Court File and Parties

Court File No.: CV-23-00697196-00ES Date: 2024-02-13 Superior Court of Justice - Ontario

Re: The Toronto-Dominion Bank, Applicant And: Caroline Witoszkin, Respondent

Before: C. Gilmore J.

Counsel: Erica Baron and Ljiljana Stanic, Counsel for the Applicant Jonathon Kappy and Darien Murray, Counsel for the Respondent

Heard: January 31, 2024

Endorsement on Application

Introduction

[1] The Toronto-Dominion Bank (“TD”) seeks the court’s direction with respect to giving notice of the Will executed on March 10, 2022 (the “2022 Will”) by Judith Jenkins (“Judith”) to the beneficiaries named in Judith’s Will dated September 11, 2008 (“the 2008 Will”).

[2] The Respondent Caroline Witoszkin (“Caroline”) opposes the relief sought. She submits that she has no such duty or obligation to notify the beneficiaries of a prior Will made by Judith. She is the named Estate Trustee in the 2022 Will and TD cannot impose such obligations on her.

[3] For the reasons set out below, TD’s application is dismissed. The Estate Trustee of the 2022 Will has no fiduciary obligation to the beneficiaries of the 2008 Will and accordingly no requirement to provide them with notice.

Background Facts

[4] Judith was unmarried and her parents had predeceased her. She had no children or close family. Caroline had been Judith’s father’s portfolio manager at TD. After her father’s death in 2006, Judith became a client of Caroline’s.

[5] The 2008 Will named TD as the Executor of Judith’s Estate. That Will left specific items to remote family members and the residue was divided between certain charities and organizations.

[6] Caroline was employed by TD from 1984 until the date of her retirement in November 2020. She deposed that she and Judith became good friends shortly after they met in 1993 and were friends for 13 years before she began to manage Judith’s portfolio in 2007. Caroline deposed that she always thought of Judith as a friend rather than a client.

[7] Caroline described that she and Judith would go out for meals about once a month and often travelled to the Stratford Festival together. When Judith was diagnosed with cancer in 2015, Caroline took her to all of her appointments. When it became harder for Judith to leave the house, Caroline would take her for drives or to visit her parents’ graves.

[8] Caroline was aware that during the time she was employed by TD, she was bound by their Code of Conduct which sets out as follows:

Except for our relatives and people with whom we share a financial or close personal relationship, we must not assume authority over a customer's financial affairs, including acting as executor, agent, trustee, attorney or in any other fiduciary capacity for a TD customer or be a beneficiary under a will or a trust of a TD customer, where this relationship may give rise to any perception of conflict of interest, undue influence or other impropriety. If we learn that a TD customer (other than a relative or a person with whom we share a financial or close personal relationship) has named, or is considering naming us in any of these capacities, we must immediately inform our manager, Human Resources representative or other appropriate TD official. TD will assess the situation to determine whether or not it is appropriate for us to accept the appointment or bequest and/or any appropriate conditions to impose in relation to ongoing dealings with the customer.

[9] Caroline deposed that when Judith was making her Will in 2008, she wanted to leave her Estate to Caroline. Caroline declined because she was an employee of TD at that time. She suggested that Judith could name TD as her Estate Trustee and she referred Judith to a lawyer in Hamilton. Caroline was also not permitted to act as Judith’s Power of Attorney for Property as that role involved financial management. However, in 2008, Judith named Caroline her Power of Attorney for Personal Care.

[10] In the years following 2008, Judith approached Caroline on several other occasions asking if she could leave something to her in her Will. Caroline declined. She was making over $400,000 a year as a portfolio manager at TD and did not want to put her income or reputation at risk.

[11] In 2021, after Caroline retired, Judith informed her that she had named her as the Estate Trustee and sole beneficiary of her Will, drafted in 2018 (the “2018 Will”). This is the first that Caroline learned of the 2018 Will. Since she was no longer working for TD or bound by its Code of Conduct, she did not think it was necessary to advise TD of the contents of the 2018 Will.

[12] In a letter dated June 28, 2022, William Thatcher, the drafting solicitor of the 2018 Will, set out that he met with Judith for an hour in his office concerning the 2018 Will and confirmed her testamentary wishes. He further confirmed that Caroline was not present and had not influenced Judith to make the 2018 Will.

