2017 ONSC 7402, 2017 ONSC 7402

CITATION : Yeas v. Yeas , 2017 ONSC 7402 PEMBROKE COURT FILE NO.: CV-13-1156 DATE: 2017/12/12 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) DANIEL YEAS ) ) ) W. Ormond Murphy for the Applicant ) - and - ) ) ) JOHN CARL YEAS, KEVIN YEAS, KAREN LAVIGNE, BRENDA LEE SPERBERG ) ) ) ) M. Peter Sammon for the Respondents ) ) ) HEARD at Pembroke: October 23, 24, 25, 30 and 31, 2017 REASONS FOR DECISION KERSHMAN J. Introduction [ 1 ] John Yeas was a successful businessman who ran two businesses dealing with scrap and recycling.

Shortly before his death, he and his wife Donna signed a domestic contract wherein he agreed to pay her a certain amount of money and transfer two parcels of property to her in exchange for releases from her. [ 2 ] At about the same time, John executed new Powers of Attorney for personal care and management of property, naming his sons Kevin Yeas and John Carl Yeas, also known as Charlie Yeas. [ 3 ] John executed a new will on June 13, 2013. [ 4 ] Brenda Lee Sperberg, another of John’s children, is also a party to this matter. [ 5 ] On April 16, 2014 the Honourable Justice Ray granted an order dealing with the issues to be tried and the parties to the proceedings. [ 6 ] Paragraph 2(

d) of the Order reads as follows: The court orders that the issues to be tried and the parties to the proceedings be as follows: (

d) Daniel Yeas affirms and John Carl Yeas, Kevin Yeas and Brenda Lee Sperberg deny that the alleged will was procured by undue influence and/or fraud. [ 7 ] At the commencement of trial, Dan withdrew the allegation in paragraph 2(

d) of the Order that the June 2013 will was procured by undue influence and/or fraud.

[ 8 ] The trial is proceeding on the issue of whether John had testamentary capacity to sign the will of June 13, 2013. If he did not, then his will of January 20, 1999 would be his last will and testament. [ 9 ] The Court will use the first names of the parties to identify them. In the normal course the Court would identify the parties by their last names, however for ease of reference the Court will refer to them by their first names. The reference to first names is not intended to be a sign of disrespect. Factual Background 1) Family [ 10 ] John had a high school education.

He was married to his first wife and had five children: Kevin Yeas (“Kevin”), John Carl Yeas, also known as Charlie Yeas (“Charlie”), Brenda Lee Sperberg (“Brenda”), Daniel Yeas (“Dan”), and Karen Lavigne (“Karen”). [ 11 ] After his first marriage ended, John married Donna on July 10, 1971. John and Donna raised the five children together. [ 12 ] John was the sole office director and shareholder of 671157 Ontario Inc., operating as Bee Line Disposal, and 665952 Ontario Inc., operating as Bee Line Auto Wreckers. When the business started in 1980, John, Donna, Kevin, Charlie and Dan all worked there.

Both operating companies will be referred to as the “Companies” because both operated business activities out of the same location or yard. [ 13 ] Donna was the office manager and bookkeeper for the Companies from close to inception until 2013. [ 14 ] Both Kevin and Charlie worked for the Companies from 1980 until present. [ 15 ] Brenda started working for the Companies in 2005 and remains there. In 2005, she started as a bookkeeper. As of 2013, she became and remains the office manager. [ 16 ] Dan finished grade 9 and went to work for the Companies at the age of 16.

He left in November 2001 to further his career in management at Tomlinson Services as a waste services coordinator until May 2012, when he and his son went to work in Fort McMurray. There, he worked for Ledcor as a heavy equipment operator until April 2013 when he was laid off. [ 17 ] In May of 2011 John was taken to the hospital by Donna where he was diagnosed with a mild stroke. In November 2011, John was assessed by Dr. G. Thomas, a geriatric psychiatrist with the Renfrew County Geriatric Mental Health Outreach Program, in relation to his cognitive abilities. Dr.

Thomas prepared a report saying that John suffered mild to moderate dementia and that he could not manage his personal affairs or his property. Dr. Thomas instructed that his power of attorney, Donna, act for John in those capacities. [ 18 ] In or about early January 2012, John was assessed by his personal physician, Dr. Galley, who had been his doctor since 1989. Dr. Galley reported that John did have capacity to manage his personal affairs and property. [ 19 ] John retained Mary Fraser, a Pembroke lawyer, to prepare powers of attorney for personal care and management of property in favour of Kevin and Charlie.

Mary Fraser sent John to a roster capacity assessor, Mr. Leonard Burnstein, to determine his capacity to give and revoke powers of attorney and to manage his property. Mr. Burnstein provided written reports that John had the necessary capacity to revoke and provide new powers of attorney and to manage his property. [ 20 ] On April 25, 2012 Donna brought an Application against Charlie, Kevin and John seeking to declare that the Powers of Attorney given by John to Kevin and Charlie dated February 29, 2012 for the management of property and personal care were null and void.

She also sought a declaration that prior Powers of Attorney for property and personal care given to her were still in full force and effect. 2) Will of January 20, 1999 [ 21 ] John executed a last will and testament on January 20, 1999 in which he named Donna as his executrix and named Dan, Kevin and Charlie as his alternate executors. [ 22 ] John left all of his estate to Donna, provided that she was alive. [ 23 ] If Donna was not alive, then the assets of the estate go as follows: 1) 518 Villa Street, Pembroke, to Karen Lavigne; 2) 416 James Street, to Brenda Lee Moss (Sperberg); 3) 418 James Street and 590 McGee Street, Pembroke, to Brenda and Karen; 4) All shares and any corporations that he owned would be divided equally between the three sons, Kevin, Charlie and Dan, alive in equal shares per capita;

The balance of the estate would be paid to the Kevin, Charlie and Dan in equal shares per capita. 3) Domestic Contract [ 24 ] After Donna brought her Application, discussions were held in an effort to resolve the matter. Resolution came in the form of an offer from John to equalize his assets with Donna by paying her $500,000 and transferring two properties to her. [ 25 ] Donna counter-offered at $600,000 together with the transfer of the two properties.

Donna also wanted to ensure that, as an officer and director of the Companies, she would not give up signing authority and execute a release until such time that the funds were exchanged and the properties were transferred to her. [ 26 ] The parties agreed that the document would be called a “domestic contract”. Donna signed it January 31, 2013 and John signed on February 12, 2013.

Both parties received independent legal advice and the appropriate certificates were signed. [ 27 ] Subsequently thereto, Mary Fraser met John to discuss his estate planning, including the preparation of a will, as well as the restructuring of the Companies and how the $600,000 would be obtained to pay Donna. [ 28 ] On April 19, 2013, Mary Fraser discussed John’s will with him and who his potential executors and beneficiaries were to be.

The two of them discussed each of his five children and which ones would share in the will. [ 29 ] John came into the office on June 4, 2013, at which time he discussed various matters with Mary Fraser including the restructuring of the Companies and the financing to pay out Donna. At the same time, Mary Fraser reviewed John’s draft will with him, which he approved. It was agreed that he would sign the will on a later date when it was on will paper. 4) Restructuring of the Business [ 30 ] In order to pay Donna the $600,000, John had to borrow the money.

It was agreed that he would do so by way of an estate freeze and rollover under

section 85 of the Income Tax Act , R.S.C. 1985, c. 1 (5th Supp.), whereby John would receive preference shares and Kevin and Charlie would receive common shares. In order to reduce the amount of tax payable, John was taking the loan personally with the Companies acting as guarantors. Kevin and Charlie also guaranteed the debt. [ 31 ] The new loan documents were signed by John on June 4, 2013 when he came in to review the will instructions that he had provided on April 19, 2013.

The loan from the bank was eventually funded. 5) John in Hospital and the Will of June 13, 2013 [ 32 ] On June 8, 2013, John had a stroke. He was taken to the Pembroke Hospital and was subsequently transferred by air ambulance to the Ottawa Heart Institute (“Heart Institute”). On June 9, 2013, John had another stroke. [ 33 ] Once Mary Fraser heard that John had had a stroke, she wanted to give him the opportunity to sign his will. She was unable to go to the Heart Institute because she was the piano accompanist to her daughters who were in the finals in a music recital in Peterborough, Ontario.

