Court File and Parties

Court File No.: CV-24-00000318-0000 Date: 2025-10-28 Ontario Superior Court of Justice

Between: Patricia Ann Mitten (Peterson), Applicant – and – David Peterson and Linda Peterson, Respondents

Counsel: Patricia Ann Mitten (Peterson), In Person, Applicant Phillip M. Crannell, for the Respondents

Heard: September 15, 2025

Before: Holowka J.

I. Overview

[1] The Applicant ("Ms. Mitten") is the separated married spouse of the Respondent David Peterson ("Mr. Peterson"), deceased. Mr. Peterson died on October 17, 2024, during the course of these proceedings. The Respondent, Linda Peterson ("Ms. Peterson"), is the mother of David Peterson.

[2] The Applicant is representing herself in these proceedings.

[3] Initially, the Applicant filed a Guardian Application, which also sought to set aside the Will of Mr. Peterson who was, at the time, still living. The scope of the Application was considerably narrowed during the case management stage. This is detailed in the endorsements that preceded the hearing of this Application before me.

[4] The Applicant seeks the following relief:

a. To set aside the Will of Mr. Peterson, dated October 24, 2023, on the basis that he lacked the capacity to execute this Will;

b. An order requiring the ashes of Mr. Peterson to be released to her.

[5] The Respondent opposes the relief sought and requests that the Application be dismissed and that the court make a declaration that the Will dated October 24, 2023, is valid. The Respondent also seeks their costs.

[6] The Applicant contends that any deficiencies in the evidentiary record supporting her position, such as the lack of an affidavit from Mr. Peterson's treating physician, Dr. Evans, are due to directives issued by the presiding judge involved in the informal case management of this matter. I do not accept this contention. The case was managed in a thorough manner, and the Applicant was advised on multiple occasions to seek legal counsel. The Applicant did not submit any affidavit from Dr. Evans within the designated time frame for doing so.

[7] For the reasons set forth below, the Application is dismissed. The Will of David Peterson, dated October 24, 2023, is the valid last Will and testament of David Peterson.

II. Facts

A. Timeline

[8] The estate of Mr. Peterson is modest—its value is between $1,200 and $10,000, with few, if any, debts. It is also straightforward—there are no business interests, investments, or minor dependants.

[9] The parties agree, and I find that the evidence clearly shows Mr. Peterson had multiple health issues during the relevant period, such as cirrhosis, diabetes, mobility problems, rheumatoid arthritis, heart issues, and severe nerve damage. These health problems worsened because Mr. Peterson did not follow his medication instructions. Dr. Evans served as Mr. Peterson's physician.

[10] In the fall of 2020, Ms. Mitten and Mr. Peterson met, and they married in September 2022. They separated either in January or July 2023. After their separation, Ms. Mitten continued to care for Mr. Peterson intermittently. Her brother kept living with Mr. Peterson in his apartment.

[11] A criminal assault charge was laid against Ms. Peterson in relation to Ms. Mitten in January 2023. It was later resolved by Ms. Peterson entering into a peace bond.

[12] On or around June 2, 2022, Mr. Peterson had a Will prepared by lawyer Richard Wright, naming Ms. Mitten and Ms. Peterson as joint and several estate trustees. The Will designated Ms. Mitten as the residual beneficiary.

[13] On or about August 19, 2022, Mr. Peterson amended his Will, appointing Ms. Mitten as estate trustee and Ms. Peterson as the alternate trustee. The Will designated Ms. Mitten as the residual beneficiary and Ms. Peterson as the alternative beneficiary. The Will was drafted with the assistance of lawyer Richard Wright.

[14] In October 2023, Mr. Peterson attended the offices of lawyer Matthew Ward for the purposes of changing his Will and powers of attorney. The Will was executed, signed by Mr. Peterson in the presence of witnesses who subscribed the Will in the presence of Mr. Peterson.

[15] Mr. Peterson reviewed the Will and powers of attorney on two occasions: first, when he met with Mr. Ward and provided instructions on October 6, 2023, and again on October 12, 2023, when further instructions were given. He received draft documents on October 17, 2023, and verbally approved them on October 18, 2023. He attended Mr. Ward's office on October 24, 2023, and signed the Will and powers of attorney.

