Court File and Parties
Court File No.: CV-23-00707305
Date: October 3, 2025
Superior Court of Justice – Ontario
Re: Bozena Gorska in her capacity as Estate Trustee of the Estate of Janina Jackiewicz, Plaintiff
And: Yolanta Zawadzinski aka Yolanta Edwards, Defendant
Before: Justice Papageorgiou
Counsel:
- Sheila Morris, for the Plaintiff
- Louis S. Vittas, for the Defendant
Heard: May 23, 2025
Endorsement
Background
[1] This Application arises out of a dispute about the validity of a will purportedly executed by Janina Jackiewicz (the "Deceased") on May 13, 2022 (the "2022 Will").
[2] There was a 2019 Will executed on September 19, 2019 (the "September 2019 Will").
[3] There was also a previous will executed in March 2019 (the "March 2019 Will").
[4] The Deceased died on September 20, 2023, at the age of 95.
[5] The Deceased was survived by her 2 adult children: Andrew Jackiewicz ("Andrew"), who suffers from epilepsy and had lived with the Deceased for his entire life until she moved into a retirement residence in September 2021; and Maria LaRochelle ("Maria"), who resides in Florida.
[6] Other surviving family members include Jadwiga Gorska ("Jadwiga"), the Deceased's sister; the Deceased's niece, the Respondent Yolanta Zawadzinski ("Yolanta"), who is also Jadwiga's daughter; and Debra Stewart ("Debra"), who is Andrew's common-law spouse.
[7] The Trustees of the Deceased's Estate pursuant to the March 2019 Will are Bozena Gorska ("Bozena" or the "Applicant") and Yolanta.
[8] The Trustee of the Deceased's Estate pursuant to the September 2019 Will is the Applicant Bozena alone.
[9] The Trustee of the Deceased's Estate pursuant to the 2022 Will is Yolanta alone.
[10] Bozena alleges that the Deceased did not have testamentary capacity when she executed the 2022 Will. She also alleges that Yolanta exercised undue influence over the Deceased when she was without capacity.
[11] Bozena seeks an Order setting aside the 2022 Will and declaring the September 2019 Will to be the Deceased's valid Last Will and Testament and other ancillary relief.
[12] Yolanta propounds the 2022 Will.
Decision
[13] For the reasons that follow, I direct that this matter proceed to trial.
[14] There are conflicts in the evidence and credibility issues that cannot be resolved on this paper record.
Issues
- Issue 1: Are there suspicious circumstances?
- Issue 2: Can this case be decided on a paper record?
Analysis
Issue 1: Are there suspicious circumstances?
The Applicable Law with Respect to Capacity and Undue Influence
[15] The propounder of a will (in this case Yolanta) is aided by a rebuttable presumption. Upon proof that the will was duly executed with the requisite formalities and having been read over to or by a testator who appeared to understand it, it will generally be presumed that the testator knew and approved of the contents and had the necessary testamentary capacity: Dujardin v. Dujardin, 2018 ONCA 597, 423 D.L.R. (4th) 731, at paras. 43-44 ("Dujardin"); and Vout v. Hay, [1995] 2 S.C.R. 125, D.L.R. (4th) 431, at paras. 26-28 ("Vout").
[16] However, where there are suspicious circumstances related to the testator's mental capacity, these have the effect of displacing both the presumption in favour of knowledge and approval, and that in favour of testamentary capacity: Dujardin, at para. 46.
[17] The burden on those attacking the will is satisfied by pointing to some evidence which, if accepted, would tend to negative knowledge and approval or testamentary capacity. Suspicious circumstances may arise from: (1) circumstances surrounding the preparation of the document; (2) circumstances tending to call into question the capacity of the grantor; or (3) circumstances tending to show that the free will of the grantor was overborne by acts of coercion or fraud: Vout, at para. 25; and Dujardin, at para. 45.
