ from the known sample initials as follows:

a) There is a different pictorial appearance with different writing styles of letters; b) There is a marked difference in the writing slant of individual letters; c) The known initials of Mark Weeks show a fast-writing speed and a more graduated shading in the strokes, but the initials on the Second Will show a slow speed; and d) The strokes show hesitations in the act of writing and changing impulses.

72Dr. Singla states that the marked differences in the initials on the Second Will indicate that the person writing the initials did not attempt to copy the known initials of Mark Weeks, and instead just wrote down initials.

73Dr. Singla concludes that the initials on the Second Will were not written by the writer of the unchallenged First Will. This conclusion was not challenged during the cross examination of Dr. Singla. In addition, there was no reply report from Ms. Pettinati responding to the conclusions reached by Dr. Singla with respect to the initials on the Second Will.

74Under cross examination, Dr. Singla indicated that expert document examiners can determine whether a person was under the effect of alcohol or suffering from drug use, illness ailment or sickness by examining the signatures. He further testified that in the case of Mark Weeks, he did not find anything in the known signatures suggesting the effects of illness, age, or intoxication.

75Dr. Singla elaborated that if Mark Weeks had been suffering from alcohol abuse during the time frame of the known signatures that were all consistent with each other, it would not have impacted on his analysis of the signature because muscular coordination becomes stabilized, and signatures become consistent over time. Dr. Singla also indicated that if a person was intoxicated at the time of signing a document, the effects of intoxication would be apparent in the signature. Dr. Singla maintained that all expert document examiners are able to determine if alcohol use has affected a signature, and it is not something that needs to be specifically identified on a curriculum vitae as an area of expertise.

76Dr. Singla was challenged during cross examination that the known signatures of Mark Weeks considered by him were created years before the 2019 signature on the Second Will. In response, Dr. Singla stated that as the signature samples were consistent with each other, it did not matter that some of them were generated several years before the 2019 signature in question. He stated that they were still close enough in time to the 2019 signature to be considered “contemporaneous”.

Legal Principles

79Section 4(2) of the Succession Law Reform Act sets out the requirements to establish that a Will has been properly executed:

a) at its end it 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 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 sign the will in the presence of the testator.

80The person propounding the Will has the legal burden of proof with respect to due execution (Neuberger v. York, 2016 ONCA 191, 129 O.R. (3d) 721, at para. 77).

81The party alleging undue influence has the onus of establishing on a balance of probabilities that the testator was subjected to overpowering coercion (Seguin v. Pearson, 2018 ONCA 355, 141 O.R. (3d) 684, at para. 11).

82Section 13 of the Ontario Evidence Act states:

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.

Analysis

Reliability of the Testimony of the Witnesses to the Signing of the Second Will

83It is Ms. Reville’s onus to establish that the Second Will was executed by Mark Weeks. The decision before me therefore turns primarily on the evidence of the two individuals who claim to have witnessed him sign the Second Will: Sande Jurik and Petula Sprague.

84As their evidence goes to the centre of the dispute between the parties, I ordered that they each provide oral testimony as to the circumstances of the signing of the Second Will in 2019. Although the technical requirements of the Succession Law Reform Act were met when both witnesses signed Affidavits of Execution, it is appropriate for me to consider the credibility and reliability of their evidence.

85The evidence provided by both witnesses was not polished. Neither witness appeared to be coached. Both witnesses were straight forward in their presentation and did not waiver under cross examination that they witnessed Mark Weeks sign his Will, and that they then signed the Will confirming they had witnessed his signature.

86I acknowledge there were some variances in the evidence provided by these two witnesses, but there are also a number of important evidentiary points where the witnesses gave consistent evidence.

87The most significant discrepancies in the evidence of the two witnesses were:

a) The order in which the witnesses signed the Will; b) The layout of the apartment where the Will was signed; and c) Whether the apartment was located in a home or an apartment complex.

88The evidence from the witnesses was consistent regarding the following:

a) Mr. Weeks was casual in his approach to signing the Will, and did not give either witness much warning in advance of the request to witness his signature; b) Ms. Reville was not home at the time the Will was signed and witnessed; c) The Will was witnessed in the living room area of the apartment; d) The Will was signed and witnessed in the afternoon; e) Ms. Sprague was already in the apartment with Mr. Weeks when Ms. Jurik arrived; f) They agree that they were both there to witness Mr. Weeks signing the Will; g) They did not know each other before they witnessed Mr. Weeks signing the Will, and have not remained in contact; h) They provide no evidence of Ms. Reville participating in the creation of the Second Will; and i) The time period involved in witnessing the signing of the Second Will was brief.

89In addition, Ms. Jurik’s oral testimony regarding the circumstances in which she found the Second Will is consistent with the affidavit evidence given by Ms. Reville, although it is acknowledged that her recollection is that the Second Will was discovered in January 2022, several weeks earlier than the February 18, 2022 date provided by Ms. Reville in her affidavit. Ms. Jurik was not cross examined about this discrepancy in the evidence.

