Veronica Brien v. FRANCIS WALSH, 2020 NLSC 59

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Brien v. Walsh , 2020 NLSC 59 Date : May 1, 2020 Docket : 201701G6001 Between: Veronica Brien and FRANCIS WALSH PlaintiffS And: MARYLOU Walsh First Defendant And: MARIE COOMBS Second Defendant And: JACQUELINE WALSH Third Defendant AND: HELEN walsh FOURTH DEFENDANT AND: GARY WALSH FIFTH DEFENDANT Before: Justice Alphonsus E. Faour

Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: November 12 – December 10, 2019

Summary: The Plaintiffs brought this action to prove a will in solemn form. Three of the Defendants contested the Will. All parties were childrenof the deceased and beneficiaries under the Will. The Contesting Parties maintained their mother was not competent, and was subject toundue influence on the part of the Plaintiffs. They sought to have the Will declared invalid. The Court held that the position of the Contesting Parties was without merit. The Will was declared to be valid and admitted to Probate. Costs were awarded against the Contesting Parties. The Plaintiffs were entitled to solicitor and client costs.

The First Defendant and theFifth Defendant were entitled to party and party costs notwithstanding they were not represented by counsel. Appearances: Catherine J. Perry Appearing on behalf of the Plaintiffs Marylou Walsh Appearing on behalf of herself Marie Coombs Appearing on behalf of herself Jacqueline Walsh Appearing on behalf of herself Helen Walsh Appearing on behalf of herself Gary Walsh Appearing on behalf of himself Authorities Cited: CASES CONSIDERED: Walsh Estate v. Newfoundland and Labrador, 2014 NLTD(G) 120; Coombs v. Walsh, 2017 NLTD(G) 83; Bayne v. Bartlett, 2004NLSCTD 41; Lethbridge Estate v.

McCormack, 2009 NLTD 86; Vout v. Hay, (SCC), [1995] 2 S.C.R. 876; Melendy v.Drodge, 2017 NLCA 46; Russell v. Fraser (1980), (BC CA), 118 D.L.R. (3d) 733, 1980 CarswellBC 533 (C.A.);McDougald Estate v. Gooderham (2005), (ON CA), 255 D.L.R. (4th) 435, 2005 CarswellOnt 2407 (C.A.); PowerEstate, Re (2001), (NL SC), 205 Nfld. & P.E.I.R. 163, 2001 CarswellNfld 272, (S.C.(T.D.)); Sidorsky v. CFCNCommunications Ltd., (AB KB), [1995] A.J. No. 174, 1995 CarswellAlta 86 (Q.B.); Kerner v. Fioreli, [1990] O.J.No. 506, 1990 CarswellOnt 476 (Surr. Ct.); Franey v. Franey (1997), (NL CA), 148 Nfld. & P.E.I.R. 181, 1997

CarswellNfld 63 (C.A.); Cabana v. Newfoundland and Labrador, 2016 NLCA 75 STATUTES CONSIDERED: Wills Act, R.S.N.L. 1990, c. W-10 RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. D to the Judicature Act, R.S.N.L. 1990, c. J-4 TEXTS CONSIDERED: Brian A. Schnurr, Estate Litigation, Volume 2, 2nd. ed. (Toronto: Carswell 1994) REASONS FOR JUDGMENT Faour, J.: INTRODUCTION [1] This is an unfortunate case involving a family divided over the validity of a will. Mrs. Helen Walsh died on February 4, 2016,having previously made her last Will and Testament (the “Will”) on April 11, 2013.

In the Will, Mrs. Walsh provided for unequalbequests to her seven children. Three of those children are contesting the Will, saying that their mother did not have the mental capacityto enter into the Will, and that, in any event, she was subject to undue influence by two of their siblings. [2] The parties are the seven children of Mrs. Helen Walsh and Mr. John Walsh. John Walsh died on January 1, 2013, havingpreviously made his Will in 2012. At the same time as his will was prepared, instructions were provided for a similar will for Mrs.Walsh. That document was prepared, but never signed.