[18] Additional suspicious circumstances include: (a) the extent of physical and mental impairment of the testator around the time the will was signed; (b) whether the will in question constituted a significant change from the former will; (c) whether the will in question generally seems to make testamentary sense; (d) the factual circumstances surrounding the execution of the will; and (e) whether a beneficiary was instrumental in the preparation of the will: Botnick et al. v. The Samuel and Bessie Orfus Family Foundation et al., 2011 ONSC 3043, 71 E.T.R. (3d) 210, at para. 110 ("Orfus Family Foundation").
[19] Where such suspicious circumstances are present, the rebuttable presumption is spent and the propounder of the will reassumes the legal burden of proving knowledge and approval. If the suspicious circumstances relate to mental capacity, the propounder reassumes the legal burden of establishing testamentary capacity. Both must be proved in accordance with the civil standard proportionate to the gravity of the suspicion: Orfus Family Foundation, at para. 108.
[20] The burden of proving undue influence is on the party challenging a will: Orfus Family Foundation, at para. 109.
[21] Factors, if present, that may support a finding of undue influence include: (a) where the testator is dependent on the beneficiary for emotional and physical needs; (b) where the testator is socially isolated; (c) where the testator has experienced recent family conflict; (d) where the testator has experienced recent bereavement; (e) where the testator has made substantial pre-death transfer of wealth to the respondent; (f) where the testator has made a new will not consistent with previous wills; and (g) other factors which have been recognized as indicative of undue influence, including where a testator has failed to provide a reason or explanation for unexpectedly excluding a family member or where the testator uses a lawyer previously unknown to him or her and chosen by the respondent: Anroop et al. v. Naqvi et al., 2025 ONSC 160, at para. 174, citing John Gironda et al. v. Vito Gironda et al., 89 E.T.R. (3d) 224, 2013 ONSC 4133, at para. 77.
[22] In this case, the evidence is that the 2022 Will was read over to the Deceased and that it was duly executed with the requisite formalities. Therefore, there is a rebuttable presumption that the Deceased knew and approved of the contents of the 2022 Will and had the necessary testamentary capacity.
The Suspicious Circumstances
[23] Bozena argues that there are sufficient suspicious circumstances to rebut the presumption. Most of these suspicious circumstances arise as a result of evidence and findings in a previous application adjudicated by Dietrich J. that was brought by Debra related to powers of attorney that Yolanta procured.
[24] Dietrich J. found that Yolanta had procured these powers of attorney from the Deceased through undue influence at a time when her cognitive abilities were impaired. She concluded that Yolanta's conduct was reprehensible and deserving of sanction. The following are evidence filed in that proceeding and/or findings in the POA Proceeding relied upon heavily by Bozena as well as evidence related to the new will that have not been adjudicated upon:
The POA Proceeding
On March 22, 2017, the Deceased executed a Continuing Power of Attorney for Personal Care and Property in favour of Debra and Andrew jointly.
In or around May 2019, Yolanta brought the Deceased to the Deceased's lawyer, Duncan Boardman ("Mr. Boardman"), and had the Deceased sign Power of Attorneys for property and personal care in her favour.
The Deceased revoked these. Debra's evidence was that the Deceased retrieved them, read them with a magnifying glass for the visually impaired, and told her she had made a mistake in signing them.
The Deceased attended at Mr. Boardman's office. There she executed Powers of Attorney in favour of Debra on September 27, 2019, as well as a new will.
In or around September 2021, Debra moved the Deceased to a retirement home, Vistamere. She was in the process of moving the Deceased from Vistamere to a long-term care home.
In or around October 2021, Yolanta had the Deceased execute additional POAs prepared by a lawyer unknown to the Deceased, appointing Yolanta as Power of Attorney for property and personal care (the "POAs"). Debra was unaware of this.
Then, Yolanta used her POAs to remove the Deceased from Vistamere. She brought her to live at Copernicus Lodge, a retirement home where Yolanta lived with Jadwiga, the Deceased's sister, in a two-bedroom unit.