She provided written instructions to her law partner and husband, Michael March, as to the execution of the will. Michael March attended at the Heart Institute on June 13, 2013 with Laurie Campbell, a longtime staff member of the firm, where he had the will signed. [ 34 ] On June 13, 2013 John executed his last will and testament at the Heart Institute with Michael March and Laurie Campbell as the witnesses. [ 35 ] The will named Kevin and Charlie as the executors. In addition the will also divided the residue of the estate between Kevin and Charlie in equal shares per stirpes .

No bequests were left to Donna, Dan, Brenda or Karen. [ 36 ] Subsequent to the signing of the will, Michael March made notes concerning the circumstances of the signing of the will. [ 37 ] John died on August 8, 2013. [ 38 ] Dan objected to the probate of the June 13, 2013 will, arguing that John did not have testamentary capacity to sign it.

Issues [ 39 ] The issues before the Court are as follows: 1) Did John have testamentary capacity when he gave instructions for the will on April 19, 2013? 2) Did John have testamentary capacity when he reviewed the draft will on June 4, 2013? 3) Were the contents of the June 4, 2013 draft will the same as the will signed on June 13, 2013?

4) Did John have testamentary capacity when he signed the will on June 13, 2013? Evidence Evidence of Mary Fraser Examination-in-Chief [ 40 ] Mary Fraser was called to the Bar in Ontario in 1990. She practiced in Toronto for 3 to 4 years, and then moved to Ottawa for one year. She moved to Pembroke to practice with her father in 1992-1993. She was in partnership with her father and her husband Michael March. Her father passed away in 2008. She then practiced with her husband Michael March until 2016 when he was appointed to the Ontario Court of Justice. [ 41 ] Since moving to Pembroke, 50% to 60% of Ms.

Fraser’s practice consists of wills, estate administration and estate litigation. The balance of her practice is real estate and family law. [ 42 ] Ms. Fraser prepared a timetable of what occurred on this file. The following is her evidence in relation to the timetable. [ 43 ] On January 30, 2012, Ms. Fraser met with John, Kevin and Charlie, having been referred by another lawyer. She met separately with John to get a history of the purpose of the meeting. Ms. Fraser testified that John had concerns about steps which had been taken by Donna in relation to the Companies.

He claimed that Donna, who was employed as a bookkeeper and administrator in the Companies, was preventing him from participating in the Companies. [ 44 ] He was also seeking advice from Ms. Fraser on how to deal with Donna attempting to take over management of John’s property by using the Power of Attorney. [ 45 ] According to her evidence Ms. Fraser got the impression that there was a fair amount of conflict in the marriage. John said that Donna was excluding other family members in an attempt to take over the running of the Companies. In order to satisfy herself that he knew what he was talking about, Ms.

Fraser asked John to identify all of the family members to understand the family dynamics. [ 46 ] At the meeting John told Ms. Fraser that he had previously had a stroke and a geriatric assessment had been done. [ 47 ] John disputed his capacity issues and had spoken to Dr. Peter Galley, who had been John’s physician since 1989. [ 48 ] Ms. Fraser asked for a letter from Dr. Galley as to John’s capacity.

She testified that if the opinion was supportive of John’s capacity, then it would be necessary to obtain a Capacity Assessment to dispute the position taken by Donna with respect to the Powers of Attorney. [ 49 ] Ms. Fraser received a letter from Dr. Galley dated January 11, 2012 which was addressed to H.J. Stewart Lavigueur, a lawyer in Eganville. It stated that John had been assessed by the Renfrew County Mental Health Outreach Program on November 10, 2011 by Dr.

Gordon Thomas, who concluded that John “was suffering from a medical condition which impairs his insight and judgment in terms of personal care and financial management.” [ 50 ] Dr. Galley goes further on to say that based on testing he performed, and notwithstanding John’s past medical problems and the report of Dr. Thomas, he was of the opinion that “Mr. Yeas appears to be mentally competent.” [ 51 ] After she received Dr. Galley’s letter, Ms. Fraser contacted Mr. Leonard Burnstein from the capacity assessment roster. Mr.

Burnstein conducted the capacity assessment and concluded on February 24 that: John Yeas meets the minimum standards set out in legislation to grant or revoke Power of Attorney. As the threshold to grant or revoke a Power of Attorney is lower than that to manage finances, any possible concerns about what might be construed as extremely minor symptoms of dementia are not significant in this assessment. It is my opinion that John Yeas is capable to grant or revoke a Power of Attorney. [ 52 ] On March 2, 2012, Mr. Burnstein prepared a report on John Yeas’ capacity to manage property.

He concluded as follows: John Yeas meets the minimum standards set out in legislation to manage property. He can process and understand information regarding his financial situation, both business and personal, at a level sufficient to manage property. He can appreciate the consequences of his financial decisions, lack of decision, or lack of having another person whom he trusts appointed to manage his property for him. Any possible concerns about what might be construed as extremely minor symptoms of dementia are not significant in

this assessment. It is my opinion that John Yeas is capable to manage property. [ 53 ] Based on the Burnstein reports, Ms. Fraser prepared two Powers of Attorney, which John executed on February 29, 2012, appointing Kevin and Charlie as his Powers of Attorney for both management property and personal care. [ 54 ] An Application Record was issued by Donna on April 21, 2012 claiming that John did not have capacity to execute new Powers of Attorney and seeking to reinstate herself on John’s Power of Attorney.

Donna swore an Affidavit on May 31, 2012, which formed part of the Application Record, and it was served on John, Kevin and Charlie on July 22, 2012. [ 55 ] Ms. Fraser testified that she had further meetings with John on March 8, 23, June 15 and 21, 2012, to discuss the Powers of Attorney as well as to discuss the draft Application to revoke the Powers of Attorney in favour of Kevin and Charlie. [ 56 ] Ms. Fraser contacted Donna’s lawyer, Robert Sheppard, and discussed a potential solution to the Application which would involve a buyout by John of Donna’s interest in Companies. [ 57 ] Ms.

Fraser told John that she had discussed the concerns with Mr. Sheppard and wanted to have a meeting of all parties in order to address outstanding issues. [ 58 ] On August 14, 2012 Ms. Fraser received a letter from Mr. Sheppard confirming that the clients were talking about a possible purchase of Donna’s interest in the business. In order to arrange the purchase, it was necessary to obtain financial information about the businesses which Donna held by virtue of her being the bookkeeper and/or administrator. [ 59 ] Ms.

Fraser said that in order to buy out Donna’s interest, valuations would be required of various assets. According to her evidence, John wanted to continue the business with Kevin and Charlie even after the relationship between him and Donna had ended. According to Ms. Fraser, John advised that Kevin and Charlie had been involved in the business from the outset and that the three of them wanted to keep it going. [ 60 ] Ms. Fraser testified that John had a high school education and that he had told her that he had built the Companies from the ground floor and that they were going to be his legacy.

He wanted Kevin and Charlie to continue the businesses even after he was gone. [ 61 ] On August 27, 2012 Ms. Fraser wrote to Mr. Donald Rosien, the accountant, dealing with the financial disclosure needed for possible purchase of Donna’s equitable interest in the Companies. The letter included a letter of direction signed by Donna in order to determine valuation of the Companies. [ 62 ] On October 2, 2012 a meeting was held with Ms. Fraser, Mr.

Rosien, John, Kevin and Charlie to get an overview of the value of the Companies. [ 63 ] On November 4, 2012 a written offer was made by John to Donna through counsel to purchase her equitable interest for the sum of $500,000 and to transfer two properties, being the James Street property and the Villa Street property (“Properties”). The payment of these monies and the transfer of these properties would constitute an equalization of John and Donna’s assets. In addition, the letter indicated that John would move out of the matrimonial home. [ 64 ] On November 14, 2012 Ms.

Fraser had another meeting with John. [ 65 ] On November 23, 2012 Mr. Sheppard forwarded Donna’s counter proposal offering to settle on the basis of her receiving $600,000 plus the transfer of the Properties, as well as her obtaining releases for equalization. In exchange she would resign as an officer and director of the Companies and remove her name as a signing officer at the bank. [ 66 ] On November 27, 2012 John accepted Donna’s counter proposal at a meeting held with Ms. Fraser, Kevin and Charlie. [ 67 ] On December 5, 2012 Ms. Fraser prepared and forwarded a draft separation agreement to Mr.