[16] The evidence reflects further contact between Mr. Peterson and the law offices of Mr. Ward. Mr. Ward's law clerk discussed the Will and its terms with Mr. Peterson on October 6, 13, and 18, 2023. The telephone calls of October 13 and 18, 2023, were unsolicited and instigated by Mr. Peterson.

B. Medical Evidence

[17] The affidavit of Ms. Mitten asserts that Mr. Wright insisted on a "capacity assessment" due to the conduct of Ms. Peterson and anticipated litigation regarding Mr. Peterson's estate. She states that the assessment occurred during a home visit by Dr. Evans on August 18, 2022. The assertion of a home visit is not supported by medical documentation.

[18] Ms. Mitten has alleged that Mr. Peterson suffered from Wernicke-Korsakoff syndrome ("WKS") and was diagnosed with this condition on January 18, 2023. WKS is a brain disorder caused by a deficiency of thiamine and is most commonly seen in people with chronic alcohol abuse. For the purposes of this application, WKS can be generally described as a brain and memory disorder.

[19] Ms. Mitten has also asserted that Mr. Peterson was not diagnosed with WKS on January 18, 2023 but was "diagnosed with being financially incompetent, he could not make decisions on cheques or money, and had a cognitive impairment." She states that he was not diagnosed with WKS until March 14, 2023.

[20] There is one critical document relied upon by the Applicant in support of her position. It is entitled "Manulife Financial Group Benefits Attending Physician's Update." It was completed by Dr. Evans on or about January 18, 2023. The relevant portions of the document state the following:

a. Primary Diagnosis: End Stage Liver Disease

b. Secondary Diagnosis: Rheumatoid Arthritis

c. Subjective Symptoms: Poor memory, Poor focus, Severe Pain

[21] The document discusses "cognitive/mental restrictions." Dr. Evans answered "yes" when asked if the patient has a cognitive or mental impairment. He responded "no" to whether the patient is competent to endorse checks and control the use of proceeds. Dr. Evans marked boxes indicating restrictions: severe in concentration, moderate in analytical reasoning, severe in learning new material, moderate in comprehension, and moderate in social interaction.

[22] Ms. Mitten believed that Mr. Peterson lacked capacity on January 18, 2023, when the form was completed, but she has taken the opposing position on other issues, such as signing documents like a release of medical records, investigations by Manulife, and the responsibility for costs related to these.

[23] There is considerable conflicting evidence regarding Ms. Mitten's views on Mr. Peterson's incapacity and whether he was ever diagnosed with WKS. There is no clear documentary evidence establishing that Mr. Peterson was diagnosed with WKS.

[24] A Hospital Admission Report, dated March 14, 2023, indicates that doctors specifically considered this question and declined to diagnose WKS. Similarly, a Hospital Discharge Report dated March 23, 2023, comes to the same conclusion.

[25] Contrary to the Applicant's assertion that a diagnosis of WKS was established during an additional hospitalization of Mr. Peterson from June 29 to July 6, 2023, the relevant medical records do not indicate a diagnosis of WKS or incapacity pertaining to Mr. Peterson. The Hospital Discharge Report dated July 6, 2023, does not confirm such diagnoses.

[26] Before the June/July 2023 hospitalization, Mr. Peterson's social worker, Stephanie Stoddard, noted that Mr. Peterson was participating in decision-making and that he was accusing the Applicant of attempting to portray him as incompetent, in light of Ms. Mitten's awareness of changes Mr. Peterson wished to make to his Will. Ms. Stoddard believed that Mr. Peterson was capable of making his own decisions.

[27] On October 7, 2023, Dr. Evans signed a "Certificate of Incapability" related to Mr. Peterson's application for CPP Benefits, with Ms. Mitten named as trustee regarding these benefits.

[28] In the context of this application for CPP benefits, Doctor Evans stated that Mr. Peterson's diagnosis was severe alcoholism and answered "no" to the following questions regarding Mr. Peterson:

a. Does the person have:

i. Good general knowledge of what is happening to his/her money or investments?

ii. Sufficient understanding of time, in order to pay bills promptly?

iii. Sufficient memory to keep track of financial transactions and decisions?

iv. Ability to balance accounts and bills?

v. Significant impairment of judgement due to altered intellectual function?

