COURT FILE NO.: CV-21-00000309-0000 DATE: 2024Dec18

ONTARIO SUPERIOR COURT OF JUSTICE

In the estate of ELIZABETH MARGARET ANDERSON, deceased

BETWEEN:

WENDY ISABEL ANDERSON Applicant – and – ESTATE OF ELIZABETH MARGARET ANDERSON, deceased, DOUGLAS THOMAS ANDERSON, ROBERT WALTER ANDERSON and DIANE CATHERINE WRAY Respondents

Counsel: S. McMahon, for the Applicant L. Rafferty, for the Respondents, Douglas Thomas Anderson and Robert Walter Anderson A. Hummel and T. Lin, for the Respondent, Diane Catherine Wray

Heard: October 30 and November 22, 2024

APPLICATION UNDER the SUCCESSION LAW REFORM ACT, R.S.O. 1990, C. S. 26, SS. 6 and 7 and the RULES OF CIVIL PROCEDURE, R.R.O. 1990, O. REG. 194 AS AM., R. 14.05(3)

TRANMER J.

REASONS FOR DECISION ON SUBSTANTIVE ISSUE The Validity or Not of a Purported Holograph Will

Background

1Elizabeth Anderson (“Betty”) was born March 13, 1935.

2She died on July 16, 1921.

3The parties to this Application are her 4 children surviving her. Sadly, they have chosen to litigate with each other over Betty’s estate, mostly consisting of her modest home.

4The applicant, Betty’s daughter Wendy, lived with her mother in her mother's home in Belleville for over 30 years before Betty died.

5In July 2012, Betty executed a will prepared by her lawyer which equally distributed her estate to her children. This is consistent with her two prior solicitor drafted wills made in March 2010, and November 1979. I observe that the 2012 Will left the contents of the home to Wendy.

6At issue is a document, apparently handwritten, with a date at the top of “Jan 5/16” stating:

“To whom it may concern:

My Family

I leave the house at 84 Gavey Street to Wendy Anderson and all contents.

Betty Anderson”

7Wendy received this document from Betty, but she does not know when. She was not present when it was written. She was surprised to receive it. She did not know her mother would be writing such a document.

8Wendy says the document is in her mother's handwriting.

9Wendy did not disclose the document until after her mother's death.

10Betty’s son Douglas deposed that Wendy delivered an undated Christmas card to his wife in similar form and to the same effect.

11Betty's home is the most significant asset of her estate, and I am told by counsel that its value is $500,000.

Independent Evidence

12Medical and care records from 2010 onward were filed under the Evidence Act. These show ongoing concern for an assessment of Betty's declining cognitive function.

13Betty's pastor deposed that he had known Betty since 2013 when she joined his church. She would have been 78 years of age. He deposed that in 2015, she regularly demonstrated confusion about losing her purse. In 2015 or 2016, she demonstrated that on one occasion she thought it was Sunday. In fact, it was Tuesday. He did not see her after she stopped attending church in 2017.

14An expert report commissioned by the respondents was admitted into evidence following a voir dire. Doctor Herrmann was accepted as an expert as an academic physician specializing in the assessment, management and research of memory disorders in late life, including Alzheimer's disease, dementia associated with cerebrovascular disease and other dementias.

15He had reviewed the application record, home care records and the family doctor records from 2010 onward. He concluded:

Therefore, at the time of the Holograph Will dated Jan 5, 2016, Betty had a moderately severe Mixed Dementia with prominent neuropsychiatric symptoms including anxiety, depression and persecutory ideation towards Diane. In and of itself, the moderately severe cognitive impairment would represent a significant threat to Betty’s testamentary capacity. There are several more specific threats however, that need to be highlighted:

A) While her estate was fairly simple, the fact that her home and contents represented almost the entire value of the estate, bequeathing the home and its contents to Wendy effectively disinherited her other children, which clearly goes against her testamentary wishes expressed in her 2012 Will. Given this relative complication to the estate, the decision to bequeath the home and its contents should theoretically have required a higher level of cognitive function for a determination of capacity, as noted by Shulman et al (Assessment of Testamentary Capacity and Vulnerability to Undue Influence; Am J Psychiatry 164:5, May 2007).

B) The fact there was significant family discord, added another layer of complication to the distribution of the estate, once again necessitating a higher level of cognitive function suggested by Shulman et al 2007.

C) The fact that Betty had developed persecutory ideation towards Diane, raises the concerns that she had a dispositive delusion when she wrote the Holograph Will.

For these reasons, it is my opinion that there was a significant risk that Betty lacked testamentary capacity when she wrote the Holograph Will date Jan 5, 2016.