There were a number of orders made in that proceeding such that the Deceased would remain at Copernicus Lodge living with Yolanta and her sister while the action was proceeding. The court orders froze the Deceased's accounts but permitted funds to be withdrawn for payments to Copernicus Lodge for residency, food, and care expenses.
As well, in that proceeding, counsel for the Deceased was appointed pursuant to section 3 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (the "SDA").
Yolanta arranged a capacity assessment which took place in March 2022, conducted by Dr. Kaminska who met with the Deceased for 2.5 hours.
Dr. Kaminska concluded that the Deceased did not have capacity to give a power of attorney for property. Her mental capacity to give a power of attorney for personal care may have been better preserved, particularly her ability to understand whether a proposed attorney had a genuine concern for her welfare.
The New Will
While the capacity assessment was underway, unbeknownst to the Deceased's section 3 counsel, or Debra or Bozena, the Deceased retained yet another lawyer, Ms. Danuta Radomski, who prepared a new will for the Deceased.
The 2022 Will significantly changed the September 2019 Will. In particular, there were new gifts to Yolanta of $100,000 and to Jadwiga of $50,000. The cash gift to Maria, the Deceased's daughter, increased from $300,000 to $800,000. The result was that the overall gift to Andrew, who was disabled, decreased by approximately $800,000, notwithstanding that the Deceased herself described him as very disabled and likely to end up in a care facility.
None of the facts related to the new will were known during the POA Proceeding.
Other Findings in the POA Proceeding
At the time of the 2022 Will, there were orders providing that all family members have reasonable access to the Deceased in person, by telephone, and by virtual means. Yolanta alleged that she had been encouraging the Deceased to speak to Debra, but that she did not want to speak to Debra until she apologized for unilaterally removing her from her home without her agreement. Of the 17 visits that ought to have occurred, the Deceased had only six visits and none were private. The Court found that Yolanta impeded her family's access.
The 2022 Will was signed when the section 3 counsel said the Deceased was starved for company.
Yolanta secretly recorded a meeting between the Deceased and her section 3 counsel. While Yolanta claimed that it was the Deceased's wish that the conversation be recorded, her section 3 counsel indicated that this was a breach of trust of the highest order.
Medical Evidence Related to the Deceased's Capacity
There were circumstances calling into question the Deceased's capacity and evidence of physical and mental impairment before the Court in the POA Proceeding and also before me.
Debra gave evidence in the POA Proceeding that the Deceased had wandered from her home in 2021 on two occasions. On one of these occasions, she brought a strange male home. On another occasion in 2021, neighbours found the Deceased on the front porch and Debra had to go out and bring her home. On another occasion she wandered outside and crossed the road.
On May 27, 2021, Dr. G. Leung at the Geriatric Clinic of Michael Garron Hospital examined the Deceased and her CT scan and suspected a diagnosis of Lewy Body dementia or mixed vascular Lewy Body dementia of moderate severity. He recommended a move to a long-term care home.
Shortly following the Deceased's move to Vistamere on September 19, 2021, her care team conducted the following assessments:
(i) On September 21, 2021, Dr. J. Levasseur performed a Montreal Cognitive Assessment ("MoCA") on which the Deceased scored 3/30, although the assessor noted that her impaired vision and the fact that the test was administered in English and not Polish could be a reason for the low score.
(ii) Between September 20, 2021, and October 1, 2021, Ms. R. Surell, a Registered Nurse, did an assessment. She noted the Deceased's impaired cognitive status regarding short-term memory, and orientation to time, place, and person. She noted that the Deceased was at risk of wandering and required assistance and direction for meals.
(iii) On October 15, 2021, Lisa Eves, a home and community care support coordinator, opined that the Deceased was not capable of making a decision about her own admission to a nursing home.
[25] The difficulty with adjudicating the issue of suspicious circumstances is that there is new evidence before me that was not part of the evidence considered during the POA Proceeding.
[26] At the time of the POA Proceeding, Yolanta was a self-represented party. She now has counsel and presented evidence of three additional witnesses.