[29] The Applicant claims, partly based on this document, that Mr. Peterson was diagnosed with severe cognitive impairment, making him unable to understand or execute documents. Dr. Evans did not meet with Mr. Peterson on October 7, 2023, nor did he perform a capacity assessment on that date. During discovery, Ms. Mitten admitted that the Certificate of Incapability does not state that Mr. Peterson was incapable of seeing to his legal affairs. As mentioned earlier, the disputed changes to Mr. Peterson's Will and powers of attorney took place in October 2023.

[30] From October 24, 2023, the date the contested Will was executed, until his death on October 17, 2024, Mr. Peterson was hospitalized twice. The first period was from November 3 to November 9, 2023, and the second was from March 15 to March 25, 2024. During neither hospitalization was Mr. Peterson diagnosed with WKS.

[31] Before discharge on November 9, 2023, Mr. Peterson received alcohol counselling at the hospital, was informed about key warning signs to watch for, was referred for an endoscopy, and was directed to follow up with Dr. Evans. He demonstrated a good understanding of these instructions. Regarding Mr. Peterson's understanding of these instructions, Ms. Mitten indicated that he was able to "trick" the Doctors.

[32] Following the death of Mr. Peterson on October 17, 2024, a coroner's investigation was conducted, and a report was prepared. The report references a diagnosis of WKS but does not specify how, when, or by whom it was made. The coroner lists the sources of information as Ms. Mitten, Ms. Peterson, a community care paramedic, and Mr. Peterson's medical records.

III. Analysis

A. The Issues

[33] There are three issues to be determined in this application regarding the validity of the contested Will dated October 24, 2023:

a. Has the Respondent discharged her burden of proving due execution of the Will pursuant to the Succession Law Reform Act? In other words, has the Respondent proven that Mr. Peterson had knowledge of the terms of his Will, approved the terms, and had the requisite testamentary capacity?

b. If so, has the presumption of validity been rebutted by the Applicant by providing "some evidence" which, if accepted, could give rise to "suspicious circumstances?"

c. If such "suspicious circumstances" are present, has the Respondent discharged her legal burden of establishing testamentary capacity?

[34] A fourth issue concerns the ashes of Mr. Peterson, which are held in trust by Quinte Cremation. I will address the matter of Mr. Peterson's remains after the resolution of the primary application before me.

B. Due Execution of the Will

[35] The burden at this initial stage is upon the Respondent with respect to due execution, knowledge and approval and testamentary capacity. In this regard, the Respondent is aided by a reputable presumption. See Anderson v. Anderson Estate, 2024 ONSC 7118 at para. 22.

[36] Section 4(2) of the Succession Law Reform Act, R.S.O. 1990, c. S.26 states:

(2) Subject to subsection (3) and to sections 5 and 6, a Will is not valid unless,

(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 or acknowledges 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 subscribe the Will in the presence of the testator.

[37] As noted in Issa v. Aiello, 2025 ONSC 4055, at para 21, "[o]nce the preconditions of due execution have been met, the propounder of the Will benefits from a presumption that the testator knew and approved of the contents of the Will and had testamentary capacity…"

[38] It is straightforward, and I have no difficulty concluding that the October 2023 Will meets the requirements of due execution. It is in writing, was read by Mr. Peterson on at least two occasions, and was signed by him and two witnesses. Mr. Ward, the solicitor who prepared the Will had produced an affidavit of execution sworn October 24, 2023. These details are not challenged by the Applicant.

[39] In light of this finding, the presumption that Mr. Peterson knew and approved of the contents of the Will and possessed testamentary capacity applies.

[40] Moreover, the evidence regarding the circumstances surrounding the execution of the October 2023 Will is detailed in Mr. Peterson's file at Mr. Ward's law office and establishes that:

a. Mr. Peterson was involved in the drafting of his Will;

b. He communicated with Mr. Ward's staff regarding his instruction and followed up with further instructions;

c. Mr. Peterson called Mr. Ward's law office to provide these instructions; and

d. He reviewed the Will on two occasions at the law office without any concerns about his ability to understand arising.