Sheppard. [ 68 ] Ms. Fraser believes that she received a call from Mr. Sheppard who indicated that Donna was upset that the document was called a separation agreement. She did not want it to be called a separation agreement. She was prepared to let John stay in the matrimonial home and she wanted changes to the documents so that it would not be a separation agreement. [ 69 ] Ms. Fraser prepared a revised agreement with the term “separation” being removed and with other changes to reflect Donna’s request.

The document was a domestic agreement under the Family Law Act and therefore she called it a domestic contract. [ 70 ] Ms. Fraser met with John on January 7, 2013 to review the document. She testified that John was satisfied with the document being called a domestic contract as opposed to a separation agreement. [ 71 ] On January 7, 2013 the domestic contract was forwarded to Mr. Sheppard. [ 72 ] On January 23, 2013 Ms. Fraser received correspondence from Mr.

Sheppard wherein he proposed further amendments based on tax issues and that any releases and Donna’s resigning as an officer, director and signing officer of the Companies would only be provided once the funds had been received and the properties were transferred. [ 73 ] On January 24, 2013 Ms. Fraser forwarded the revised domestic contract to Mr. Sheppard. [ 74 ] On January 31, 2013 Donna executed the domestic contract.

[ 75 ] On February 7, 2013 the domestic contract with certain amendments was forwarded from Mr. Sheppard to Ms. Fraser. [ 76 ] John personally executed the domestic contract on February 12, 2013. [ 77 ] Having seen him 18-19 times over the course of the file, Ms. Fraser stated that there was never a concern with respect to John’s capacity to enter into the domestic contract and the collateral documents, including the transfers.

The transfers of the properties and the domestic contract were all signed by John personally and not by Power of Attorney. [ 78 ] Once the funds were transferred to Donna together with the properties, she resigned as officer and director of the Companies and as signing officer at the bank.

The Application was dismissed by way of consent and draft order. [ 79 ] The Court notes the consent to the dismissal of the Application contains the following paragraph: The Order being consented to does not affect the rights of any person under disability. [ 80 ] Counsel for Donna and John both signed the consent. [ 81 ] In order to finance the domestic contract and the obligations thereunder, John was required to borrow money.

He went to TD Canada Trust (“TD”), where he had been banking for a period of time, and dealt with Steele Campbell. [ 82 ] TD obtained appraisals as to the value of the Companies and their assets and provided instructions to Ms. Fraser. [ 83 ] The financing was by way of a mortgage of $300,000 on the real estate together with a line of credit of $300,000 with security over the Companies’ assets, as well as a personal guarantee by John. The Companies were to be the primary debtors. [ 84 ] On April 19, 2013 Ms. Fraser met with John concerning the financing as well as his estate planning and a new will. Ms.

Fraser testified that in order for this transaction to go through, proper estate planning and will planning were required to ensure that if something were to happen to John in the future, there would be no loose ends. [ 85 ] At this meeting on April 19, Ms. Fraser spoke to John about estate planning and succession planning as she was concerned that the proposed financing as structured would create negative tax implications for John which potentially could be avoided.

The original transaction was structured with John drawing $600,000 from the Companies to pay Donna which would result in costly tax implications for him. [ 86 ] Ms. Fraser was aware that, based on John’s advanced age, other people were going to have to pay off the debt. According to Ms. Fraser, John said that because of the size of the debt – $600,000 – he was relying on Kevin and Charlie to pay off the obligation when he was no longer able to do so. She spoke with John about his estate plan and obtained permission from John for her to meet with Mr.

Rosien, the accountant, to discuss the tax issues. [ 87 ] In addition, on April 19, 2013 while together with John alone, she took preliminary instructions for the preparation of his will and spoke with John about what he wanted to do with the Companies. According to Ms. Fraser, John was very specific that he wanted the Companies to continue to run even after he retired, with Kevin and Charlie owning the Companies. His instructions were that Kevin and Charlie were to be the executors of his estate and his beneficiaries. [ 88 ] At the same time, Ms. Fraser reviewed John’s assets with him.

He indicated he also owned 30 acres in Stafford but was not sure whether he owned it personally or by a corporation. He also indicated that he owned an old school behind Brum’s Dairy which he believed was in the name of one of the Companies. [ 89 ] John discussed each of his children individually with Ms. Fraser and whether he would be providing for them in the will or not. He specifically spoke to Ms.

Fraser about Karen, Brenda, Dan, Kevin and Charlie. [ 90 ] He said that Brenda was working for the Companies and that she would be provided for. [ 91 ] John said that Karen was a nurse and that she and her husband were doing well and were secure. [ 92 ] As for Dan, John said that Dan had been there at the beginning but had then left the Companies about 12 years before to go to work for Tomlinson. According to him, Dan did not come back to work for the Companies. [ 93 ] John advised Ms. Fraser that he was concerned that Dan had been in touch with Donna about the business.

John also felt that Dan was doing well on his own. [ 94 ] As for Kevin and Charlie, John said that they had been partners from the beginning. According to Ms. Fraser, the viability of the Companies was dependent upon the Companies being able to continue and since Kevin and Charlie were operating them that they should be the beneficiaries. [ 95 ] Ms. Fraser testified that John discussed dividing his assets equally amongst his five children but decided against it.

What assets he had left after the domestic contract with Donna were basically the Companies’ assets, which for the most part were built by Kevin, Charlie and himself. It was his wish that Kevin and Charlie receive the Companies’ assets and that they not be shared with others. [ 96 ] Ms. Fraser testified that John: 1) was not a highly educated individual; 2) was consistent in his instructions to her; 3) was consistent about what assets he owned; 4) was consistent about who was and who was not to get his estate; 5) understood his legal

obligations to Donna; 6) recognized the potential equitable claims that Kevin and Charlie might have to the family business; and 7) was a person who knew his own mind in instructing her of how he wanted things divided. [ 97 ] On April 23, 2013, Ms. Fraser sent a letter to Mr. Rosien concerning the financing and the need to discuss the corporate restructuring. [ 98 ] On April 24, 2013 she had a meeting with John, Kevin and Charlie to discuss the financing of the company and how it would happen.

They also discussed the sale of the school property behind the Brum’s Dairy. [ 99 ] On May 15, 2013 there was a meeting with Ms. Fraser, Mr. Rosien, John, Kevin and Charlie in which she gave an update about the situation related to Donna and asked about the tax implications of the $600,000 being borrowed by the Companies. [ 100 ] Her evidence was that to have a tax-free rollover there would have to have been a separation agreement – not a domestic contract. This raised a red flag to Ms. Fraser and she wanted to ensure the transaction was structured to avoid a tax problem. [ 101 ] She said that Mr.

Rosien would do some research about the situation to see if the problem could be solved. They discussed other alternatives about how to get the financing without incurring negative tax implications. As it turned out, the solution would be for John to take the loan personally and have it guaranteed by the Companies. Ms. Fraser spoke to TD and they were satisfied that the transaction could work in that manner. [ 102 ] At the May 15, 2013 meeting they also discussed moving forward with respect to the transfer of the Companies and the estates freezes. [ 103 ] According to Ms.

Fraser, Kevin and Charlie were prepared to back the plan, including payment of the monies to Donna and continuing the business. [ 104 ] John approved of the estate freeze. He wanted to see if the school property was in fact owned by him personally or by one of the Companies. [ 105 ] On May 15, 2013 Ms. Fraser met with John to sign the documents concerning the financing. She was not sure if this was before or after the Rosien meeting on the same date. [ 106 ] On May 24, 2013, Ms.

Fraser met with John, Kevin and Charlie and was advised that the school property was owned by one of the Companies and therefore this would not be a consideration in the tax strategy moving forward. [ 107 ] On May 24, 2013, Ms. Fraser checked to see if TD could restructure the financing so that the loans would be personal to John and guaranteed by the Companies. As additional security, Kevin and Charlie were offered as guarantors. [ 108 ] She received instructions from John that he take the loan personally with the Companies being the guarantors.

She asked Kevin and Charlie if they would guarantee the debt and they agreed. [ 109 ] On May 27, 2013 Steele Campbell at TD indicated that the restructured transaction would be viable with John taking the loan and the Companies guaranteeing the loan, without Kevin and Charlie as guarantors. [ 110 ] On June 4, 2013 new loan documents were signed by John. [ 111 ] At the same time on June 4, 2013 John discussed that he wanted to move forward with the corporate restructuring so that Donna could get paid. [ 112 ] At the same meeting Ms.