[13] At Mr. Thatcher’s request, Judith wrote a letter to Mr. Thatcher in 2020 which describes her intentions and confirms her capacity in relation to the 2018 Will. A copy of the letter is set out below:

Should there be any questions regarding the creation of my last will and testament this note is written to clarify matters, so there will be no doubt whatsover that I, alone, all by myself, made the decision to ask Caroline Witoszkin to act as my legal guardian and I, alone, all by myself, decided to leave in my will what I have to Caroline Witoszkin.

I may not be of sound body – cancers are neither respectful of nor healthy for the body they invade – but I believe I can prove I am of sound mind in these chaotic times:

If American, I would not vote for Trump or Pence of members of the present-day Republican party.

If British, I would not vote for Boris Johnson and his Brexit associates.

If a Torontonian, I would not have voted for the Ford brothers for city council or mayor.

As a Canadian living in Ontario, I did not vote for Dougie Ford and his Conservative party to "rule" our province in the last provincial election. (I will admit reluctantly the viral pandemic has forced Dougie and his cronies to function much better than their original intentions.)

As well, I believe we should be kind to all whenever possible.

I believe in second chances.

I believe in a life with seasons – although I could live very nicely without freezing rain.

I believe in love and the gift of time and good health, if lucky, before dying so a person can know and learn from love's dimensions, responsibilities and joys.

I believe in Beauty and the power of Art in all its forms.

I believe in good food and drinks and conversation during leisurely gatherings with thoughtful, caring, witty people. (I would add singing and dancing, but I wish to save people from my off-key and two-left-feet "talents".)

I believe in laughter with ... and sometimes, necessarily, at.

I believe I can be a much better person then I am, and I believe in the need to try truly to be a better person while I can.

And I believe in Caroline Witoszkin.

Now, please, honour my decisions as you would expect your decisions to be honored by me.

Signed: Judith (Jaye/Jay) Jenkins

[14] Judith executed her final Will on March 10, 2022. The 2022 Will was also drafted by Mr. Thatcher. Caroline deposed that she called Mr. Thatcher at Judith’s request because Judith intended to arrange for her own assisted dying process. Judith invited Caroline to her home to discuss her intentions and told her that she would be leaving $100,000 to each of her friends Eric Kozera and Michael Walker. Caroline’s evidence was that she did not contact TD about the 2022 Will as she was no longer employed by TD and not bound by their Code of Conduct.

[15] Judith died on March 23, 2022 using MAID. She was required to be assessed by two different doctors in order to give informed consent for that process. Her assets held by TD exceeded $1.5 million on that date.

[16] Judith wrote to Caroline in March 2022, remarking on their friendship and how special Caroline was to her. The letter is set out below:

March 2022

Dear Caroline,

You were needed and wanted in my life, but I did not realize that until you were there. You even filled much of the black hole of loneliness I have known since childhood.

Thank you for so many good times, great times, wonderful times.

Thank you for taking amazing care of me.

I do apologize for becoming a nuisance, a real nuisance, which I never intended.

I can't even arrange an exit date which does not interfere with what should be happy times for you.

Make the 24th of every month your special day and surround it with good times the rest of each month.

You are a very special gift to me, which I do not deserve, but, selfishly, enjoy immensely.

Friendship is a kind of loving. I am very proud and happy to have you as my friend.

I hope life gives you everything to make you happy.

Thank you again for so much kindness, good advice, laughter, and all those important dimensions of everyday living, like just being together.

Your friend,

Jay

P.S. When you are having a bad day, remember: You are a beautiful person, inside and out, and you can handle anything. You are a very special person. The world is lucky to have you.

[17] Mr. Thatcher’s letter of June 28, 2022 sets out his discussions with Judith about the changes to her 2018 Will. He met with her on two separate occasions in March 2022. He stated that Judith was adamant about what she wanted. Mr. Thatcher confirmed his view that there was no undue influence.

[18] Caroline obtained a Certificate of Appointment in relation to the 2022 Will on May 26, 2022. The Application was served on Caroline’s lawyer on April 5, 2023. TD froze the Estate funds on July 15, 2022.

[19] On June 27, 2022, TD wrote to Caroline and expressed concern about the changes from the 2008 Will and requested that Caroline advise the beneficiaries of the 2008 Will of their interest in that Will and the circumstances related to the changes to the 2022 Will.

[20] Mr. Thatcher responded to TD and advised that Caroline was unwilling to comply with TD’s request. Mr. Thatcher advised that Caroline had been named as Executor and a beneficiary of a previous Will made in 2018. This was the first time TD became aware of the 2018 Will.