The Issue

16The issue is whether the applicant has met the onus on her to prove that the January 5, 2016 document is a valid, lawful, enforceable holograph will.

Legal Principles

Requirements of a Holograph Will

17The requirements of a holograph will are set out in s. 6 of the Succession Law Reform Act, R.S.O. 1990, c. S.26:

6 A testator may make a valid will wholly by his or her own handwriting and signature, without formality, and without the presence, attestation or signature of a witness.

18Also relevant to this application is s. 13 of the Evidence Act, R.S.O. 1990, c. E.23:

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.

19In Bennett v. Toronto General Trusts Corp., 1958 CarswellMan 66 (SCC), the court stated:

5 There is no controversy, either in the reasons for judgment in the Courts below, or between the parties, that under the authorities, a holographic paper is not testamentary unless it contains a deliberate or fixed and final expression of intention as to the disposal of property upon death, and that it is incumbent upon the party setting up the paper as testamentary to show, by the contents of the paper itself or by extrinsic evidence, that the paper is of that character and nature: Whyte et al. v. Pollok; Godman v. Godman; Theakston v. Marson.

20In McKenzie v. Hill, 2022 ONSC 4881, Williams, J. pointed out that a testamentary gift occurs when the donor intends to make a gift that is effective only at the donor’s death and is revocable until then - the gift is said to be dependent on death for its vigour and effect (para. 24). The learned justice stated that she attempted to read the document generously and to ascribe plain and ordinary meaning to the words that the deceased had chosen. In that case, the court held that the document was not a lawful holograph will because it read as an agreement to transfer and did not state that the transfer would be effective only upon death. At paragraph 31, the court pointed out, “Ms. Hillman did not use the word “will’’ nor did she say that she wanted “to leave” the condo to Mr. McKenzie, from which one could also make an inference in respect of her intention. Instead, Ms. Hillman made no reference to her death”.

21In R v. Abdi, 116 CCC (3d) 385 (Ont. C.A.), the court held that the trier of fact is entitled to compare disputed handwriting with admitted or proven writing in documents which are properly in evidence in drawing inferences therefrom without the assistance of an expert or lay witness. It held that the comparison does not necessarily require expertise or particular knowledge of the relevant handwriting. The question is the weight to be attached to the evidence and the manner in which the trier of fact is to be cautioned in this respect. The potential danger in making unassisted comparisons exists and the trier of fact should be reminded that it has no expert or other evidence relating to the writings and should exercise care in making the comparison. The trier of fact should consider whether the comparison is of sufficient length and clarity.

The Burdens of Proof in the Case

22These are set out in Vout v. Hay, 1995 CarswellOnt 186 (SCC), paragraphs 26, 27 and 28.

23Firstly, the burden is on the applicant 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 will generally be presumed that the testator knew and approved of the contents and had the necessary testamentary capacity”. (Emphasis added).

24Secondly, the burden is on those attacking the purported will which is satisfied by pointing to “some evidence”, which, if accepted, would tend to negative knowledge and approval or testamentary capacity. These suspicious circumstances may be raised by:

• Circumstances surrounding the preparation of the will;
• Circumstances tending to call into question the capacity of the testator; or
• Circumstances tending to show that the free will of the testator was overborne by acts of coercion or fraud.

Additional suspicious circumstances have been identified in the case law.

• The extent of physical impairment of the testator around the time the will was signed.
• Whether the will in question constituted a significant change from the former will.
• Whether the will in question generally seems to make testamentary sense.
• The factual circumstances surrounding the execution of the will, and
• Whether a beneficiary was instrumental in the preparation of the will.

(Royal Trust Corp. of Canada v. Saunders, 2006 ONSC 1924, para. 78; Botnick v. The Samuel and Bessie Orfus et al, 2011 ONSC 3043, para. 110).

25Thirdly, where such suspicious circumstances are present, the rebuttable presumption is spent and the propounder of the will re-assumes the legal burden of proving knowledge and approval. If the suspicious circumstances relate to a mental capacity, the propounder of the will reassumes the legal burden of establishing testimony capacity. Both of these issues must be proved in accordance with the civil standard proportionate to the gravity of the suspicion.

26The Ontario Court of Appeal addresses the issues in Stekar v. Wilcox, 2017 ONCA 1010 at paragraph 8. The Court also made the distinction that the trial judge in that case did not find that the deceased lacked the requisite testamentary capacity when the purported will was executed but rather held that the appellant had failed to discharge his burden to prove that the deceased possessed the necessary testamentary capacity at the relevant time. (Para. 13).