Fraser and John discussed the documents that would be required for the financing. [ 113 ] At the June 4, 2013 meeting, a draft will which had been prepared by Ms. Fraser was reviewed with John. The will was a two- page document that was prepared on plain paper as opposed to will paper. [ 114 ] Ms. Fraser confirmed that the will was consistent with John’s wishes that Kevin and Charlie be made the executors and beneficiaries of his estate. Ms.

Fraser had no doubts that the will conformed to his instructions because she reviewed the draft with him on June 4, 2013 and that draft was consistent with his instructions and overall succession plan. [ 115 ] Mary Fraser’s evidence was that the will prepared, based on the April 19, 2013 instructions, was the will that she reviewed with John on June 4, 2013. John was satisfied with the June 4, 2013 draft will. [ 116 ] On June 10, 2013 Ms. Fraser learned that John had had a stroke over the weekend.

Charlie had come to her office because of Donna not authorizing anyone to receive information from the doctors or the nurses. Ms. Fraser sent a letter by fax to the Heart Institute enclosing notarized copies of the powers of attorney for personal care and for management of property, with a copy being given to Charlie to take to the hospital. [ 117 ] Once Ms. Fraser found out that John had a stroke, she testified that if there was an opportunity to have the will signed, John should have the opportunity to sign it.

Any issues that arose therefrom could be addressed in other ways. [ 118 ] As she was scheduled to be in Peterborough for approximately three days for a music recital as a piano accompanist for her children, Ms. Fraser was unable to meet with John to get the will signed. She spoke with her husband and law partner, Michael March, about getting the will signed. She wrote out two pages of instructions for him to satisfy himself that John appeared to have capacity and to provide him with an opportunity to sign the will.

[ 119 ] She said that she gave him the written instructions and he went to the Heart Institute with Laurie Campbell from the office to get it signed. She said that it was important that Mr. March needed to assure himself that John was aware of the time and place of where he was and able to recall whether he gave instructions to Ms. Fraser. [ 120 ] She provided the will in two different formats: 1) The first being where John could sign the will; and, 2) The second being where John could place an “X” if he was unable to sign the will, due to physical paralysis because of the stroke. [ 121 ] Ms.

Fraser had no further contact with John. Cross-Examination of Mary Fraser [ 122 ] On cross-examination Ms. Fraser acknowledged that she reviewed the draft will with John on June 4, 2013 in her office. She had the draft will prepared and sat with him and reviewed the terms of it with him and what it said. They shared a copy of the will at a round table. She went over it with him paragraph by paragraph. [ 123 ] Ms.

Fraser testified that she had no concerns about his competency or his abilities in relation to the estate planning, the will and the corporate reorganization. [ 124 ] She said that John understood that the purpose of the estate freeze was to reduce the amount of tax that would be paid. [ 125 ] Ms. Fraser was a shown a copy of the hospital notes, one of which is dated June 11, 2013. It appears to be written by a social worker, L.

Clement, and reads: Spoke to patient’s son, Charlie, re: goal for family meeting tomorrow morning at 7:00 a.m., son is aware that patient not capable of signing will at this time – he will advise patient’s lawyer. Support provided. [ 126 ] Ms. Fraser testified that she was not prepared to rely on the opinion of a social worker as to whether John had capacity to execute the will. She wanted to give him the opportunity to sign his will. [ 127 ] Ms. Fraser says that she was trying to satisfy herself as to whether John could meet to execute the will.

She did not ask Charlie to see if John had testamentary capacity because she felt that Charlie could not have made that determination, particularly in relation to the test for testamentary capacity. [ 128 ] She testified that John had testamentary capacity both at the time that he made the will in April 2013 and approved of it on June 4, 2013.

She felt that John should be given the opportunity to sign the will if he had capacity. [ 129 ] Her view and her understanding of the law was that if Michael March was able to satisfy himself that John was aware of having given the instructions and acknowledged that those instructions were what he wanted, and as long as John had sufficient understanding that those instructions were incorporated into the will, John was capable of executing the will. [ 130 ] Ms. Fraser was asked whether a capacity assessment was done after the will was executed.

She said that she never considered having it done because she was satisfied that John had capacity at the time that he gave instructions. Furthermore, a capacity assessment any time after execution of the will would not have served a productive purpose because the will had already been signed. [ 131 ] She also stated that she did not ask Mr. March to enquire at the hospital about whether John had capacity. Re-Examination of Mary Fraser [ 132 ] On re-examination, Ms. Fraser confirmed that she had never made any inquiries or had anyone make any inquiries on her behalf about John’s capacity.

She felt there was no time or ability to determine whether he had capacity and furthermore, she was not aware of the qualifications of the person who might provide that advice. She testified that she did not know whether the person would truly understand the test and that, under the circumstances, it would be detrimental in that the person providing the assessment would provide information based on an erroneous understanding of the test. Evidence of Donna Examination-in-Chief [ 133 ] Donna Yeas is about 66 years old and is John’s widow. They were married in 1971.

John had been married previously and had five children from his previous marriage. When John and Donna married, the children ranged in ages 4 to 9. The children lived with John and Donna and referred to Donna as their Mother. [ 134 ] Donna did administration and bookkeeping for the Companies and was on site most of the time, while John worked off site most of the time. [ 135 ] In May 2011 John became ill. Donna took him to the hospital where he was diagnosed with a mild stroke. He was kept in the

intensive care unit for three days. After his stroke he was in and out of hospital on a regular basis to deal with various matters including problems with his kidneys. [ 136 ] Donna testified that after the May 2011 stroke, John could not remember things. He had rash judgment. For example, she testified that he saw a piece of equipment called a zoom boom and called the vendor and bought it. She said the Companies did not need it and it was sent back. It cost them about $6,000 in legal fees to deal with the issue. [ 137 ] Donna testified that John’s driver’s license was taken away from him.

He had received a letter from the Ministry of Transport saying that he would not get his license back until he had completed a number of forms. She said that John did not stop driving. She nagged him constantly about his continuing to drive. He would stop for short periods of time and let someone else drive him. Then he would start driving again. [ 138 ] At one point Donna reported him to the police based on advice she received from her lawyer. John was stopped by the police. [ 139 ] In late 2011, John was examined by Dr. Thomas. After seeing John on November 10, 2011, Dr.

Thomas prepared a report dated December 1, 2011. The purpose of the referral was the assessment of cognition. Included in the report was the Doctor’s impression of John. He said: This 76 year old gentleman presents with a mild to moderate dementia and decline in overall functioning. He is highly impulsive, displaying poor judgment and moderate loss of functioning. His formal cognitive testing shows a milder level of impairment that is suggested by his overall function.

He has symptoms that suggest a depression may also be in complicating his presentation. [ 140 ] In relation to the Companies’ bank accounts, Donna said that she went to the TD Bank and produced the letter from Dr. Thomas that John’s Power of Attorney should be activated and John should no longer have signing authority. [ 141 ] Donna testified that in November or December 2011 she activated the Power of Attorney in relation to the corporate accounts only at the TD Bank in Pembroke and not John’s personal accounts.

The Court notes that this meant that John still had the right to sign on his personal accounts and that Donna would not be exercising the Power of Attorney for his personal accounts. [ 142 ] The Court finds this evidence to be very odd. The Court finds that Donna only wanting to be Power of Attorney over the corporate accounts and not John’s personal account was an indication that she was not interested in his personal finances, only the Companies’. Her actions indicate that she was far more concerned in the well-being of the Companies rather than John’s affairs.

If she was really concerned about John’s mental capacity, she should have actively become Power of Attorney on his personal accounts as well. [ 143 ] According to Donna, the bank did not change the signing authority on John’s personal account, saying that it was okay for John continue to use it. The Court has a very difficult time accepting this testimony. [ 144 ] Donna testified that she was aware of the capacity assessment by Mr. Burnstein. She said that Mr.

Sheppard wanted to go to court to say that John did not have capacity to change his Powers of Attorney from Donna to Kevin and Charlie. [ 145 ] Donna testified said that the matter went to court, but did not say when. She said that it was postponed so many times that the Court system just dropped it. The Court finds this testimony difficult to believe, particularly in light of the fact that the parties signed a consent and obtained an Order dismissing the Application. The Court does not accept her evidence on that point. [ 146 ] At some point in time, Mr. Sheppard spoke with Ms.