[41] In reaching the conclusion that the Respondent has established due execution of Mr. Peterson's October 2023 Will, I have considered the very straightforward nature of the estate. The simplicity of the estate supports my conclusion, on a balance of probabilities, that the Will was duly executed, and that Mr. Peterson understood its contents.

C. Some Evidence of Suspicious Circumstances

[42] Given my foregoing conclusion, the burden then shifts to the Applicant—the party challenging the purported Will—to produce some evidence that would tend to rebut the presumption. This is outlined in Issa, at para. 24, relying, in part, upon Vout v. Hay, 1995 2 S.C.R. 876:

Secondly, 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, para. 78; Botnick v. The Samuel and Bessie Orfus et al, 2011 ONSC 3043, para. 110).

[43] The assessment of the evidence presented by the Applicant on this issue is challenging. It is voluminous and frequently internally inconsistent.

[44] I am sympathetic to Ms. Mitten and her situation. I believe she cared for Mr. Peterson, at least intermittently, during difficult times. While they undoubtedly shared a meaningful relationship at one point, as Mr. Peterson's health declined, their interactions became more characterized by conflict.

[45] The principal argument by the Applicant is that Mr. Peterson lacked testamentary capacity, which was related to his diagnosis of WKS. I observe, however, that even if a diagnosis of WKS were confirmed, it would not necessarily mean that Mr. Peterson lacked testamentary capacity.

[46] Considering the quality of the Applicant's evidence, which includes frequent inconsistencies, multiple misinterpretations or misstatements regarding Mr. Peterson's medical records, and refusals to respond to relevant questions, I conclude that relying on Ms. Mitten's highly subjective interpretation of events would be risky without confirmatory evidence. There is no affidavit evidence from Dr. Evans, Mr. Peterson's physician, or from any other independent source. As a result, the existence of medical documentation assumes greater importance in establishing whether the Applicant has succeeded in pointing to "some evidence" that, if accepted, would tend to negative knowledge and approval, or testamentary capacity.

[47] Generally, the medical documentation does not provide "some evidence" that Mr. Peterson lacked testamentary capacity or even that he was formally diagnosed with WKS. However, two documents warrant further explanation: first, the October 7, 2023, Certificate of Incapability, and second, the Manulife Financial Group Benefits Attending Physician's Update, dated January 18, 2023. If the Applicant meet the "some evidence" of "suspicious circumstances," it would need to be because of one or both of these documents.

[48] In my view, the Certificate of Incapability does not constitute "some evidence" of "suspicious circumstances" in relation to the testamentary capacity of Mr. Peterson. When Dr. Evans completed the Certificate, he had not met with Mr. Peterson for a month prior to the date on the form. Consequently, it does not reflect Mr. Peterson's mental condition on October 6, 2023, when Mr. Peterson provided instructions to Mr. Ward regarding the contested October 2023 Will. Although the Certificate indicates limitations on Mr. Peterson, it also states that he does not suffer from "significant impairment of judgement due to altered intellectual function." The document does not provide a diagnosis or explain how any limitations manifest themselves. The information provided by the form is very limited. It should be understood in the context of Mr. Peterson's hospitalization from November 3-9, 2023, when no observations were made concerning Mr. Peterson's capacity.

[49] Despite the Applicant's contrary position, the Certificate of Incapability is not a capacity assessment. The document does not purport to be a capacity assessment pursuant to the Substitute Decisions Act, 1992, S.O. 1992, c. 30, and does not address the question of whether Mr. Peterson had a "sound disposing mind". Assessment of capacity requires that Mr. Peterson had a "sound disposing mind," which, as described in McGrath v. Joy, 2022 ONCA 119, entails:

a. An understanding of the nature and effect of a Will;

b. Recollection of the nature and extent of their property;

c. An understanding of the extent of what they are giving under the Will;

d. Remembrance of the people the testator might be expected to benefit under the Will; and

e. Where applicable, an understanding of the nature of the claims people might make against the estate.