[27] None of this evidence has been tested through cross examination. If this evidence is accepted, it could impact the assessment of the suspicious circumstances.
Issue 2: Can this case be decided on a paper record?
[28] In this proceeding, Bozena relies heavily on evidence in and findings in the POA Proceeding to support her position that Yolanta's motivations at all times have been financial gain and that her evidence cannot be trusted.
[29] She argues that the new 2022 Will is just another example of Yolanta exercising undue influence over a vulnerable elderly person who was cognitively impaired.
[30] She has filed her own and Debra's additional affidavits regarding the Deceased. She points out that Yolanta failed to pay the costs order in the POA Proceeding, provide the required accounting within timelines required, and that even when she did provide it, it does not explain approximately $25,000 removed from the Deceased's accounts.
[31] Debra also filed a handwritten note made by the Deceased regarding her wishes in or around 2017 or 2019 which is consistent with the March or September 2019 wills and which she argues shows the Deceased's true wishes.
[32] Yolanta's position was, and always has been, that she intervened in the Deceased's care because Debra, the Deceased's daughter-in-law, had used the Deceased's love and concern for her son Andrew as a means to influence the Deceased emotionally and financially.
[33] Yolanta says that the Deceased did not want to be admitted to Vistamere, and that she had the POAs executed because she felt the Deceased was being abused and had been improperly placed in Vistamere by Debra. Indeed, she received a request from the Deceased's daughter, Maria, to intervene in the Deceased's care. She says that it was the Deceased who wanted to change her will and that she did not participate in that decision or influence her in any way.
[34] She says the Deceased phoned her own friend, Ms. Elizabeth Krynski, who knew a Polish speaking lawyer. The Deceased received the name Danuta H. Radomski ("Ms. Radomski").
[35] The Deceased scheduled an appointment to meet with Ms. Radomski in person.
Additional Evidence Not Provided in the POA Proceeding
Maria's Evidence
[36] The Deceased's daughter, Maria, provided a detailed affidavit. She says the Deceased expressed significant concerns about Debra's care over the years and was afraid because Debra used Andrew as a weapon. Debra also financially abused the Deceased and purportedly told Maria that she couldn't stand the Deceased.
[37] Maria says that she was the one who asked Yolanta to get involved after her mother told her she wanted to live with her sister at Copernicus Lodge. Her mother felt isolated and far away from her family and friends because Vistamere was 60 km away from the home she had lived in for the last 50 years. She says her mother wanted Yolanta to be her POA and begged her to have Yolanta pick her up so she could live with her sister. Maria feels that the Deceased's health dramatically improved because Yolanta took her to several doctors.
[38] The Deceased told Maria that after Debra and Bozena had thrown her out of her house, she needed to update her will. She was afraid that Debra would throw Andrew out as well and she didn't want Debra to inherit Andrew's money after she was gone. She wanted to even out her estate between Andrew and Maria. Maria reminded her that Yolanta had been taking care of her and so the Deceased said she would leave money to Yolanta and her sister as well.
[39] Bozena argues that Maria and Yolanta have been colluding in respect of the Deceased's estate planning for some time. This is in part because of the increased gifts to them and inferences they think should be made based upon previous findings in the POA Proceeding.
Maria Kroasnodebski
[40] There is also an affidavit from Maria Kroasnodebski, a nurse who was friends with the Deceased for 70 years.
[41] She says the Deceased was afraid of Debra, Andrew, and Bozena, and describes abuse by Debra and Andrew of the Deceased. The Deceased told her she wanted Yolanta to be her power of attorney as Yolanta had always looked out for her and did what was best for her.
[42] I note that Ms. Kroasnodebski's affidavit has been appended as an Exhibit to Maria's affidavit. The parties agreed that Yolanta could deliver Maria's affidavit outside of the court ordered timetable. I requested that the parties confirm that there were no cross examinations of any of the parties and that Maria and Ms. Kroasnodebski did not deliver any affidavits in the POA Proceeding. It appears that Bozena takes the position that Ms. Kroasnodebski's affidavit was not delivered in this proceeding because it is an Exhibit to Maria's, but it is sworn and is in the motion record. Even in the absence of this affidavit, I would send this matter to trial in any event.