Fraser about buying Donna out of the Companies and negotiations started with a settlement eventually being reached. The settlement was embodied in the domestic contract signed by her on January 31, 2013. [ 147 ] On June 8, 2013, John had not been feeling well and Donna wanted to take him to the hospital. She called an ambulance which took him to the Pembroke Hospital. He was then transferred by air ambulance to the Ottawa Heart Institute. [ 148 ] On June 9, 2013, Donna went to the hospital with Dan and his wife around 1:00 a.m.

The four other children arrived around 1:30 a.m. [ 149 ] She testified that she saw John that night and that he was not coherent. She did not talk to him. She said the nurse told the other children they could not see John because he was too ill. She said that she did not forbid the other children from seeing John. [ 150 ] Donna left the Heart Institute at about 3:00 a.m. on June 9, 2017. She got home around 5:00 a.m. and returned to the Heart Institute at about 1:00 p.m. on the same day. She said that John was too sick and that no one could visit him so they went home.

At 8:00 p.m. the doctor said that John had had a severe stroke and that he was paralyzed on the left side and that she should come back. She came back around 11:00 p.m. on June 9, 2013. She stayed at the hospital overnight and left on the Monday morning, June 10, 2013 around 8:00 a.m. She saw John before she left the hospital. She said that John did not know that she was there. There was a nurse in the room at all times because John was in the ICU. [ 151 ] A family meeting was held on June 12, 2013 at 7:00 am with the doctor, the social worker, nurses, Donna, Dan, Kevin and Charlie.

The doctor said that John was very ill and he was not sure if he would live. The doctor wanted to know if there were any special instructions concerning resuscitation and funeral arrangements. Donna advised the doctor that there would be no resuscitation. The Court notes that Donna was not the Power of Attorney at the time and had no authority to provide those instructions. That was the responsibility of Kevin and Charlie as his Powers of Attorney. [ 152 ] She states that she did not see John that morning and did not see him until the Friday, June 14, 2013, when she said that John could not talk much.

The Court notes that this differs from her previous testimony, where she said that John was not able to speak at all.

[ 153 ] Donna testified that she was not sure if John recognized her. She assumed that he knew who she was. He never addressed her by name. The Court finds that not addressing a person by name does not have any bearing on whether someone knows who someone is. She said that he had no sensible conversation with her.

The Court notes that if a person is medicated and weak, they may not necessarily be able to have a conversation with someone. [ 154 ] She said that when they did communicate she could not make sense of what he was saying. [ 155 ] According to Donna there was an incident where she went to see John at some point in time and he told her that he had been walking the halls. The nurse said that was not true because he could not stand up.

Another time, he told Donna that he had taken her to the Timberline Snow Mobile Club in Pembroke at a time when he was in the hospital, which never happened. [ 156 ] No evidence or context were given as to when these incidents occurred. The Court notes that John was in hospital from June 8, 2013 until he passed away on August 8, 2013. Cross-Examination of Donna [ 157 ] Donna testified that after June 8, 2013 when John went into the Heart Institute he was not capable of making decisions for himself. No evidence was provided to support this assertion.

The Court finds that this was only Donna’s opinion as a lay person. [ 158 ] She acknowledged that she had no discussion with John about a do-not-resuscitate order and that she did not advise the Heart Institute of who the Powers of Attorney were. [ 159 ] Donna was surprised to find out that an assessment had been done at the Heart Institute on June 10, 2013 and that John was found to be competent to make decisions. She said she was there on June 10, 2013 and that he was not conscious and didn’t recognize her.

She left on June 10 at 8:30 a.m. [ 160 ] The Court notes that Donna did not see John from June 10 at 8:30 a.m. until June 14, 2013. [ 161 ] A hospital record was made on June 13, 2013 stating that John was confused but he was competent to make decisions. This was the same date that he signed the new will. The note also indicated that John told staff that Charlie was his Power of Attorney, which the Heart Institute needed to be clarified.

Evidence of Donald Rosien [ 162 ] Donald Rosien, a Chartered Accountant for over 30 years, practices in Pembroke, Ontario and was the accountant for the Companies. [ 163 ] His evidence is that between May and June of 2013 on at least one or two occasions, he met with John, Charlie, Kevin and Mary Fraser with respect to restructuring the Companies. They also discussed a domestic contract between John and Donna as well as John’s interest in transferring control of the Companies to Kevin and Charlie. [ 164 ] Mr.

Rosien received instructions about the restructuring of the Companies and was told that the common shares would go to Kevin and Charlie by way of an estate freeze. [ 165 ] Mr. Rosien testified that he had no concerns in relation to John’s competency. He said that there was no indication that John did not understand what was being discussed. He did say that John had been very vocal at the meetings. [ 166 ] On cross-examination, when asked about why John was so vocal, Mr.

Rosien testified that he was vocal about the matrimonial settlement and was not happy with it, because of the amount being paid as well as the amount of tax to be paid. Once John was advised that the transaction could be structured in another format to reduce the amount of tax payable, he was more comfortable with the transaction. [ 167 ] On cross-examination, Mr. Rosien testified that John wanted Kevin and Charlie to run the Companies and take over his shares.

Evidence of Michael March Examination-in-Chief [ 168 ] At the time of John’s death, Michael March was a practicing member of the bar and had a partnership with his father-in-law, Jim Fraser, and Mary Fraser. He had been called to the bar in 1992 and moved to Pembroke in or about 1995. For the first three years of his practice he did exclusively civil litigation. Thereafter his primary practice was criminal defence work. He was appointed a judge of the Ontario Court of Justice on August 30, 2016. Prior to that, he had been a member of the bar for almost 24 years. [ 169 ] Mr.

March testified that he may have acted for John related to a charge of driving a vehicle while suspended. He did not remember if he had met him at a 10 to 15 minute meet-and-greet conversation or if it was a formal meeting. He testified that when he was at the hospital he recognized John from his meetings in the office. [ 170 ] He testified that the situation to get John’s will signed had become urgent because John had a stroke and Ms.

Fraser would not attend to the Heart Institute to have the will signed because she and their two children were going to a provincial music final in Peterborough, Ontario where she was their piano accompanist. [ 171 ] He testified that Ms. Fraser gave him written instructions to have the will signed and that he may also have received some oral

instructions from her. [ 172 ] Mr. March was not sure what day of the week that he went to the hospital. He said he probably went back to his office after court and spoke to his wife personally or over the phone. [ 173 ] Mr. March’s evidence is that he picked up Laurie Campbell, a longtime staff member, in Renfrew to go to the Heart Institute to witness the will. When they got there he found out which room John was in and went to the floor. It was Charlie who recognized and greeted him. Charlie guided Mr. March into the room where John was receiving treatment. Charlie introduced John to Mr. March.

In the room a nurse was administering treatment to John. John had an oxygen mask on. Mr. March asked the nurse if John was well enough to speak with him and she said, “Yes”. [ 174 ] Mr. March asked Charlie to leave the room while he spoke with John. According to Mr. March, it appeared as if there were approximately 6 to 8 family members in the waiting room. [ 175 ] He told John that he had his last will and testament in hand and wanted to review it with him. John was content with that. [ 176 ] Mr. March reviewed each of the provisions of the will with John. [ 177 ] In the instructions provided by Ms.

Fraser it said, “Time and Place”. Mr. March asked John if he knew where he was. He said that he was at the Heart Institute. Mr. March asked John what date it was, and John said it was June 11, 2013. It was actually June 13, 2013. Mr. March said that John was able to say the word “2013”. Mr. March testified that the day of the month was the only thing about which John did not give the proper information, but otherwise he understood everything else. [ 178 ] Since he had an oxygen mask on, John had to take it off and put it on between questions and responses, including the response of June 11, 2013.

When asked a question by Mr. March, John took off his own hospital mask and answered the question in an intelligent fashion. At one question asked by Mr. March, John nodded his head to indicate yes. [ 179 ] Mr. March said that when explaining the will to John he paraphrased the clauses as to what they meant because they were in legalese. He told John that any previous wills were no longer valid. He drew John’s attention to the fact that Kevin and Charlie were to be the executors and the beneficiaries. Mr.

March said that John understood that Kevin and Charlie would be the executors and the beneficiaries. [ 180 ] Mr. March also said that John confirmed that he wanted the will to be that way and that he was very definite on this point. [ 181 ] Mr. March said that he looked John in the eye and confirmed that this was what he wanted. Mr. March said that John both said, “Yes” and nodded his head. He asked the question, “Are you content with the will as such?” and the answer was “Yes”. [ 182 ] Mr. March testified that even though John was ill, he was still able to sign the will.