[21] Mr. Thatcher advised that Judith contacted him in early 2022 to advise of her terminal cancer diagnosis and that she was planning a process for assisted dying. Mr. Thatcher had no concerns about Judith’s intentions or capacity at that time.

[22] TD does not take the position that the 2022 Will is invalid. It simply seeks direction from the court to provide notice to the beneficiaries under the 2008 Will in the event they wish to challenge it on any basis.

Legal Issues and Analysis

[23] This application is brought pursuant to r. 14.05 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”), which permits an application to be brought for the opinion, advice or directions from the court where there is an issue which affects the rights of a person in respect of the administration of an estate.

[24] TD also relies on r. 5.03(1) of the Rules, which requires that every person whose presence is necessary for the court to adjudicate a matter should be joined as a party to the proceeding. TD argues that without the 2008 beneficiaries having notice of the 2008 Will there cannot be a fair determination of the issues.

[25] TD requests that in the special circumstances of this case, the court should exercise its discretion to order Caroline to give notice of the 2008 Will to the beneficiaries therein. Those parties are the only ones who would have a financial interest in the Estate and standing to challenge the 2022 Will. The relief sought is specific to these unique factual circumstances and TD emphasized that they are not arguing to expand the duties of estate trustees to search for and give notice to prior beneficiaries in all cases.

[26] TD raises a number of issues which it submits should give the court pause about the circumstances of the 2022 Will. First, Caroline describes her close personal friendship with Judith but provides no corroboration for this. As well, Judith was a vulnerable and isolated individual who was ill and without a spouse, children or family. She used a different lawyer to draft her 2008 and 2022 Wills. There is also the professional relationship between Caroline and Judith and Caroline’s clear conflict as both the Estate Trustee and sole residual beneficiary. While TD does not rely on the presence of suspicious circumstances to support the relief they are seeking, they directed the court to those circumstances in order to underscore the types of evidence the beneficiaries of the 2008 Will might adduce on a Will challenge.

[27] TD concedes that there is no general rule requiring that notice be given to beneficiaries under prior testamentary instruments. In the normal course, family members who are excluded from a Will would be aware of this and the availability to challenge the Will and request production of prior wills. However, in this case the charities and other organizations named in the 2008 Will would not have any way of discovering their status as a prior beneficiary or the advisor/client relationship between Caroline and Judith.

[28] TD relies on a Kentucky case, J.P. Morgan Chase Bank v. Longmeyer, 275 S.W. (3d) 697 (Ky. 2009). In that case, the testator executed a Will and revocable trust in 1987, in which a predecessor of the bank had been named as trustee. Ten years later, she changed her will and removed all of the charitable beneficiaries, appointed her lawyer as Estate Trustee and left her caregiver $500,000. The bank was advised that it was obligated to inform the charitable beneficiaries of changes and suspicious circumstances. The charities contested the Will and there was a settlement; however, the lawyer named as Estate Trustee then sued the bank, claiming it had breached its fiduciary duties by informing the prior beneficiaries of the change in the trust.

[29] The Supreme Court of Kentucky held that trustees owe duties to contingent beneficiaries regarding their potential interests. As such, the bank as a former trustee was required to inform the former beneficiaries of the changes to the trust document made under suspicious circumstances.

[30] I agree with the Respondent that this case may be distinguished because it dealt with an inter vivos trust and not a testamentary document.

[31] The court’s main concern in rejecting the arguments of the Applicant is that it would be difficult if not impossible to narrow the type of ruling sought by the Applicant to the facts of this case. In short, the duty which the Applicant seeks to impose on estate trustees is neither tenable nor practical and could result in a flood of applications to this court by estate trustees who seek directions as to whether they are required to notify multiple beneficiaries of historical Wills made by a testator.

[32] In this case, the 2022 Will is not the Will immediately following the 2008 Will. The 2018 Will would also have to be disclosed to the 2008 beneficiaries if TD’s relief is granted. The terms of that Will are similar to that of the 2022 Will and can only bolster the clear intentions of the testator.

[33] I do not agree that Caroline’s evidence lacks corroboration. Mr. Thatcher, an estates solicitor of some experience, drafted both the 2018 and 2022 Wills. In his letter of June 28, 2022, he stated that he was first contacted by Judith in 2018. He met with her and was aware of her personal circumstances. Judith was very clear that she wanted Caroline to be her Executor and beneficiary. He did not express any concern about undue influence from Caroline.