Shortly after John’s death, Mrs. Walsh indicated her wish to make her own will,and expressed the wish that it would be different from that of her husband. [3] In this trial, the Plaintiffs and main Proponents of the Will are Ms. Veronica Brien and Mr. Francis Walsh. They were namedin the Will as Executors. The Defendants are Mrs. Walsh’s other five children. Three of them, Ms. Marie Coombs, Ms. JacquelineWalsh and Ms. Helen Walsh, are contesting the Will (the “Contesting Parties”). The other two, Ms. Marylou Walsh and Mr. Gary Walshactually support the validity of the Will.

They are included as Defendants only because the Executors named all of the other children asDefendants. In these reasons, the Plaintiffs, the First Defendant and the Fifth Defendant will be referred to as the “Proponents”, exceptwhere the context dictates otherwise. [4] The Will provided for specific bequests to all the children, with the exception of the Plaintiffs, who were entitled to split theresidue. The value of the residual share was greatly enhanced following the successful Quieting of Titles trial respecting land in thetown of Torbay, Newfoundland and Labrador. The decision, Walsh Estate v.

Newfoundland and Labrador, 2014 NLTD(G) 120, wasreleased in this Court on October 16, 2014, some 18 months after Mrs. Walsh signed her Will. [5] Probate was granted by this Court on March 18, 2016. On January 13, 2017 the Contesting Parties brought an application toset aside Probate and replace the named Executors. Based on the affidavits presented, the Applications Judge set aside the grant ofProbate and ordered that the Will be proven in solemn form: Coombs v. Walsh, 2017 NLTD(G) 83. The Plaintiffs, who were the namedexecutors, were appointed Administrators pendent lite.

Those affidavits formed part of the evidence in this trial. All of the deponentstestified, and some were cross-examined. Several other witnesses testified and a number of documents were introduced. [6] In this decision I will examine the law governing proof in solemn form to establish the elements of proof which each side hasto address.

Then I will go on to consider the evidence and submissions relating to five issues: First, whether there was due execution ofthe Will; Second, whether the evidence discloses justification for raising an objection to the Will – the question of “suspiciouscircumstances”; Third, if there is evidence of suspicious circumstances, whether the Plaintiffs, or Proponents of the Will, haveestablished that Mrs. Walsh in fact had the necessary capacity and knowledge to execute her Will; Fourth, I will examine the ContestingParties’ allegations of undue influence; and Fifth, I will address the issue of costs.

Proof in Solemn Form [7] The law relating to proof of a will in solemn form requires an approach well defined in law. Proof in solemn form iscontrasted with proof in common form. The latter requires proof of due and proper execution. This is usually accomplished by anaffidavit of a witness to the execution of the will. [8] However, where there is opposition to the granting of Probate, a court may order proof in solemn form.

This involves a fulltrial with evidence relating to the questions of execution, capacity and undue influence. [9] Proof of a will in solemn form starts from the premise that a competent testator may prepare a will that demonstrates, at theextreme, irrationality, frivolity or even bad motives. The provisions of a will do not have to conform to the values, the logic, or thesentiments of a disinterested observer, let alone those who have a direct interest in the estate. Testamentary competence is usually one ofthe key issues in such a case, however it is often not the only one.

In this case, it is one of several issues to be addressed. [10] The following excerpt from the decision of Justice Hall of this Court in Bayne v. Bartlett, 2004 NLSCTD 41 is helpful. Atparagraph 95 et. seq. several authorities are canvassed addressing issues of competency versus eccentricity: 95. In Colbourne v. Morey (1995), (NL SC), 127 Nfld. & P.E.I.R. 34 (Nfld.

T.D.), Roberts, J. (as he then was) ofthis Court dealt with the situation where an executor had applied for Probate of a will and the testator's estranged wife challenged theapplication on the basis that the testator had lacked sufficient testamentary capacity to make a valid will. In the portion of the judgmententitled "Law and Analysis" Roberts, J. cited with approval the following citation from the Third Edition of Macdonnell, Sheard and Hull

on Probate and Practice (1981): From time immemorial it has been the law of England that no person of unsound mind is capable of making a will. Since, however, theperfectly normal mind, like other examples of perfection, is not to be found in this world, the question becomes: At what point aredeviations from the theoretical norm to be considered as amounting in law to unsoundness of mind? As was said in an oft-quotedpassage: There is no difficulty in the case of a raving madman or of a drivelling idiot, in saying that he is not a person capable of disposing ofproperty.