90Ms. Sprague, who testified after Ms. Jurik, was not cross examined about the aspects of her evidence at odds with the evidence from Ms. Jurik, such as the layout of the apartment, and whether it was located in a house or an apartment complex.

91Ms. Jurik and Ms. Sprague provided their oral testimony over 4 ½ years after they witnessed Mr. Weeks sign the Second Will, and Ms. Jurik provided evidence regarding the discovery of the Second Will two years after the event occurred.

92Either Ms. Jurik or Ms. Sprague is mistaken about some of the details regarding the description of the apartment in which the Second Will was signed. Further, either Ms. Jurik or Ms. Reville is mistaken about the date when the Second Will was discovered.

93In my view, these variances in the evidence are not sufficient to undermine the clear and specific evidence given by both Ms. Jurik and Ms. Sprague that they each witnessed Mark Weeks sign the Second Will. Overall, both witnesses presented credibly, and gave their testimony in a straight forward manner. There are sufficient similarities and consistency in the evidence they each provide to satisfy me that they are not fabricating evidence related to witnessing the Second Will being signed.

Can Ms. Weeks’ Evidence about mirror Wills be considered?

94The only evidence that Ms. Weeks and Mr. Weeks had mirror wills comes from Ms. Weeks herself. Section 13 of the Evidence Act requires that an opposite party may not obtain a verdict unless there is material evidence corroborating the evidence being put forward (see McKenzie v. Hill, 2022 ONSC 4881, at para. 33). No such evidence was produced. Accordingly, I make no finding that Mr. Weeks and Ms. Weeks had mirror wills created in 2008, or that they had an oral agreement not to change their 2008 wills.

The Relationship Between Mark Weeks and Each of the Parties

95As I have already accepted the evidence from Sande Jurik and Petula Sprague that they witnessed Mark Weeks sign the Second Will, I need not comment upon the additional evidence provided by each party to support their mutually exclusive claims that Mr. Weeks intended for each of them to inherit his Estate. However, for the sake of completeness, I provide the following comments.

96The evidence presented by both parties as to their respective relationships with Mark Weeks was not overly helpful to assist me in determining the primary issue in dispute. It is clear that Ms. Reville and Mr. Weeks were involved in a relationship, and that they were living together at the time of his death. It is also clear that Mr. Weeks continued to maintain a friendship with Ms. Weeks after their separation. These factors were neutral factors in terms of my analysis.

Unusual Aspects of the Second Will

97I acknowledge that Ms. Weeks has identified a number of questionable aspects of the Second Will, such as the mis-spelling of the name of Mr. Weeks’ mother. The structure and content of the Second Will is a relevant factor to consider when determining the authenticity of the Second Will. However, I have listened to the testimony of Sande Jurik and Petula Sprague and have accepted their evidence that they witnessed the Second Will being signed. These concerns raised by Ms. Weeks regarding the content of the Second Will are not sufficient to undermine the credibility of Ms. Jurik or Ms. Sprague.

Expert Evidence of the Document Examiners

98As I have determined that the Second Will was properly executed and is valid, it is not necessary for me to make findings with respect to the expert reports in this case. However, for the sake of completeness, I will comment upon the expert reports provided by both parties.

99When considering the evidence of the two document examiners, overall I prefer the evidence of Dr. Singla, who ensured that the sample known signatures of Mark Weeks were consistent with one another, before comparing them to the signature on the Second Will and finding marked differences in the signatures. In contrast, Ms. Pettinati did not compare the various signatures that she indicated were known signatures to ensure that the signatures were consistent as between themselves.

100Having reviewed the transcript of Dr. Singla’s cross examination, I am unable to conclude that he presented as a partisan advocate for Ms. Weeks. He presented his findings in a methodical manner, and Ms. Reville did not challenge his methodology. He determined that there were no limitations in his analysis. This conclusion does not mean that he is biased. It simply means that he concluded that he had reviewed sufficient documentation to form an opinion.

101Whether or not Dr. Singla’s opinion is preferred over the opinion of an assessor who has reviewed a greater sample of known signatures is a matter of weight to be considered by the trier of fact. In this case, I accept Dr. Singla’s opinion that he had reviewed sufficient known signature samples to provide an opinion about the authenticity of the signature on the Second Will.

102I also do not accept Ms. Reville’s submission that Dr. Singla’s lack of knowledge of Mark Weeks’ alcohol abuse undermines the conclusions that he reached. I accept his evidence that the consistency between the known signatures over the years of 2013 to 2021 indicates that alcohol, age or other factors did not affect the consistency of the signature of Mark Weeks. It was appropriate for Dr. Singla to provide his opinion as to the authenticity of the signature on the Second Will, without taking extra steps such as reading the pleadings or interviewing witnesses. It is not for Dr. Singla or any other expert to assess the credibility of the witnesses in this litigation. That function is reserved for the court.