[34] Mr. Thatcher goes on to state that he met with Judith again in March 2022. She wanted to update her Will as she intended to go through the assisted dying process due to her advanced cancer. When the 2022 Will was executed, Mr. Thatcher stated that Judith was once again very clear about what she wanted and that he was not concerned that her wishes had been clouded by either influence from Caroline or medications.

[35] With respect to the friendship between Caroline and Judith, there is evidence from Caroline that they were friends long before she became Judith’s investment advisor. There is also the letter from Judith written to Caroline in March 2022 (reproduced above) which cannot be characterized as anything other than a loving letter from a dear friend.

[36] The letter from 2020 written to Mr. Thatcher (also reproduced above) makes mention of Judith “believing” in Caroline.

[37] While it is true that Caroline’s evidence has not been tested, her contention that Judith wanted to give her a testamentary gift as far back as 2008 cannot be ignored. It was Caroline’s idea that Judith name TD as her Executor and give her Estate to charity. That is exactly what Judith did. It was also in 2008 that Judith named Caroline as her Power of Attorney for Personal Care. I accept that Caroline and Judith’s friendship went beyond that of an advisor/client relationship. It would be unusual, to say the least, to name one’s investment advisor as an Attorney for Personal Care if there was not a closer relationship.

[38] As for TD’s concerns about the professional relationship and how that may play into the possibility of suspicious circumstances, that concern can be answered in two ways. First, Caroline retired in November 2020 and was therefore no longer subject to the TD Policy related to the prohibition of being named as an executor or beneficiary in a client’s Will. Second, the policy itself makes an exception for “relatives and people with whom we share a financial or close personal relationship”, so long as the relationship does not give rise to “any perception of conflict of interest, undue influence or other impropriety.” I do not find that the policy was breached by Caroline because she was either excluded from it due to retirement, or she fell within the described exception.

[39] In Lugarich v. Fabris, 2021 ONSC 7294, 73 E.T.R. (4th) 103, the applicant was the son of the deceased. The deceased had named his lawyer, Mr. Fabris, as Estate Trustee and left his entire estate to his late wife’s daughter. His son commenced a challenge of the validity of the 2018 Will. In the Lugarich case, the applicant objected to Mr. Fabris acting on the sale of estate property because he was a party to the will challenge, he was in an alleged conflict of interest and he was in an adversarial position to the applicant.

[40] The court rejected all of the applicant’s arguments on the grounds that he “fundamentally” misunderstood his position in the litigation. As he was not a beneficiary under the 2018 will, the executor owed no fiduciary duties to him. Unless the applicant was successful on the will challenge, the only fiduciary duties owed by Mr. Fabris were to the beneficiary of the 2018 will: at para. 8.

[41] TD submits that Lugarich does not apply because the applicant in that case had the benefit of knowing that he was a beneficiary under the previous Will and he was able to pursue his claims on that basis. While I understand that the facts are somewhat different from this case, Penny J. was quite clear that the applicant could not interfere with the sales process, nor did Mr. Fabris owe him any fiduciary obligation.

[42] While Judith may have been ill, I find that this had minimal or no effect on her vulnerability. Although there is no capacity assessment in this case, I note the presence of two pieces of evidence which demonstrate that Judith was functioning at a level which would indicate she was capable of independent decision making:

a. The lucid and expressive letter written to Caroline in March 2022, and b. The attestation of two doctors in March 2022 who confirmed that Judith was able to provide an informed consent for her assisted dying process.

[43] Given all of the above, I find that similar to the principles in Lugarich, Caroline does not have any fiduciary duty to and is therefore not obligated to provide notice to the beneficiaries of the 2008 Will. TD’s application is dismissed.

Costs

[44] TD sought costs of $10,000 on a partial indemnity scale if successful. The Respondent sought costs of $45,000 on a full indemnity scale if successful.

[45] This is not a case for full indemnity costs. TD took steps which they concede related to somewhat unusual factual circumstances. Their request for advice and direction from the court was not misplaced.

[46] The costs sought by the Respondent, even on a partial indemnity scale ($28,000), are disproportionate given the issues at stake, the material filed, and the time required for argument, which lasted about an hour and 15 minutes.

[47] The case was somewhat unique, and the costs award should not be punitive. TD shall pay costs to the Respondent of $10,000 all inclusive.

C. Gilmore, J. Date: February 13, 2024