The will was either signed on the patient table or Mr. March held it up while it was signed. John initialed the first page of the will and signed the second page. [ 183 ] Ms. Fraser asked Mr. March to confirm with John that he still wanted to proceed with the financing of the Companies in the manner arranged by Mary Fraser. Mr. March said that John confirmed this and also knew who Mary Fraser was. [ 184 ] After the meeting there was minimal conversation with family members, except to say goodbye and leave. No family members approached Mr. March after the will was signed. Mr.

March testified that they were with John for approximately 20 to 30 minutes. [ 185 ] After getting the will signed and witnessed, he and Ms. Campbell left the hospital and he dropped Ms. Campbell off back to her home in Renfrew. Mr. March made notes that day of his visit. Cross-Examination of Michael March [ 186 ] Mr. March acknowledged that this was the only deathbed will that he had ever witnessed. He said that he was dependent on Ms. Fraser for instructions on how to properly have the will executed.

He said his wife’s instructions were specific and he followed those instructions and did not deviate from them. [ 187 ] Mr. March was asked why, since there was a nurse in the room, he did not ask the nurse if it was okay have the will signed. Mr. March said that it was a privacy issue. [ 188 ] According to Mr. March, most of John’s answers made sense.

He did not ask questions which required long answers because he said John was in distress and had an oxygen mask on and he wanted to keep the answers to a minimum and avoid discomfort. [ 189 ] Michael March confirmed that John never questioned any paragraph of the will. The Court notes, however, that John had already reviewed it with Mary Fraser on June 4, 2013. Evidence of Dan [ 190 ] Dan Yeas is 58 years of age. He is the fourth child of John Yeas and has a Grade 9 education. He started to work for the Companies at the age of 16 when he quit school around 1981, with Kevin, Charlie and John.

Dan left the business in November 2001 because he wanted to further his career in management. He obtained a job at Tomlinson Services as a waste services coordinator. He did not advise John that he had applied for the job until after he got it. According to Dan he did not speak to his father after he left in November 2001 until May 2002. After May 2002, Dan said that it was just like the “good old days”. He and John would talk, go for coffee, and get together for celebrations and holidays.

[ 191 ] When he worked for Tomlinson, Dan would come to the Companies’ yard and visit on days when he was not working. He also said that he worked at the Companies on Saturdays. The Court notes that there was no evidence as to whether he got paid any monies from the Companies during the time he was working for Tomlinson. [ 192 ] After he left Tomlinson, Dan went with his son to work in Fort McMurray operating heavy equipment for Ledcor, commencing May 2012 until April 2013, when he was laid off. He had shifts of 20 days on, 10 days off, and 20 nights on, 10 nights off, etc.

When he was not working he would return to the Pembroke area where he lived with his wife. [ 193 ] In May 2011, John had a stroke. Dan said that he began noticing changes in John and that there was something different about him. He described several incidents where John was acting strangely. For example, one morning John said that he had bought a radiation detector which would detect radiation in metals brought into the scrap yard. John said that he had used it and found one person bringing in radioactive material into the yard.

When Dan went to the yard he found that the machine had not been hooked up, which led him to question how his father could say that he had found a person with radioactive material in the yard. [ 194 ] In a second incident his father said that he had bought a 100 tonne float to transport a number of transformers that he purchased west of Toronto and that he was going to have to move them. Dan said that his father never bought the float. [ 195 ] In May 2013 after Dan was laid off and returned to Pembroke, he began visiting the yard.

In May or June 2013 John asked Dan if he wanted a place to work because things needed to be done at the yard. He agreed and was there from April 2013 to October 2013. His job was to get materials out of the yard. He testified that his compensation was $16 to $17 an hour. [ 196 ] In June 2013, he and John had a conversation at a reception hosted by a company called Valley Spring at which John said that he should be paid $25 an hour instead of whatever he was getting.

John told Dan to tell the person in the office to adjust his salary to $25 an hour. [ 197 ] Dan said his father increased his salary because he appreciated the work he was doing. No information was provided as to why the change in salary was relevant. [ 198 ] On Saturday, June 8, 2013, at 8:00 p.m. Dan received a phone call from Donna who said that John had had a stroke and was being airlifted to the Heart Institute. Donna asked him to take her to the Heart Institute and they arrived at the Heart Institute around midnight. [ 199 ] Other siblings arrived. Dan said that he did not see John that night.

He testified that the doctor may have said that no one could see John that night, but he said that no one else ever told him that he could not see John. [ 200 ] The only person able to see John that night was Donna. Apparently the hospital did not want visitors until John was stable. [ 201 ] Dan, his wife and Donna came home early Sunday morning and went back to the Heart Institute that afternoon.

Dan was not sure if he saw John that afternoon. [ 202 ] Dan says that he does not remember John talking to him whenever they did meet because of the amount of medication that John was on. [ 203 ] They returned home later that afternoon and then Donna received a call that John had had a major stroke on the Sunday night, June 9, 2013. [ 204 ] Dan went back to the Heart Institute with Donna and they stayed overnight on Monday. John was stable.

They returned home because John was heavily medicated. [ 205 ] The next time that he went back to the hospital was on the Wednesday morning, June 12, 2013 at 7:00 a.m. for a family meeting with the doctor. [ 206 ] On the Wednesday evening, June 12, 2013 he went to visit after supper. At this point in time John was sitting in a wheelchair. According to Dan, his father was mumbling and was not making sense. [ 207 ] The next time he saw John was either Saturday night, June 15, 2013 or Sunday afternoon, June 16, 2013. At that time John pointed to a picture on the wall and asked why the writing was in Chinese.

This made no sense to Dan because there was no Chinese writing on the picture. [ 208 ] At another time, Dan showed John a picture of an excavator which cost about $200,000, which was his pride and joy, but John did not recognize it. [ 209 ] According to Dan he never had a conversation with his father that was lucid for the whole time. In addition, John never said Dan’s name. Evidence of Brenda Lee Sperberg Examination-in-Chief [ 210 ] Brenda is a respondent in this matter and she acts on her own behalf. She is 55 years old and is the eldest daughter of John.

She is married and has worked at the Companies from 2005 to the present. From 2005 to 2012 she was the office administrative assistant. In

2013 she became the office manager. [ 211 ] She testified that from 2005 onwards, John was involved in the Companies on a daily basis, working with the people, making decisions and running the Companies.

He continued to work there regularly until June 2013 when he had a stroke. [ 212 ] Brenda described the relationship between John and Donna in 2005 as “husband and wife working together - it was a love/hate relationship.” In late 2011 things began falling apart with their relationship and the office environment became more hostile. [ 213 ] She said it was no secret that John was upset that Donna was trying to get control of the Companies. They had words in the office, no matter who was there.

She overheard a discussion between Donna and John that he was very disappointed and upset that he could not have information concerning the Companies and that he wanted to regain control of them. [ 214 ] When questioned about John’s mental capacity, Brenda testified that she had no concerns about it. He was purchasing items then reselling them, operating equipment and was involved in the day-to-day operations of the business throughout. [ 215 ] She testified that she did not notice any strange behavior by John. She described her relationship with her father as “loving”.

She said she was honoured to work for her father. [ 216 ] She testified that after John and Donna began having marital issues, the Companies were going to have to take on new financial obligations. She provided John with financial information for him to provide to the TD bank. [ 217 ] She described the relationship between John, Kevin and Charlie as a good working relationship. [ 218 ] Brenda testified that after John was served with the Application from Donna, John was devastated. He asked Brenda to help him with the litigation.

John said that he could not comprehend that Donna would sue him after being married for 40 years. [ 219 ] Brenda testified that she was only aware of a new will after it had been signed and had no knowledge of it before it was signed. She understood that the entire estate was left to Kevin and Charlie. [ 220 ] She testified that she respected her father and his wishes and that she received what she needed from him in life and she respected that everything was left to Kevin and Charlie.

She acknowledged that John did not care for her spouse or Karen’s partner and that Donna had been taken care of in the domestic contract. [ 221 ] She testified that John acknowledged that Dan had been taken care of. [ 222 ] When her father was hospitalized in June 2013 she saw him every two to three days, both in Ottawa and in Pembroke. [ 223 ] She stated that she had minimal conversations with her father while in the hospital because he was not very healthy.