27In Stekar, the Court stated the test for testamentary capacity,

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

17 As the trial judge noted, at para. 71, the "mere capacity to communicate testamentary wishes is not determinative" of testamentary capacity. Rather, the testator's wishes "must be shown to be the product of a sound and disposing mind": Hall v. Bennett Estate (2003), 64 O.R. (3d) 191 (C.A.), at para. 15. The test to prove testamentary capacity is therefore a high one, which, in the face of suspicious circumstances, falls on the propounder of the will to satisfy.

28The Court went on to say under the heading, “Knowledge and Approval”,

20 We reach a similar conclusion regarding the trial judge's holding that the appellant also failed to satisfy his burden to establish the Deceased had knowledge of and approved the contents of the 2012 Will.

21 Once again, contrary to the appellant's contention, the trial judge did not find, as a fact, that the Deceased lacked knowledge of and failed to approve the contents of the 2012 Will. Rather, he held that the appellant fell short of meeting his clear burden to establish such knowledge and approval.

22 We agree. Indeed, in our opinion, this conclusion was inescapable on the record at trial. Specifically, it was supported by: i) the fact that the testamentary dispositions under the 2012 Will were completely at odds with the Deceased's testamentary intentions as communicated to his treating physician and various friends in the 60 days prior to the execution of the 2012 Will, as well as with the provisions of the 1999 Will; ii) the fact that the 1999 Will was handwritten by the Deceased himself, whereas he could not have prepared the typed 2012 Will; iii) the absence of any evidence at trial regarding the instructions for or the preparation of the 2012 Will; and iv) the absence of any evidence from Joy Vassal, who was present when the 2012 Will was executed and stamped and signed it.

23 The trial judge held that these suspicious circumstances had a serious impact on the critical question whether the appellant had met his burden of proof to establish the Deceased's knowledge and approval of the 2012 Will.

24 Again, we agree. As indicated by the Supreme Court of Canada in MacGregor v. Martin Estate, [1965] S.C.R. 757, at p. 766: "The extent of the proof required is proportionate to the gravity of the suspicion and the degree of suspicion varies with the circumstances of each case."

25 In this case, the cumulative circumstances surrounding the making of the 2012 Will cried out for an explanation and for evidence that the Deceased, in fact, had knowledge of and approved the contents of the 2012 Will. We see no error in the trial judge's conclusion that the appellant failed to meet his burden of proof on this important issue.

29In McKenzie, having found that suspicious circumstances existed, Justice Williams held:

38 For this reason, I find that there were "suspicious circumstances" in this case, relating to Ms. Hillman's capacity. Mr. McKenzie, therefore, bears the burden of satisfying me that Ms. Hillman had capacity to make a will at the time she prepared and signed the October 28, 2014 document.

39 To make a valid will, a testator must have a "sound disposing mind". 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 their property, must understand the extent of what they are giving under the will, must remember the people that the testator might be expected to benefit under the will and must understand the nature of the claims that might be brought by persons excluded from the will. (Hall v. Bennett Estate, 2003, 64 O.R. (3d) 191, at para. 14.)

40 As I noted at the outset of this endorsement, after Mr. McKenzie's counsel appeared before me on June 30, 2022, I requested further evidence in respect of Ms. Hillman's capacity at the time she signed the October 28, 2014 document. In a supplementary affidavit, Ms. Katic described her relationship with Ms. Hillman and said that after Ms. Hillman moved to Ottawa in 2012, Ms. Hillman was able to make decisions, talk about local politics, discuss her career in banking and share memories of her family. Ms. Katic also said that about a month after Mr. McKenzie told her about the October 28, 2014 document, Ms. Katic asked Ms. Hillman if she wanted Ms. Katic to find a lawyer for her in order to review her affairs. Ms. Hillman said that she had everything taken care of, that she was in good hands with Mr. McKenzie and that she did not want to spend money on lawyers. I infer that Ms. Katic was unable to provide any evidence specifically about Ms. Hillman's capacity at the time she prepared and signed the October 28, 2014 document.

41 There was no evidence from Mr. McKenzie about Ms. Hillman's capacity at the time she prepared and signed the October 28, 2014 document.

42 There was no evidence from Audrey Logan, the woman who witnessed Ms. Hillman's signature on the October 28, 2014 document.

43 There was no medical evidence or any evidence from a psychologist, psychiatrist, social worker or capacity assessor.

44 For these reasons, Mr. McKenzie has failed to satisfy me that Ms. Hillman had a sound and disposing mind at the time she signed the October 28, 2014 document.