But between such an extreme case and that of a man of perfectly sound and vigorous understanding there is every shade ofintellect, every degree of mental capacity. There is no possibility of mistaking midnight for noon; but as to what precise moment twilightbecomes darkness is hard to determine.' (Boyse v. Rossborough (1857), 6 H.L.C. 2, at 45; 10 E.R. 1192) 96.

Roberts, J. at paragraph [28] in Colbourne then cites with approval the following quotation from pages 22 and 23 of Volume 1 of Feeney, Thomas G., The Canadian Law of Wills (2nd Ed. 1982): When a will is contested on the ground of mental incapacity, the executors must prove that the testator had a sound disposing mind. Thismeans that they must show that the testator was not only able to understand what he was doing, but that he was able to comprehend andrecollect what property he had and remember the persons that he might be expected to benefit.

He must understand, too, the extent ofwhat he is giving to each beneficiary and the nature of the claims of others whom he is excluding. 97. Further, at paragraph [29] of Colbourne, Roberts, J. cites with approval the following quotation from page 24 of Feeney: Thus, it may be said that the standard of mental capacity required by the law for wills is high, but it is not so high as to exclude eccentricor inefficacious wills.

One Ontario judge has said it must amount to something more than entertaining 'wrong headed notions' and thatone may be 'eccentric and do absurd things and be a person with whom it is impossible to live', but still be capable of making a will. [11] Justice Hall went on to discuss the relevant elements in determining whether testamentary capacity exists.

He cited severalfactors that ought to be considered: First, that the testator understands the nature of creating a will and its effects; Second, that thetestator appreciates the extent of the property in the estate which is the subject of the will; Third, that the testator be able to understandthe competing claims which may bear on the estate; and Fourth; that there is no disorder of the mind which would distort or influencethe ability of the testator to appreciate the consequences of disposing the property in the estate. [12] This means that a testator does not have to produce a will that corresponds to what others, even family members, think isappropriate.

The weight of our law supports the autonomy of an individual to write a will making dispositions of property which may berational, irrational, or displaying eccentricities. The only requirement is that the testator have testamentary capacity. [13] These are the factors, among others, which will be applied to the evidence in this case. However, before addressing them, Iwish to set out the established approach to undertaking proof in solemn form. Justice Handrigan outlined the procedure in LethbridgeEstate v. McCormack, 2009 NLTD 86. He cited the Supreme Court of Canada decision in Vout v.

Hay, (SCC), [1995]2 S.C.R. 876 and summarized the principles which he accepted as a statement of the law, at paragraph 4: 4. 1. The person propounding the will must prove on a balance of probabilities that the will was duly executed, that the testator knewand approved of what he was doing and had the testamentary capacity to do it. 2. If the propounder of the will proves that it was executed with the necessary formalities and that it was read over to or by a testatorwho appeared to understand it, the testator is presumed to have known and approved of its contents and to have had testamentarycapacity. 3.

Those attacking the will can rebut the presumption (of knowledge and approval and testamentary capacity) by raising evidence ofsuspicious circumstances and, if so, the propounder of the will must adduce evidence to prove that the testator knew and approved thecontents of his will. 4. If the presumption is rebutted, the extent of the proof that the testator knew and approved the contents of his will is proportionateto the gravity of the suspicion which those attacking the will raised.

5. If those attacking the will do not raise suspicious circumstances, the presumption of knowledge and approval and testamentary capacity prevails and the will is valid and admitted to probate. 5. From the preceding, it is usually thought that there are three potential phases to proceedings involving contested wills: Phase I: The propounder presents evidence to prove on a balance of probabilities that the will was executed with the necessary formalities and that it was read over to or by a testator who appeared to understand it.

Phase II The challenger adduces evidence which raises "suspicious circumstances" about the will.

Phase III The propounder of the will adduces evidence to prove that the testator knew and approved the contents of his will and was capable of making it. [ 14 ] It appears clear that once the formalities of execution have been established, one who contests the validity of the will must raise suspicious circumstances, and if there is such evidence, then the burden of proof as to the competency of the testator and that the testator approved of the contents of the will falls to those propounding the validity of the will. [ 15 ] There has been much discussion, in the jurisprudence and in this trial, about the question of suspicious circumstances.