She said that he knew who she was and they talked about the machinery and equipment. [ 224 ] She testified that he knew her name and that he called her by her name on various occasions, including calling her by her nickname “Cookie”. [ 225 ] Brenda testified that she had no issue with her father’s mental capacity while he was in the hospital and while he was instructing hospital staff. Cross-Examination of Brenda Lee Sperberg [ 226 ] On cross-examination, Brenda said that her father called her by her name before June 13 and that after June 13 he called her by “Cookie”.

After June 13, she and her father spoke about projects that they had worked on in the past. [ 227 ] On cross-examination she was emphatic and said that she was never concerned about his mental capacity before he signed the will. She felt that he was fully capable. Evidence of Karen Lavigne [ 228 ] Karen Lavigne is John’s youngest child.

She had previously submitted her rights to the Court pursuant to Rule 75.07.1 of the Rules of Civil Procedure , meaning that she is not a party to the proceedings and that she is not entitled to and cannot be liable for costs of the proceedings. [ 229 ] Karen Lavigne was served with a summons to witness by Dan’s counsel to appear at the trial as she was not prepared to testify voluntarily in this matter. According to her, she expressed her concerns about being a witness in this proceeding in April 2017. [ 230 ] Her evidence is that she was at the Ottawa Hospital on June 13, 2013.

When she walked onto the floor near her father’s room, she said that Mr. March was in the room with someone else. Karen testified that she did not know Mr. March prior to June 13, 2013. Mr. March and Ms. Campbell passed her in the waiting room as they were leaving. [ 231 ] After Mr. March left, she went into the room. According to the evidence, her father asked her who was contesting the will. She said, “No one”, to which John asked “Why do the lawyers want me to sign?” [ 232 ] A couple days after June 13, 2013, she was told by Kevin and Charlie that the people were in the room with her father were Mr.

March and Ms. Campbell. [ 233 ] On cross-examination it was brought out that Karen was involved in a motor vehicle accident in August 2015 and that she is suffering from short-term memory problems. She indicated that she had at least one conversation with Kevin and Charlie in which she

mentioned that she had short-term memory problems. [ 234 ] In addition, she indicated that she did not remember the date when she met with Kevin and Charlie at the business office. [ 235 ] Her evidence is that she did not report the conversation that she had with John to Charlie and that they did not discuss it when they were going home together after that hospital visit on June 13, 2013. Evidence of Dr. Gow [ 236 ] Dr. Catherine Gow, a neurologist in private practice from 1999 to present, testified on behalf of Dan Yeas. She was qualified as an expert in neuropsychology.

Her mandate was to review John’s medical records for the purpose of determining his testamentary capacity. Her evidence was based on the overall available information documenting John’s cognitive status following the June 8, 2013 stroke and leading up to the meeting in the late evening on June 13, 2013. [ 237 ] In her report, Dr. Gow at p. 18 describes John’s condition as follows: At 7:30 PM on June 12, 2013, Mr. Yeas’ family left for the night and Mr. Yeas remained upright by his bedside in a wheelchair. At 8:20 PM, he returned to bed and an orderly applied to gauze to his ears due to pain from the oxygen tubes.

An exaggerated response to any stimulus was reported. At 10 PM, he was found with his “KF tube” (delivering medication) pulled out; speech was confused, and he was agitated about being in “this room”. Mr. Yeas was described as very confused and hallucinating about people in his room. Similarly, he appeared to be experiencing ongoing disorientation on the morning of June 13, when Mr. Yeas reported sleeping poorly due to “noise upstairs”. Mr. Yeas was oriented to date but said it was January; he was not oriented to place and “person” (the nurse examining him) and could not remember why he was in the hospital.

Further, he could not name all of his children. At 10:15 that morning, the dietician found Mr. Yeas to be “quite drowsy” that morning after being given medications overnight due to increased agitation. CCU notes from 12:50 PM reported that Mr. Yeas remained confused; he could answer short questions but was not comprehending instructions and became agitated at night. An acute dose of haloperidol was administered and daily administration of Seroquel 12.5 mg was initiated. At 5:30 PM on June 13, 2013, reportedly in the timeframe Mr.

March arrived to review the Will, a Confusion Assessment Method (CAM) was performed by a nurse in response to Mr. Yeas having pulled out his KF tube the night before. The assessment documented an abrupt onset of mental status changes including post-CVA episodes of paranoia the night before. Inattention was reported in the form of falling into a deep sleep during interactions unless constantly aroused. Altered level of consciousness was uncertain but somnolence was reported. Psychomotor changes, memory impairment, and altered sleep-wake cycles were documented. The family left at 8:45 PM.

At 3:30 AM, he was found with decreased oxygen saturation and he refused to wear an oxygen mask. Mr. Yeas had been noted to repeatedly push off the oxygen mask. Mr. Yeas was extremely restless and complained of pain in his lower back. Analgesics were administered and he re-settled. On June 14, he was oriented to month and day. A progress note described Mr. Yeas as “quite somnolent [sic], easily arousable, and following simple instruction.” [ 238 ] In Dr.

Gow’s opinion, it is questionable that John would have been able to attend sufficiently to process legal information of the length and complexity described by Mr. March when the will was signed. [ 239 ] In her report dated April 14, 2017 at p. 21, she states: Likewise, evidence points to ongoing registration difficulties impacting Mr. Yeas’ ability to consistently recall the nature and gravity of his own illness and reliably recall familiar people in his environment. It was simply not demonstrated in the June 13 meeting that Mr.

Yeas had awareness of the nature and the extent of his property and who stood to benefit and who might be excluded or the impact of these decisions, though this might have been established by having him summarize each paragraph in his own words. Indeed, given how obviously critically ill Mr. Yeas was post-stroke and, the high likelihood that his condition was associated with some degree of cognitive decline, the probability is high that if this procedure had been used, rather than a yes/no question format, Mr. Yeas’ true level of understanding and ability to appreciate would have been demonstrated.

In the absence of that information, on a balance of probabilities, Mr. Yeas was not capable of understanding and appreciating the decisions he was making with respect to the will on June 13, 2013. [ 240 ] For those reasons Dr. Gow testified that John did not have the testamentary capacity to enter into the will. Law of Testamentary Capacity

a) General [241] The law in relation to testamentary capacity is discussed in the case of Re Tarling Estate (2008), (ON SC),43 E.T.R. (3d) 177 (Ont. S.C.). In that case, Herman J. at paragraphs 53 and 54 states as follows: [53] The general principle relating to the validity of wills is the principle of freedom of testamentary disposition.Unless children are dependents, a parent is entitled to do as he or she wishes, regardless of how wrong or unfair it may seem.

This issubject to two exceptions: the testator did not have the requisite testamentary capacity; or the testator was subject to undue influence. [54] A testator must have a "sound disposing mind" to make a valid will.

This means that he or she must understandthe nature and effect of a will; recollect the nature and extent of his or her property; understand the extent of what he or she is givingunder the will; remember the persons that he or she might be expected to benefit under his or her will; and understand the nature ofclaims that may be made by persons he or she is excluding from the will. [Footnotes omitted.] [242] In the case of Royal Trust Corporation of Canada v. Saunders, (Ont. S.C.), Blishen J. dealt with the issue oftestamentary capacity.

At paragraphs 57-60 she states: [57] …In Ontario, unless the children are dependents, a capable parent, acting voluntarily, is entitled to dispose of hisestate as he sees fit, even if he does disinherit his children. He can do this, however mean and ungrateful it seems or how selfish themotive. Therefore, the focus in this case, as in so many others, is on testamentary capacity. Testamentary Capacity [58] To have testamentary capacity, the testator must be of sound mind, memory and understanding or, to put it anotherway, he/she must have a sound and disposing mind.

The elements of a sound and disposing mind are, that on his/her own initiative andvolition, the testator: 1. understands the nature and effect of a will; 2. recollects the nature and extent of his or her property; 3. understands the extent of what he or she is giving under the will; 4. remembers the people he or she might be expected to benefit under his or her will; and, 5. understands the nature of the claims that may be made by persons he or she is excluding under the will. [59] Although there is a high standard of mental capacity, eccentric, unfair or capricious wills do not necessarily indicate a lack of mental capacity.

James MacKenzie in “Feeney’s Canadian Law of Wills”, 4th ed. (Toronto: Butterworths, 2000) at2.3.2 puts it this way: 2.7 While the standard of mental capacity required by the law for wills is high, it is not so high as to exclude eccentric or inefficaciouswills. One Ontario judge has said that a lack of capacity must amount to something more than entertaining “wrong-headed notions” andthat one may be “eccentric and do absurd things and be a person with whom it is impossible to live”, but still be capable of making awill.

