2021 QCCA 828, 2021 QCCA 828

Crispino c. Crispino 2021 QCCA 828 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-028753-192 (500-17-093084-161) DATE: May 12, 2021 CORAM: THE HONOURABLE MARK SCHRAGER, J.A. STÉPHANE SANSFAÇON, J.A. CHRISTINE BAUDOUIN, J.A. CLELIA CRISPINO ADA CRISPINO APPELLANTS – Defendants v.

CLAUDIO CRISPINO RESPONDENT – Plaintiff JUDGMENT [ 1 ] This is an appeal from a judgment rendered on November 26, 2019 by the Superior Court, District of Montreal (the Honourable Madam Justice Karen Kear-Jodoin), that grants Respondent Claudio Crispino’s action seeking to annul the probated will of his late mother Lucia Crispino and to declare it null. The judge held that the will failed to comply with the essential requirements of

article 727 C.C.Q ., that Lucia Crispino did not have testamentary capacity at the time of its signature and that undue influence was exerted on her by her daughters, Appellants Ada and Clelia Crispino, which vitiated her consent. [ 2 ] On December 3, 2013, within approximately two hours of her admission to the hospital for a broken hip, 88-year-old Lucia Crispino, while lying on a gurney in the emergency room, initialed a handwritten document drafted by Appellant Clelia Crispino.

Two witnesses and a lawyer called in for the occasion were present with Ada Crispino. [ 3 ] The content of this document departed from all the notarial wills previously made by Lucia Crispino, as it bequeathed her immovable properties, namely the Mozart and the Champdoré properties, to her three children Claudio, Ada and Clelia in equal shares, thus replacing the former bequest of the Mozart building to Claudio or his children. [ 4 ] The events that lead to the signing of the December 3, 2013 will are described in the judgment as follows: [17] The following is not disputed.

Lucia was admitted on October 30 th , 2013, to the hospital for the treatment of a very serious infection. She was only released on November 23 rd , 2013. Upon release from the hospital, it was evident to the family that Lucia could no longer live independently and on her own. She was unable to walk without the assistance of a walker. [18] It was initially intended that Lucia would reside in an apartment to be renovated at Claudio’s building where he and his family also lived.

However, by the time Lucia was released from the hospital on November 23 rd 2013, Claudio had not yet finished the renovations to her apartment. Arrangements were then made that Lucia would stay in a spare bedroom at Claudio’s home. A CLSC worker attended Claudio’s residence daily to provide the healthcare and medication that Lucia required. In addition to the foregoing, the parties also retained the services of a caregiver. [19] On November 20 th , 2013, Clelia arrived in Montreal to provide emotional support for her sister Ada who was in mourning having recently lost her husband.

Clelia stayed with her sister in Laval for several days. Thereafter, she stayed at Claudio’s home until her return to Italy on December 4 th , 2013. During her stay at Claudio’s, Clelia slept with her Lucia in her bed. [20] On December 3 rd , 2013, Clelia asked Ada to come to Claudio’s residence for a family meeting allegedly at the request of Lucia. When she arrived to Claudio’s home she was informed by Clelia that the purpose of the meeting was because Lucia allegedly wished to prepare a new Will.

[21] At approximately 3 PM, Lucia sat at the kitchen table with Angela. Clelia and Ada were in the kitchen and insisted that Claudio participate in the family meeting. However, Claudio wanted no part of the discussion. He immediately went to the basement. [22] No sooner had Claudio reached the bottom of the stairs, he heard screaming in the kitchen. Ada and Clelia explain that when Lucia attempted to get up from the kitchen table, she reached out for her walker and fell. She broke her hip. An ambulance was called and Clelia accompanied her mother, in the ambulance, to Santa Cabrini Hospital.

Ada followed in her car. Lucia was admitted at 4:53 pm. Ada arrived moments thereafter. [23] Within two hours of Lucia’s arrival to the hospital, the alleged Will was written by Clelia, initialed by Lucia in the presence of two witnesses and in the presence of an attorney, namely Me Bruce Taub. Claudio was not at the hospital because he remained at home. No one contacted Claudio to tell him that Lucia was about to sign a new Will nor that she had, in fact, signed a purported Will. [24] In 2014, Ada informed Claudio as to the alleged Will.

The evidence is unclear if, at that time, he was informed as to the content of the document. [25] On December 4 th , 2013, Claudio visited his mother. She was weak. She made no mention of the document that she had signed the previous day. [26] On December 9 th , 2013, Lucia suffered a stroke. Thereafter, she was unable to speak.

She remained hospitalized at Santa Cabrini Hospital until her death on February 4 th , 2015, at age 90. [27] Shortly after Lucia’s death, Ada met with Claudio and they divided equally among themselves the balance of the Lucia’s bank account in the approximate amount of $106,000. [References omitted] [ 5 ] Several lay witnesses and two expert witnesses were heard during the seven-day trial. [ 6 ] The Appellants question the judge’s consideration of the proof, namely, the inferences drawn from it.

They summarize each witness’ testimony in their brief and highlight certain aspects so as to invite this Court to conclude that the judge’s conclusions are based on suspicions instead of precise and concordant facts. [ 7 ] While they do not challenge the legal standards the judge applied, they argue that it could not reasonably be drawn or inferred from the evidence that Lucia Crispino was either under undue influence exerted by them or that she lacked testamentary capacity at the time she signed the will. [ 8 ] With the exception of the arguments concerning the formalities governing the will and

article 727 C.C.Q ., the present appeal raises only questions of fact.