Factors to Consider in determining Testamentary Capacity

30Justice Leroy set out a non-exhaustive list in Salmon v. Rombough, 2024 ONSC 1186, paragraph 66:

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

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

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

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

The court will consider:

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

Evidence of Lay Witnesses as to Mental Capacity or State of Mind

31In Salmon, Justice Leroy relied on a decision of the Ontario Court of Appeal as follows:

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

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

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

70 The ONCA in Dujardin v. Dujardin, 2018 ONCA 100 at paragraph 33 articulated the value of lay testimony as follows:

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

32He had ruled that the expert report was inadmissible in that case. He held that although the report was relevant, it was unnecessary. He held that the medical records filed under the Evidence Act were properly before the court and that if the medical records had referenced capacity deficits, the respondent would have referenced them.

Retrospective Assessment of Capacity

33The Alberta court in Burby v. Ball, 2017 ABQB 300 issues a caution about such expert assessments:

177 Another concern I had with the reports was their retrospective nature. I struggle in understanding how reliable the reports are when they take place years after the relevant time period and are done without interviewing the actual subject. A textbook for psychologists on assessing older adults with diminished capacity points out that a clinical interview remains "an essential part of any capacity evaluation": American Bar Association/American Psychological Association Assessment of Capacity in Older Adults Project Working Group, Assessment of Older Adults with Diminished Capacity: A Handbook for Psychologists, (2008) at 38. I was not convinced on the trial evidence that there is a settled or reliable methodology for determining retrospective competence. I believe considerable caution is required when deciding whether to accept reports which did not assess their subject at the relevant time.

178 Due to the concerns outlined above, I am not accepting one of the expert reports over the other.

Analysis

Is the document in Betty’s own handwriting and signature?

34Wendy says this is her mother's handwriting and signature. She did not see it written by her mother. There is no evidence that she saw the Christmas card that she gave to Doug's wife written by her mother.

35The respondents deny that the document is Betty's handwriting.

36There is no expert evidence on the point.

37Wendy deposed that “Elizabeth presented me” with the document. There is no evidence of any words spoken, when or the circumstances.

38I am asked by the applicant to compare the writing and signature of the document with the Christmas card and the pacemaker note bearing a date of “Jan 14, 2015” contained in the caregivers’ records entered February 14, 2020, to conclude that the document is Betty’s handwriting.

39The latter record states “slowly progressive dementia since 2010 at least”.

40The writing and signature and form on the 3 documents are similar. The subject document uses the words “I leave”. (McKenzie). Based on this, I am prepared to find that the subject document meets the requirements of s. 6 of the Succession Law Reform Act.

There are Suspicious Circumstances

41I find that there are suspicious circumstances present within the meaning of the authorities.

42The suspicious circumstances include,

• the complete lack of evidence as to the circumstances or motivation for the creation of the subject document.
• the evidence that when Doug asked his mother if she intended to leave the estate to Wendy, she said “no” very strongly.
• the subject document constitutes a significant change with respect to the bequest of the house from the former unchallenged wills.
• that Wendy did not disclose the document until after her mother's death.
• the evidence of Dr. Herrmann that as at January 5, 2016, Betty had a moderately severe mixed dementia with prominent neuropsychiatric symptoms including anxiety, depression and persecutory idea towards Diane, which would represent a significant threat to Betty's testimony testamentary capacity.
• Pastor Paterson’s evidence about the purse and the day of week; and
• Contradictory evidence as to family relationships and caregiving roles taken on by Betty’s children.

Wendy Bears the Onus

43In the face of the suspicious circumstances, Wendy bears the onus of satisfying the court, on the balance of probabilities, that Betty knew and approved the contents of the document.

44Wendy does not know when she received the document. There is no evidence as to the circumstances of its creation or the actual date Betty wrote it other than the date on it.

45There are no witnesses to its creation or as to anything said by Betty about its creation.

46There is no evidence about what Betty or Wendy said to each other when the document was presented, “Why?”, “Thanks Mom”.

47There is no contemporaneous direct evidence of Betty's testamentary capacity on January 5, 2016.

48There is no evidence that the document was read over to or by Betty who appeared to understand it. The medical records and caregiver records clearly show concerns about and treatment for progressing dementia in the years preceding January 2016.

49There is no material corroborative evidence for Wendy's evidence.

50I make no finding about Betty's actual testamentary capacity on January 5, 2016.

51However, for these reasons, I find that Wendy has failed to meet the onus on her that Betty had a sound and disposing mind at the time she made the subject document.

Decision

52The application is dismissed.

Costs

53The respondents may make written submissions as to costs limited to 3 pages plus a costs outline within 10 days hereof. If the respondents are requesting two sets of costs submissions, they should address why that should be so.

54The applicant shall reply in like manner within 5 days of receipt of the respondents’ submissions. The parties are directed to make earnest, bona fide efforts to settle the issue of costs.

Tranmer J.