A will-maker may be capricious or unfair in making dispositions but that does not of itself amount to lack of capacity. A goodexample of an eccentric will is to be found in the Ontario case of Re Millar which, though eccentric in the extreme, was not evencontested on the grounds of mental incapacity. Furthermore, a person may still be able to make a good will after having been declaredincapable of managing his or her affairs. … [60] In Re Weidenberger Estate, 2002 ABQB 861 , [2002] A.J.

No. 1157 (A.B.) at 17, the court stated: The fact that the Deceased was mentally ill and suffered from confusion is not determinative as to whether the Deceased did or did nothave the requisite testamentary capacity. Cognitive impairment or confusion alone is not grounds for declaring a person incapable ofmaking a will. [Footnotes omitted.] [243] The matter was dealt with by the Supreme Court of Canada in the case of Vout v. Hay, (SCC), [1995] 2 S.C.R.876. Paragraph 26 reads, in part, as follows:

[26] …Upon proof that the will was duly executed with the requisite formalities, after having been read over to or by atestator who appeared to understand it, it will generally be presumed that the testator knew and approved of the contents and had thenecessary testamentary capacity. [244] In the book Capacity and Undue Influence by John E.S. Poyser (Toronto: Carswell, 2014), the author deals with the issuetestamentary capacity and timing, and at page 90 says as follows: As a general rule, a person making a will must have the requisite testamentary capacity on the date the will is signed.

Anexception is available and the general rule does not apply where the will is prepared and signed as part of a two-stage process, with thewill-maker giving instructions to a lawyer for a preparation of a will on Day 1 and then, at a later date or time, signing a will prepared toaccurately give effect to those instructions. Where that occurs, the test for capacity is relaxed on the date of execution, and the will-maker does not have to possess full testamentary capacity at that time.

Instead, the will-maker need only to have capacity to understandthat he or she is signing a will, and that the will being signed gives effect to the instructions communicated earlier. Provided thatvestigial thread of capacity remains, if full testamentary capacity had been present earlier, it will not defeat the will even though the will-maker’s capacity has diminished to the point where he or she can no longer understand the terms of the will, or no longer has the powersof mind to understand the instructions that he or she gave earlier, or has lost the capacity to reformulate those instructions.

Authoritiessupport the conclusion that the loss of capacity can be fairly profound, and includes examples of will-makers who have successfullyexecuted wills while clearly lacking testamentary capacity and barely able to keep conscious. This exception generally comes into playwhen a lawyer is involved but is not limited to that scenario.

What is required is a crystalized statement of the will-maker’s finaltestamentary intent when the will-maker has testamentary capacity followed by accurate reproduction of that intent in the form of a willsigned later. [245] The author states that this exception is commonly ascribed to and was cited in the case of Parker v. Felgate (1883), 8 P.D. 171(Eng. P.D.A.). The author says that this law has been cited with approval and consistently applied in Canada. [246] He cites the case of Faulkner v. Faulkner (1920), (SCC), 60 S.C.R. 386, in which five members of the SupremeCourt cited Parker v. Felgate with approval.

b) Suspicious Circumstances [247] The persons propounding the will, in this case, Kevin and Charlie, have the legal burden of proof with respect to the execution,knowledge, approval and testamentary capacity. As noted above in Vout v. Hay, upon proving that the will was duly executed and that itwas read to or by the testator who appeared to understand it, it will generally be presumed that the testator knew and approved of thecontents of the will and had the necessary testamentary capacity. At that point, the evidentiary burden shifts to the person attacking thewill, in this case, to Dan.

The evidentiary burden can be satisfied by introducing evidence of suspicious circumstances which wouldnegative knowledge and approval or testamentary capacity. In that case, the burden would shift again, this time to the propounders of thewill, being Kevin and Charlie (Scott v.

Cousins, [2001] O.T.C. 9 (S.C.), at para. 39). [248] When considering whether or not there are suspicious circumstances, the Court may consider: 1) The extent of physical and mental impairment of the testator around the time of the will was signed; 2) Whether the will in question constituted a significant change from the formal will; 3) Whether the will in question generally seems to make testamentary sense; 4) The factual circumstances surrounding the execution of the will; 5) Whether a beneficiary was instrumental in the preparation of the will. See Brian A.

Schnurr, Estate Litigation, loose-leaf, 2nd ed. (Toronto: Carswell, 1994) (2016, revision 8), ch. 2.1(c).

c) Delusions [249] In James MacKenzie’s Feeney’s Canadian Law of Wills, loose-leaf, 4th ed. (Toronto: Butterworths, 2000), at 2.9 the concept ofdelusion is discussed: …A perfectly capable business official may suffer from delusions that render her incapable of making a valid will, but aperson may suffer from a delusion or delusions and nevertheless be capable of making a will.

Irrational beliefs, falling short ofproducing general insanity, and which have no relation either to the testator’s property or to the persons that might be expected to benefit,can have no bearing on the question of testamentary capacity. [250] Therefore, in order to affect testamentary capacity, the delusion must: 1) be one of “insanity”; or 2) be in relation to the testator’s property or expected beneficiaries.

[251] In Banton v. Banton (1998), (ON SC), 164 D.L.R. (4th) 176 (Ont. Gen. Div.), Cullity J. comments on theconcept of “insane delusions” as follows: [32] …The reported decisions contain many attempts at definition of which the following have often been cited with approval: A delusion is insanity where one persistently believes supposed facts (which have no real existence except in his perverted imagination)against all evidence and probability and conducts himself however logically upon the assumption of their existence. [Am. & Eng. Cycl.,Vol. 9, p. 195, cited by Sedgewick J. in Skinner v.

Farquharson (1902), (SCC), 32 S.C.R. 58 at p. 26.] … insane delusions are of two kinds; the belief in things impossible; the belief in things possible, but so improbable, under thesurrounding circumstances, that no man of sound mind would give them credit; to which we may add, the carrying to an insane extentimpressions not in their nature irrational. [Prinsep v. Dyce Sombre (1856), 10 Moo.

P.C. 232, at p. 247] [252] Feeney’s, supra, at 2.11, says that if an aversion to the expected beneficiaries can be explained or it is found that the testatorwas feigning some belief in order to rationalize his failure to provide for his family, then there is no delusion. [253] In Wilson v. Mack Estate, [1998] O.J. No. 3733 (Gen. Div.), Sanderson J. states at paragraph 197: It is essential to a finding of testamentary capacity that no delusion has influenced the testatrix’s will in disposing of herproperty or has brought about a disposal that would not have been made absent the delusion.

For a delusion to affect testamentarycapacity it must so take over a testatrix’s mind that it governs the making of her will. [254] In the case of Schwartz v. Schwartz, (ON CA), [1970] 2 O.R. 61 (C.A.), aff’d (1971), (SCC),[1972] S.C.R. 150, one of the three sons was left out of a will, but the disinheritance was easily explained by the testator’s displeasurewith that son for engaging in business disputes with his brother. The new will was upheld. [255] In the case of Ward Estate (Re), [1993] O.J. No. 1918 (Gen. Div.), the Court decided that anger towards someone is also notequivalent to incapacitating delusions.

Positions of the Parties 1) Position of Kevin and Charlie [256] Kevin and Charlie argue that: 1) They are the propounders of the will and have the legal burden of proof with respect to execution, knowledge, approval andtestamentary capacity. 2) They have met this burden through the evidence of Mary Fraser, Michael March and Brenda Lee Sperberg and that the burdennow shifts to Dan to show that there were suspicious circumstances under which the will was signed. 3) Dan withdrew his claim of undue influence and/or fraud at trial. 4) Dan has shown no issues of suspicious circumstances and that the will of June 13, 2013 should not be probated. [257] They rely on the evidence of Mary Fraser and that she had 18 to 19 meetings in which John: 1) revoked his power of attorney to Donna and created two new powers of attorney for personal care and property to Kevin andCharlie; 2) negotiated and signed a domestic contract; 3) obtained the financing to pay for the monies owing on the domestic contract; 4) provided instructions for restructuring the Companies; 5) provided clear instructions for his new will; and, 6) reviewed the draft will with Mary Fraser on June 4, 2013. [258] They argue that Mary Fraser’s evidence was

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