The Appellants essentially review the evidence in detail, emphasize elements which, in their opinion, the judge did not properly consider or attribute sufficient weight to and invite this Court to shed a different light on these facts so as to conclude otherwise, without, however, demonstrating any palpable and overriding error in the judge’s assessment of the proof. [1] [ 9 ] It is not for this Court to conduct a de novo analysis and a re-evaluation of the evidence assessed by the trial judge, “ whose fact- finding mission is at the core of our judicial system”. [2] [ 10 ] The trial judge carefully assessed the credibility of the various witnesses, including each party’s expert who testified as to his assessment of Lucia Crispino’s capacity on the afternoon of December 3, 2013 in the emergency room.

The judge favoured the Respondent’s expert, Dr. Friedman, over the Appellants’ expert, Dr. Milroy, who she found tended to minimize the decline of both Lucia Crispino’s physical condition and cognitive functioning. [ 11 ] She also noted that Dr. Milroy admitted at trial not having reviewed the entire medical record but only the excerpts that were contained in Dr. Friedman’s report. In fact, a careful reading of the transcript of Dr.

Milroy’s testimony demonstrates that he relied, at least in part, on facts that were alleged in the written proceedings but that were ultimately not retained as truthful by the trial judge. [3] [ 12 ] Ultimately, the trial judge stated that Dr. Friedman’s report, together with the circumstances surrounding the preparation and execution of the will on December 3, 2013, satisfied her that Claudio had met his burden of proof to establish prima facie evidence that Lucia Crispino did not have testamentary capacity when she signed the will and that the other evidence before her was insufficient to alter that finding.

The Court sees no reason to intervene in that regard. [ 13 ] The judge particularly noted the following in the evidence: (

i) the contradictory and troubling evidence surrounding the signing of the will; (ii) the undue haste with which the will was signed and witnesses were called to assist at the hospital while Lucia Crispino was suffering greatly and was vulnerable; (iii) the evidence of all of her past wills demonstrating the constancy of her, and of her late husband’s, desire to bequeath the Mozart property to the Respondent or his family; (iv) the benefit the Appellants stood to gain by this new will; and (

v) the fact that the Appellants hid the new will from their brother. From those facts, the judge drew the following inferences: [156] The evidence leads the Court to conclude that, when Clelia’s arrived to Montreal, her nephew Antonio advised her of the contents of Lucia’s Will. She was not happy. At that moment, Clelia decided “ to make things right ”. [157] Upon her arrival to Montreal Clelia slept for several nights with her mother. On December 3 rd , 2013, Clelia, not Lucia, told Ada to come to the house because her mother wished to change her will.

At the Claudio’s residence there is no discussion of the will among the siblings. Ada and Clelia would have the Court to believe that as soon as Lucia laid on the ground in pain her only concern was make her will.

[158] It speaks volumes as to the Sister’s intentions that Clelia bought a pad of paper to the hospital and that Ada was able to make the arrangements for the attendance of a lawyer and two witnesses as well as the signature of the purported Will all within two hours of Lucia’s arrival to Santa Cabrini Hospital. [159] Why did they not invite Claudio to come to the hospital if it was, in fact, Lucia’s desire to change her Will? There was no urgency. It could have waited until the next day or at least until Claudio arrived to the hospital.

It is obvious that this was Ada’s and Clelia’s window of opportunity to get their mother change her Will without their brother’s knowledge. It had to be done quickly . [160] Lucia signed the Will while lying on a gurney at the emergency unit. She had just fractured her hip, was wearing a stiff cervical collar and had inserted catheter. Although Ada and Clelia minimize the pain Lucia endured, it was sufficiently significant to require the administration of morphine. The ambulance records indicate level of pain at 8 out of 10 .

Whether Lucia signed the Will before or after she received the injection of morphine is not relevant. The Sisters took advantage of Lucia in her very weakened and vulnerable state . [161] Claudio was only informed of the existence of a document or the Will in 2014. By that time, the Will could never be changed. Lucia was totally incapacitated. They hid the Will from Claudio .

He was only provided with a copy of the Will on March 26 th 2015. [Underlining added] [ 14 ] The conclusions of the trial judge as to the undue influence exercised by the Appellants were based on her findings of fact and her evaluation of the evidence and, in large measure, on her assessment of the credibility of the witnesses that testified before her. Her findings of fact are supported by the evidence, and the inferences she drew are consistent with those findings.

The Appellants have not identified a palpable and overriding error in any assessment of credibility or in the judge’s consideration of the evidence as a whole. The inferences she drew were based on serious, precise and concordant presumptions of fact. [ 15 ] The foregoing is sufficient to dispose of the appeal, such that it is unnecessary to examine the other questions raised by the appeal regarding articles 727 C.C.Q . and 462 C.C.P. FOR THESE REASONS, THE COURT: [ 16 ] DISMISSES the appeal, with legal costs. MARK SCHRAGER, J.A. STÉPHANE SANSFAÇON, J.A. CHRISTINE BAUDOUIN, J.A. Mtre René R.

Gauthier LAZARUS, CHARBONNEAU For the Appellants Mtre Anne-France Goldwater GOLDWATER, DUBÉ For the Respondent Date of hearing: May 5, 2021