[50] Similarly, the second document, titled the Manulife Financial Group Attending Physician's Update, fails to meet the "some evidence" threshold needed to rebut the presumption in this matter. The form was completed in January 2023; therefore, any observations about Mr. Peterson's mental state are temporally distant from when the Will was executed in October of that year. The document does not evaluate Mr. Peterson's capacity nor provide any diagnosis. Although the document states that Mr. Peterson has a "cognitive / mental" impairment, and Dr. Evans opines that Mr. Peterson is not "competent to endorse cheques and direct the use of proceeds thereof," aside from "poor memory, poor focus, and severe pain," it offers no further details on how the impairment manifests.

[51] Notably, when the Manulife form was created, Mr. Peterson signed it, consenting to the release of his medical information and accepting responsibility for any associated fees. During discovery, Ms. Mitten testified that Mr. Peterson had "mental capacity" when signing the form. She believed that, as his power of attorney, he could sign it for matters related to his benefits.

[52] In my opinion, neither document, either individually or collectively, offers "some evidence" of "suspicious circumstances," as they are not directly related to his testamentary capacity in October 2023. The significance attributed to these documents cannot be assessed in isolation from the broader context, including evidence pertaining to the drafting and execution of the Will. Mr. Peterson's poor health and alcoholism, in and of themselves, do not raise concerns regarding his capacity in this particular case. While there is evidence that WKS was discussed on numerous occasions, there is no record of a medical diagnosis of WKS indicating any issues concerning Mr. Peterson's testamentary capacity.

[53] I conclude that the Applicant has not rebutted the presumption.

D. Has the Respondent Established the Testamentary Capacity of Mr. Peterson?

[54] Considering my conclusion that the Applicant has not provided "some evidence" of "suspicious circumstances," the presumption remains unrebutted. Therefore, it is unnecessary for me to evaluate the evidence concerning testamentary capacity. I conclude that the October 2023 Will of Mr. Peterson is the last valid Will of Mr. Peterson.

E. The Remains of Mr. Peterson

[55] The Applicant also seeks an order that the cremated remains of Mr. Peterson be released to her. She submits that this is in accordance with Mr. Peterson's clearly expressed wishes. I am unaware of any evidence in the material before me that establishes this assertion. There is no written or documentary evidence to confirm this contention. The Will of Mr. Peterson only provides for cremation.

[56] Neither party referred me to any law or judicial precedent that governs this situation. The oral submissions focused on the validity of the October 2023 Will.

[57] During oral argument, I asked the Applicant whether dividing the ashes between her and Ms. Peterson was a reasonable compromise. The Applicant rejected this idea and maintained that the remains should remain undivided regardless of where the court determines they should be placed.

[58] The duties of an executor or estate trustee include ensuring that the deceased is given a decent burial or is cremated. This duty is accompanied by a right to custody of the body. See Hunter v. Hunter, [1930] 4 D.L.R. 255. This right does not confer a property right as no one can have a property interest in a corpse. Here, the body of Mr. Peterson has been cremated.

[59] There is little caselaw in this area. Most of the caselaw concerns the religious differences of parties who disagree on the appropriate disposal of the body of a deceased. See, for example, Saleh v. Reichert, 104 D.L.R. (4th) 384 (Ont. Ct. (Gen. Div.)).

[60] In Saleh, Bell J. held that where there is a dispute about funeral arrangements, it is the executor or administrator that has the authority to dispose of and make the decisions as to the disposal of human remains. In a situation where there seems to be no possible agreement, the reasoning in Saleh is persuasive.

[61] Given my findings above regarding the validity of the Will of October 2023, I conclude that the disposition of the ashes of Mr. Peterson shall be made by the executor, Linda Peterson.

IV. Conclusion

[62] In light of the foregoing reasons, I make the following orders:

a. The Applicant's Application is dismissed;

b. A declaration is made that the Will of David Peterson dated October 24, 2023, is the valid last Will and testament of David Peterson; and

c. The cremated remains of Mr. David Peterson shall be disposed of by the Executor, Linda Peterson.

V. Costs

[63] The Respondent may submit written submissions on costs, limited to three pages, along with a costs outline, within 10 days of this date.

[64] The Applicant shall respond similarly within 5 days of receiving the Respondent's submissions.

[65] If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves.

Mr. Justice Brian Holowka

Released: October 28, 2025