Justice Handrigan elaborated on the concept in Lethbridge . At paragraph 7 he cited an old English case which described the origins of the term as relating to a “situation where the person who draws the will is himself a beneficiary.” Subsequent authorities have expanded the scope of suspicious circumstances from this original approach, and Justice Handrigan provided a

summary in his decision. [ 16 ] At paragraph 8, he described three elements of the concept: 8. It is also widely accepted that suspicious circumstances may be raised by evidence of one or more of the following: 1. Circumstances that attend the preparation of the will. 2. Circumstances that call into question the testator's capacity. 3.

Circumstances that show the testator's free will may have been overborne by acts of coercion or fraud. [ 17 ] I accept that, to be relevant to proof in solemn form, the raising of suspicious circumstances must relate to, or surround, the preparation of the will, and not be removed in time. The testator’s mental capacity and free will at the time of preparation and execution of the will must be determined.

To raise suspicious circumstances, the Contesting Parties must show evidence that calls into question whether the testator was of sound mind, or of her own mind, during the period associated with the making of her Will. [ 18 ] To summarize the authorities, the Propounders of the Will, in Phase I of the required procedure, must first establish that all the formalities of execution were properly carried out. Then the Will is presumed to be valid.

If suspicious circumstances are established at Phase II, the Propounders lose the benefit of the presumption and must prove, at Phase III on a balance of probabilities, that the testator had the necessary capacity, knowledge and approval. [ 19 ] Phase III involves an assessment of both testamentary capacity and the existence of undue influence. In addition to questioning their mother’s capacity, the Contesting Parties have alleged undue influence. There is an overlap in the evidence on each, but nonetheless a distinction between suspicious circumstances relating to capacity and undue influence.

There may be some evidence that calls into question the capacity of the testator, thus rebutting the presumption of competence and requiring the Propounders of the Will to prove capacity on a balance of probabilities. Once capacity is established, there may be little room for a finding of undue influence.

However, and notwithstanding a finding of capacity, the law allows a person challenging a will to adduce evidence of undue influence in an effort to persuade the court, on a balance of probabilities, that the will was a product, not of free will, but of coercion and fraud.

As Justice Sopinka said in Vout at paragraph 29 : 29. … A person may well appreciate what he or she is doing but be doing it as a result of coercion or fraud. [ 20 ] My analysis will follow this framework – Phase I, due execution; Phase II, suspicious circumstances; if required, Phase III, first, proof of capacity and knowledge, and second, assessment of the Contesting Parties’ claim of undue influence. Phase I – Due Execution [ 21 ] The evidence of preparation and execution of the Will came mainly from the testimony of Katherine Hurley. Ms. Brien, one of the Plaintiffs, also testified on this issue. Ms.

Hurley was the legal assistant to lawyer Mr. John Kelly who took instructions from Mrs. Walsh, prepared the draft will based on her instructions, and attended at its execution. Unfortunately, Mr. Kelly died before this trial could take place. [ 22 ] Ms. Hurley had worked as a legal assistant for 28 years, and with Mr. Kelly for 18 years. She was familiar with the procedure undertaken by Mr. Kelly in respect of taking instructions for wills, preparing drafts, and the due execution of the final document.

She was responsible for typing the documents, and often was a witness to the execution. [ 23 ] In her testimony she described Mr. Kelly’s practice of receiving a client for the purpose of preparing a will. He would meet with the client alone in his office to take instructions. Following that meeting, he would produce a handwritten draft, and Ms. Hurley would type it. There would be some back and forth for editing, and then an appointment would be made for the purpose of having the client sign it. [ 24 ] Ms. Hurley testified that she knew John and Helen Walsh as they were clients of Mr. Kelly.

She reviewed their file from the office, and testified from her own memory respecting the days when Mrs. Walsh gave instructions for the preparation of the Will, and when she executed it. She said there were meetings between Mr. Kelly and Mrs. Walsh on April 8 and 11, 2013. She was asked if anyone came with Mrs. Walsh to the office, and she said she couldn’t recall if anyone had come with her, but she was certain that Mr. Kelly met with her alone. [ 25 ] In later testimony, Ms. Brien testified that she went with her mother to Mr. Kelly’s office.