[43] I also note here that in the POA Proceeding, there was an affidavit from another one of the Deceased's friends who she knew for 55 years, Wanda Raston, who says that she never heard the Deceased say a bad word about Debra. She appreciated that without Debra, she and Andrew would both need caregivers. The only thing she ever heard about Debra was positive.
Ms. Radomsky
[44] Ms. Radomsky, the lawyer who prepared the 2022 Will was examined as a witness.
[45] She had two phone calls and two meetings with the Deceased.
[46] Ms. Radomsky said she spent a long time making sure the Deceased had testamentary capacity and had no concerns in that regard. She was also not concerned that the Deceased had been unduly influenced.
[47] Bozena expresses many concerns as to why Ms. Radomsky's evidence should not be accepted.
[48] Additionally, Dr. Kaminska, who met with the Deceased a mere months before Ms. Radomsky, made many findings which conflict with Ms. Radmonsky's.
[49] Bozena's counsel also argues that based upon the POA Proceeding findings, the court should infer that the Deceased's demeanor and recall about her financial circumstances and other details was better when she saw Ms. Radomsky than it was when she saw Dr. Kaminsky because Yolanta had secretly been coaching the Deceased in the hours before Ms. Radomsky spoke with the Deceased.
[50] Yolanta's counsel points out that the absence of capacity to provide powers of attorney does not necessarily equate to the absence of capacity to make a will.
[51] Although Dr. Kaminska was specifically tasked with determining testamentary capacity she did not conclude that the Deceased did not have the testamentary capacity. She stated that the Deceased showed appreciation of the nature of a will and its effects (although did not appreciate what her assets were and that there could be barriers to testamentary capacity related to her mental deficit and possibly her dependency on others).
The Medical Evidence
[52] The medical evidence presented during the POA Proceeding may take on a new light if Maria's, Ms. Kroasnodebski's, and Ms. Radomsky's evidence is accepted.
[53] Dr. Leung's diagnosis of suspected Lewy Body Dementia appears to have been based on a virtual assessment, with no physical examination and based on a history provided by Debra.
[54] The assessment by Dr. J. Lavasseur states that the Deceased was moved to Vistamere because Debra and Andrew could "no longer cope with her." However, the note also indicates that the Deceased's niece, Bozena, thought that the Deceased functioned "perfectly" and had cognitive problems only when under stress.
[55] Yolanta's counsel also argued that all the assessments at Vistamere were conducted during a period of extreme stress because she had just been moved from her home to a place she did not want to be, and at a time when she had not yet had a number of procedures arranged by Yolanta that improved her health.
[56] There are also medical reports from other physicians that contradict medical reports that the Deceased was significantly cognitively compromised. On December 1, 2021, Dr. Thomas discussed the procedure for the replacement of the Deceased's pacemaker and said that she was quite sharp for her age and was high functioning.
[57] There may also be other medical reports that exist that were not before me that could be relevant.
Conclusion
[58] Given the findings made by in the POA Proceeding, the new and conflicting evidence of the Deceased's daughter, Maria, as well as Ms. Radomsky and Ms. Krasnodebski, and the failure of the parties to conduct any cross examinations on these affidavits, this matter must proceed to trial.
[59] I note as well that there will also likely have to be argument as to whether any findings made in the POA Proceeding are legally binding on the parties in this proceeding since they are not the same parties. The POA Proceeding was between Debra and Yolanta. This proceeding is between Bozena and Yolanta.
[60] This matter shall be expedited. These parties have already been through one proceeding and the administration of the Deceased's estate has been held up pending these proceedings.
[61] I am no longer sitting on the Estates team. I am therefore seizing myself, subject to my availability and the decisions of the Estate and Civil team leads.
[62] Costs are reserved to the trial judge, whoever that may be.
Papageorgiou J.
Date: October 3, 2025