103The fact that Ms. Weeks chose not to cross examine Ms. Pettinati does not mean that Ms. Pettinati’s evidence ought to automatically be accepted by me. Ms. Weeks submits that Ms. Pettinati’s failure to compare the sample known signatures to one another to confirm consistency in the signatures undermines her conclusion that there is a high probability that Mark Weeks signed the Second Will. I agree. Ms. Pettinati’s analysis allows for a significant amount of variability between the sample known signatures that were being compared to the signature on the Second Will. On the other hand, Dr. Singla’s analysis confirmed that the signature on the Second Will had marked differences from the signatures on the known signature samples.

104Although I prefer the analysis of Dr. Singla over the analysis of Ms. Pettinati, the reality is that neither expert can confirm whether Mr. Weeks did or did not sign the Second Will. There are, however, two witnesses who watched Mr. Weeks sign the Second Will, and I have accepted their evidence that they were present when the Second Will was signed.

105I conclude that Ms. Reville has discharged her onus of establishing that the 2019 Second Will was properly executed by Mark Weeks.

Issue #3 – Was there undue influence exerted upon Mark Weeks to compel him to sign the Second Will?

106Ms. Weeks does not provide any direct evidence that Ms. Reville exerted undue influence on Mr. Weeks at the time that he signed the Second Will. In addition, the testimony of Ms. Jurik and Ms. Sprague confirms that Ms. Reville was not home when the Second Will was signed and witnessed. Further, there was nothing in their evidence to suggest that Mr. Weeks was under any duress at the time they witnessed him signing the Second Will. I do not find that undue influence was exerted on Mr. Weeks prior to or at the time that he signed the Second Will.

Issue #4 - Should the Estate pay the legal invoice from the law firm of McElderry & Morris for $8,704.22?

107The parties have agreed that the majority of the invoice submitted by Mr. Manera in the amount of $8,704.22 was for the administration of the Estate. Of this amount, approximately $1,000 plus HST related to advice pertaining to the litigation issues before me.

108Ms. Weeks gave evidence at her cross examination that she had authorized that Mr. Manera pay himself the legal fees owed from the funds in trust for Mark Weeks’ estate. Ms. Weeks also acknowledged the existence of Lemon J.’s Order, but stated that Mr. Manera had done the work, and deserved to be paid.

109Court Orders are made to be followed. It was not appropriate for Ms. Weeks to disburse money from the trust funds of the Estate given the Order from Lemon J. However, the Estate benefited from a significant portion of the work performed by Mr. Manera. Fairness dictates that the Estate should not receive the benefit of work done without paying for it. Under the circumstances, I order that Ms. Weeks reimburse the Estate $1,000 + HST.

Issue #5 - Is there property that ought to be returned to Millie Reville?

110Having found that the Second Will was in full force and effect at the time of Mark Weeks’ death, it matters not if the items taken from the home belonged to Ms. Reville or Mr. Weeks prior to his death. The items in Mark Weeks’ home at the time of his death now belong to Ms. Reville. I therefore Order that Ms. Weeks return the following items to Ms. Reville:

a) Golf clubs; b) Poker chips in a case; c) Amazon Alex

Conclusion

111I accept the oral testimony of Sande Jurik and Petula Sprague that they witnessed Mark Weeks sign the Second Will. Ms. Reville has discharged her onus to establish that the Second Will was duly executed.

112There is no evidence before me that there was undue influence exerted upon Mark Weeks at the time that he signed the Second Will.

113I make the following Orders:

a) The Second Will signed by Mark Weeks on April 21, 2019 is the valid last will and testament of Mark Weeks. b) The Certificate of Appointment of Estate Trustee with a Will shall be issued to Millie Reville in respect of the 2019 Will, subject to the filing of the necessary documentation. c) Ms. Weeks is required to repay $1,130 to the Estate that was previously paid by the Estate to the law firm McElderry & Morris within 30 days of this Order. d) Ms. Weeks is to return the following items to Ms. Reville within 15 days of this Order: i. Golf clubs; ii. Poker chips in a case; and iii. Amazon Alexa. e) Ms. Weeks is to transfer all Estate property to Ms. Reville within 30 days of this Order.

Costs

114If the parties are unable to agree upon costs, Ms. Reville is to prepare submissions no longer than three pages double spaced by February 12, 2024, not including any Bills of Costs or Offers to Settle. Ms. Weeks’ response is also to be limited to three pages double spaced and is due 15 days after receipt of Ms. Reville’s cost submissions. No reply submissions shall be filed unless requested by me. Costs submissions shall be sent to my judicial assistant Aleisha Salim at aleisha.salim@ontario.ca. If I have not received any submissions within the time frames set out above, I make no order as to costs.

Wilkinson J.