She said her mother asked her to come into the office while she met with the lawyer, but Mr. Kelly insisted that he meet with her alone. According to Ms. Hurley, the two were in his office for almost a full hour. [ 26 ] When Mrs. Walsh left the office, Mr. Kelly, as was his practice, prepared a handwritten draft which Ms. Hurley typed. She testified that there could have been several edits before Mr. Kelly was satisfied with the final product. [ 27 ] On April 11, 2013, Ms. Hurley made arrangements for Mrs. Walsh to execute the Will. She recalled that Mr. Kelly decided to meet Mrs.

Walsh at her home, because of her mobility difficulties. Mr. Kelly and Ms. Hurley proceeded to Mrs. Walsh’s home, and she recalled sitting in her kitchen while the draft will was presented. Ms. Hurley testified that Mr. Kelly reviewed each paragraph of the Will with Mrs. Walsh, explaining the details, and asking if she understood and agreed. Ms. Hurley testified that by her observations, Mrs. Walsh seemed to understand, and agreed with the contents of the Will read out by Mr. Kelly. [ 28 ] Following the explanation, Ms. Hurley recalled that Mrs. Walsh asked Mr. Kelly if he thought the Will was fair.

The reply was that it was, and Mrs. Walsh appeared satisfied with the answer. Ms. Hurley recalled that Mrs. Walsh said “that’s fair”. Then she saw Mrs. Walsh sign it, followed by Mr. Kelly and herself as witnesses. [ 29 ] The Contesting Parties question the evidence of due execution. In particular, they challenge Ms. Hurley’s ability to accurately recall and recount the events of April 11, 2013 in Mrs. Walsh’s kitchen. I found that she was a credible and forthright witness and I have no hesitation as accepting as accurate her recollection of the events of that day.

Her evidence, together with that of the Will itself, satisfies me that the Will was duly executed in accordance with the provisions of

section 2 of the Wills Act , R.S.N.L. 1990, c. W-10 . That finding raises a presumption in favour of the Proponents that Mrs. Walsh had the necessary capacity to execute the Will as an expression of her testamentary intentions and that she knew and approved of the contents of the Will. To rebut the presumption of validity, the Contesting Parties must now lead evidence tending to raise a suspicion about Mrs. Walsh’s capacity, knowledge and approval of the provisions of the Will. This is the Phase II consideration. Phase II - Suspicious Circumstances [ 30 ] What is the evidence of suspicious circumstances?

The Contesting Parties are obligated in Phase II to provide evidence that rebuts the presumption of due execution. The allegations of suspicious circumstances must not be removed in time from the events surrounding the preparation of the Will. [ 31 ] I start by examining the affidavits of the Contesting Parties. They also gave oral evidence and were cross-examined.

The Proponents say that their evidence, in particular the affidavits, is not credible, that it is exaggerated, and draws conclusions that, by any objective assessment, cannot be sustained. [ 32 ] The affidavits presented at the Application to set aside Probate were the source of many of the allegations of suspicious circumstances put forth by the Contesting Parties, and were the subject of cross-examination by Plaintiffs’ counsel. The circumstances surrounding their creation deserves some scrutiny. Prior to the Applications hearing, Ms. Coombs and her sister Ms.

Jacqueline Walsh were the driving forces behind contesting the Will. They arranged for legal counsel, and provided instructions for the affidavits. They also gave instructions for the preparation of affidavits for the signatures of Ms. Helen Walsh and Mr. Gary Walsh. [ 33 ] Ms. Helen Walsh testified that she never read the affidavit before she signed it. She was asked about her statement in the

affidavit that she had talked with her mother about her father’s will. She replied that she never said anything about it. When pressed about those conversations with her mother, she admitted she never read the affidavit, that she signed it based on the direction of her sister. [ 34 ] Mr. Gary Walsh testified that he met with his sisters at a law office and was presented with a draft affidavit to sign. He said he had not seen it before, and did not recall giving any such instructions.

He refused to sign the affidavit, and denied any involvement in its drafting. [ 35 ] I conclude that the preparation of the evidence in the form of the affidavits for that Application was driven by two of the children, Ms. Coombs and Ms. Jacqueline Walsh. The contents were not based on personal knowledge, but seem to have been based on their opinion, speculation and conjecture about the actual state of affairs within the family. Neither had been close to the family for more than 20 years, and therefore had no way of knowing the background to which they deposed.

