Ontario Superior Court of Justice

Court File No.: CV-24-0016-00
Date: 2025-03-24

Style of Cause

IN THE MATTER OF THE ESTATE OF JOHN JOSEPH HAMRAK also known as JOHN JOSEPH HAMRAK SR also known as JOHANN JOSEPH HAMRAK, deceased

B E T W E E N:

Joe Hamrak
Applicant
Counsel: A. Colquhoun, for the Applicant

• and -

Grant Gregory Ernst Jobst in his capacity as Estate Trustee of the Estate of John Joseph Hamrak also known as John Joseph Hamrak Sr also known as Johann Joseph Hamrak and in his personal capacity, and Richard Morris Hamrak
Respondents
Not appearing

Heard: February 20, 2025, at Fort Frances, Ontario
Justice: S.J. Wojciechowski

Decision on Application

Introduction

[1] This application is brought by the applicant, Joe Hamrak, seeking directions regarding the validity of the Last Will and Testament of the respondent, John Joseph Hamrak also known as John Joseph Hamrak Sr. also known as Johann Joseph Hamrak (“John Hamrak”).

[2] There are two wills of John Hamrak, one dated March 16, 2022 (“the 2022 Will”) and one dated November 22, 2023 (“the 2023 Will”). The applicant submits that the 2022 Will is valid, and further submits that the 2023 Will is invalid on account of the absence of testamentary capacity of John Hamrak.

[3] I agree with the position of the applicant for the following reasons.

Background

[4] John Hamrak died at the age of 87 on January 7, 2024. At that time, he was divorced, did not have a common law spouse, and was survived by his two sons, the applicant, Joe Hamrak, and the respondent, Richard Morris Hamrak (“the Respondent Richard”).

[5] Also surviving John Hamrak was his nephew, the respondent, Grant Gregory Ernst Jobst (“the Respondent Grant”).

[6] At the time of his death, based upon a review of the medical records filed, there is no doubt that John Hamrak was suffering from cognitive decline and advanced dementia. This medical condition of John Hamrak was noted by the applicant in the spring of 2023 at which time he became concerned with John Hamrak’s memory and cognition. In May 2023, John Hamrak was pulled over by the police for driving on the wrong side of the road, and was directed to be medically assessed for the purposes of his driver’s licence.

[7] In June 2023, after undergoing a geriatric mental health assessment, John Hamrak was noted as having “mild impairment” and a decline to his “concrete thinking and executive function”. But by the fall of 2023, John Hamrak’s memory and cognition began to decline rapidly. Friends and family members noticed the decline and expressed concerns. In October 2023, medical providers of John Hamrak noted a “marked decline” and a progression from mild cognitive impairment to dementia. By November 20, 2023, John Hamrak’s dementia was referred to as “advanced”.

The 2022 and 2023 Wills

[8] Before any cognitive decline was noted in John Hamrak – all of which occurred in 2023 – the 2022 Will was executed on March 26, 2022. In the 2022 Will, the applicant was named as the Estate Trustee, and John Hamrak left his house located at 146 Pine Crescent, Atikokan, Ontario and its contents to the applicant. The residue of the estate of John Hamrak, according to the 2022 Will, was to be divided into three shares, with 34% going to the Respondent Richard, 33% going to the Respondent Grant, and 33% going to the applicant.

[9] Shortly after executing the 2022 Will, John Hamrak showed the 2022 Will to the applicant, and also showed the applicant where John Hamrak stored the 2022 Will at 146 Pine Crescent, Atikokan, Ontario.

[10] After the death of John Hamrak, the applicant was unable to locate the 2022 Will. The last time the applicant saw the 2022 Will was September 2023, and the Respondent Grant advised the applicant that the last time he saw the 2022 Will was October 2023.

[11] There is no original copy of the 2022 Will which could be found. However, a copy of the 2022 Will exists, and the said copy reflects the execution of the 2022 Will by John Hamrak.

[12] The 2023 Will was executed by John Hamrak on November 20, 2023. By this time, the medical providers of John Hamrak noted he was suffering from advanced dementia.

[13] The 2023 Will names the Respondent Grant as the estate trustee, and divides the estate of John Hamrak into three shares to be divided between the applicant, the Respondent Grant and the Respondent Richard. The 2023 Will was prepared by Brenda Bell, a solicitor retained by John Hamrak. However, a review of her file does not reflect any attempt to ascertain the testamentary capacity of John Hamrak or whether he knew of or approved of the contents of the 2023 Will. Clearly, the 2023 Will differs substantially from the 2022 Will and provides for a different distribution of John Hamrak’s estate than that expressed to and discussed with the applicant.

[14] Around this same time, on October 17, 2023, John Hamrak inexplicably transferred $95,000 to the Respondent Grant from an account which John Hamrak directed be held jointly with the applicant. At the time the applicant was added to the bank account of John Hamrak in 2022, the applicant was told by John Hamrak it was John Hamrak’s intention that the monies in this bank account be transferred to the applicant upon John Hamrak’s death.