As a consequence, many of their statements in the affidavits were exaggerated or misleading. [ 36 ] The Contesting Parties raised a number of points which they alleged constituted suspicious circumstances surrounding the preparation and execution of the Will. [ 37 ] All of the children agreed that four of them had a difficult relationship with their father; however, there was a difference of view whether the roots of that estrangement were the father’s abusive nature, or the actions of the children with which the father disagreed. Ms. Coombs and Ms.

Jacqueline Walsh appear from the evidence to have had a more difficult relationship with him than the others. Mr. Gary Walsh and Ms. Helen Walsh also had difficulties with their parents, but they were able to maintain contact with them, and had better knowledge of the family dynamics. This fact was not presented as suspicious in itself, but it does provide some context for some of the subsequent allegations. [ 38 ] The Contesting Parties say that the fact that Mrs. Walsh waited several months after the death of her husband before the preparation of her Will was suspicious. The evidence disclosed that while Mrs.

Walsh spoke of preparing her Will shortly after the death of her husband in early January 2013, Ms. Brien persuaded her mother to wait a few months. This delay was interpreted by the Contesting Parties as exertion of control by Ms. Brien over her mother. [ 39 ] The evidence showed different points of view among the parties about the question of delay in preparation of her Will following the death of her husband. Ms. Brien testified that she wanted her mother to wait a few months as the emotional impact following John Walsh’s death was too great.

The Contesting Parties took this as an indication of influence over their mother, however they were not united in this view. Ms. Coombs and Ms. Jacqueline Walsh testified that they felt their mother should have prepared a will immediately following their father’s death. Ms. Helen Walsh, on the other hand, felt her mother should have waited even longer, as she needed more time to recover from the shock of her husband’s death. [ 40 ] The timing of preparation of her Will seemed more related to Mrs. Walsh’s need to consider the issues that would have to be addressed, than any influence exerted by Ms. Brien.

More importantly, there was no evidence of coercion or fraud during the period from the death of Mr. Walsh and the appointment between Mrs. Walsh and Mr. Kelly to give instructions for the Will. This was not suspicious and I rejected the Contesting Parties’ view of the so-called delay in preparation of the Will. [ 41 ] The Contesting Parties focused on one document which they felt was suspicious. It was prepared just before the date set for Mrs. Walsh’s meeting with Mr. Kelly on April 8, 2013. The document was in the form of a memo found in Mr. Kelly’s file, and appears to have been given to him by Mrs.

Walsh when she met him to give instructions for her Will. Ms. Brien testified that on the day before her mother went to see Mr. Kelly she asked Ms. Brien to type a document outlining a distribution by percentages (the “percentages document”). Ms. Brien said that she prepared a one-page document dictated by her mother.

It read as follows: Helen 7% of estate providing Torbay land is okay Maximum $50,000 Gary 5% of estate providing Torbay land is okay Maximum $40,000 Marie 5% of estate providing Torbay land is okay Maximum $40,000 Jackie 5% of estate providing Torbay land is okay Maximum $40,000 Marylou 15% of estate providing Torbay land is okay Maximum $100,000 Francis 31.5% Veronica 31.5%

Total 100% Power of Attorney – Veronica, Francis, Marylou Executor – Veronica & Francis If Veronica or Francis dies before Mom their family would get their share. Mom is to be criminated [sic] after mass, opened for one day, family flowers, and Christian burial. [ 42 ] This document was given to Mrs. Walsh, and she took it with her to her meeting with Mr. Kelly. It was found in the lawyer’s file, and provided to the Court by Ms. Hurley. The Will prepared by Mr. Kelly contained several specific bequests, and then set out directions to be followed for distribution to her children.

That distribution followed, generally, the contents of the “percentages document”, with some minor changes. The Contesting Parties took the view that as a result of this document, the Will did not reflect the intent of their mother, but the intent of Ms. Brien. Ms. Coombs said in her testimony that this document informed Mr. Kelly’s drafting of the Will, and she felt there was something wrong with how these events took place. [ 43 ] Ms. Coombs insisted that the preparation of this document, combined with her view of the limited mental capacity of her mother, was suspicious.