The Application and Parties' Positions

[15] Both the Respondent Richard and the Respondent Grant have been served with the applicant’s application materials which seek to validate the 2022 Will and declare the 2023 Will invalid. Neither of these parties have served a Notice of Appearance. The Respondent Grant has advised the applicant that he does not oppose the relief sought by the applicant. The Respondent Richard advised the applicant that he does not oppose the applicant being appointed estate trustee for John Hamrak.

Legal Principles

[16] In order for a will to be valid, four factors must be established, namely (i) that the will was duly executed, (ii) that the testator had testamentary capacity at the time the will was executed, (iii) that the testator had knowledge of and approved the contents of the will, and (iv) that the testator was not unduly influenced to make the will. See Neuberger v. York, 2016 ONCA 191 at para. 77.

Analysis and Findings

[17] Based upon the evidence filed, it is clear that the 2022 Will is valid, and that the 2023 Will is not valid based upon the fact that John Hamrak’s testamentary capacity was severely impaired in November 2023 when the 2023 Will was executed, and there is no evidence from his solicitor that John Hamrak knew or approved of the terms in the 2023 Will.

[18] Accordingly, the 2023 Will is declared to be invalid.

[19] In terms of the 2022 Will, since an original cannot be produced, the validity of the 2022 Will must be proven. In order to do so, the applicant must establish four factors, namely (a) due execution of the will, (b) proof of contents of the lost will; (c) particulars tracing possession of the will, and (d) if the presumption of revocation applies, rebuttal of the presumption the will was destroyed by the testator with the intention of revoking it. See Sorkos v. Cowderoy at para. 8.

[20] The applicant has produced a copy of the 2022 Will which was duly executed. There can be no doubt as to its contents, and the evidence of the applicant clearly traced the possession of the 2022 Will to October 2023. It appears the 2022 Will was lost or destroyed between October 2023 and the death of John Hamrak.

[21] Because John Hamrak lacked testamentary capacity by November 2023, and applying Sorkos, the presumption of revocation does not apply.

[22] Similarly, without capacity, John Hamrak was unable to make a gift of $95,000 to the Respondent Grant. Had those monies not been withdrawn, they would have passed directly to the applicant upon the death of John Hamrak and not formed part of the estate.

Orders

[23] Accordingly, based upon the foregoing, I grant the relief sought in the application and make the following orders:

1. The 2023 Will is invalid and of no force and effect.
2. The 2022 Will is the valid last will and testament of John Hamrak, and the 2022 Will has been proved and may be admitted into probate.
3. Once the 2022 Will is admitted into probate, the applicant, Joe Hamrak, shall be appointed as estate trustee in accordance with the terms of the 2022 Will.
4. The transfer of $95,000 to the Respondent Grant was not a valid gift and those monies shall be forthwith paid by the Respondent Grant to the applicant.

Costs

[24] The applicant also sought his costs of bringing this application to be paid out of the estate of John Hamrak. In support of his claim for $16,727.39 in legal fees including HST, and disbursements of $775.59 including HST, for a total of $17,502.98, the applicant provided the court with a Bill of Costs.

[25] In seeking full indemnity costs from the estate, counsel for the applicant relied upon the decision of Faieta J. dated February 5, 2024 in Bernadette Morin-Strom v. Robert Albert Pelling et al., which cites a description of the principles impacting awards of costs in estate matters from para. 14 of the Ontario Court of Appeal decision in Westover Estate v. Jolicouer, 2024 ONCA 81:

Estate trustees are generally “entitled to be indemnified for all reasonably incurred costs in the administration of an estate” . . . . Saddling estate trustees personally with legal costs where litigation was caused by the testator might well discourage them from initiating reasonably necessary legal proceedings to ensure the due administration of an estate . . . . However, this is not an absolute rule. A court may order otherwise if an estate trustee has acted unreasonably or in substance for their own benefit, rather than for the benefit of the estate . . . .

[26] While the efforts of the applicant can be said to have been necessary in order to give effect to the last wishes of his father, John Hamrak, the fact is that this application only benefits the applicant. The relief sought and granted facilitates the transfer of the Atikokan residential property to the applicant alone, which was not contemplated by the 2023 Will. In addition, the applicant receives the $95,000 which was transferred to the Respondent Grant in October 2023.

[27] In the words of Westover Estate, to a large degree the applicant has acted in substance for his own benefit.

[28] After my review of the Bill of Costs filed, because I am not prepared to order full indemnity costs to be paid from the estate of John Hamrak, I am not going to weigh in with my thoughts on whether the costs sought are reasonable. Assuming the rates charged and the time spent were in accordance with the informed instructions of the applicant, the amount agreed to be paid is between the applicant and his counsel.

[29] In light of the finding that the outcome of this application has benefited the applicant over the Respondent Grant and the Respondent Richard, reasonable costs shall be assessed in the amount of $8,500 inclusive of fees, disbursements and HST which shall be payable from the estate of John Hamrak.

“Original signed by” ___
S.J. Wojciechowski

Released: March 24, 2025