She testified that this was, in effect, the preparation of the Will by Ms. Brien, and could not have been the product of her mother’s intent. She cited the presence of several factors which, if present, should raise the attention of a solicitor taking instructions for a will. These were noted in the text by Brian A.

Schnurr, Estate Litigation , Volume 2, 2nd. ed. (Toronto: Carswell 1994) at page 21.9: 1. an elderly testator; 2. a testator who has suffered significant ill health, particularly if the condition, the disease or required medication could affect the mental stability or general mental outlook of the testator; 3. a testator who is unwilling to provide the solicitor with full information relating to the assets, liabilities or family condition and circumstances; 4. the disposition of the estate is one that would generally be viewed as being unusual in the context of the objective circumstances of the testator; 5. a beneficiary of the will has been particularly involved in assisting the testator with the preparation of the will; and 6. the dispositions set out in the will represent a drastic departure from the terms of the former will. [ 44 ] Even if some of these circumstances were present at the time Mr.

Kelly interviewed Mrs. Walsh and took instructions for the preparation of the Will, the evidence before the Court is that all formal procedures were followed. The presence of these factors may attract the attention of a solicitor, but they do not lead to the inevitable conclusion that they constitute a suspicious circumstance. That would ignore the role of the lawyer, and in this case, the evidence suggests that Mr. Kelly was attentive to the circumstances of his client. There was nothing raised by the Contesting Parties which would derogate from Mr. Kelly’s proper handling of this matter.

The Contesting Parties failed to present any evidence to support their allegations that this document meant that Ms. Brien had inserted her influence into the preparation of the Will. Even if some of the facts might have been questionable, which I reject, there was nothing in the evidence that it amounted to coercion or fraud or in any way overrode the Will or intent of Mrs. Walsh. In any event, I believe this issue raised by the Contesting Parties was a distortion of the actual situation.

There was no indication that the three months between the death of John Walsh and the preparation of Helen Walsh’s Will carried with it the sinister aspect described by the Contesting Parties but were merely differences of opinion. They did not raise an issue that could be termed suspicious. [ 45 ] The Contesting Parties took the view that there was something suspicious in the manner in which Mr. John Kelly took instructions and prepared the Will. The accusations of the Contesting Parties concerning inappropriate handling of the matter by Mr.

Kelly were mere speculation, based on their pre-conceived view that their mother was incompetent. I have already concluded that all of the safeguards were followed during both the taking of instructions and the execution of the Will. The comments in the affidavits of the Contesting Parties and their testimony, concerning this matter were either exaggerated or false, and based on nothing more than conjecture. This does not constitute a suspicious circumstance. The evidence allowed me to conclude that there was nothing amiss in how Mrs. Walsh’s Will was prepared.

[ 46 ] The Contesting Parties recounted how, after the death of their father, their mother expressed discontent about the contents of his will. They also reported their mother’s wish to correct what the father had done in his will. She expressed the view that she wanted to treat her children “fairly”. The fact that her actual Will deviated only marginally from that of her husband’s was viewed by them as suspicious in the influence of Ms.

Brien, and supported their view of cognitive decline. [ 47 ] It is true that her Will deviated in only minor ways from that of her husband, although it did include one of the children, Ms. Coombs, who had been left out by her father presumably due to her estrangement within the family. There was also a small change in the amounts of some of the bequests. But this cannot be taken as suspicious, since, by itself, it does not bear on whether Mrs.

Walsh had capacity, knowledge and free will in the making of her Will. [ 48 ] The Contesting Parties alleged that the events surrounding the obtaining of Probate after their mother’s death created suspicion of inappropriate conduct. They said that there was significant delay and secrecy surrounding the Probate procedures. Ms. Coombs was the source of much of this allegation. Paragraph 6 of her affidavit sworn on February 13, 2017 read as follows: 6. The Respondents did everything they could to conceal what was going on with my mother’s will.

They refused to answer questions and often said “it’s none of your business”. They would not respond to emails. They delayed when asked for copies of the probated will and refused to attend family meetings. When they decided to reveal the probated will, they chose a date when they knew that two of the Applicants would be out of the province and could not attend. They have never voluntarily given information to us regarding what is going on with estate assets. … [ 49 ] In her testimony a different picture emerged. She agreed that Ms. Brien had told her that Mr. Kelly was retained to apply for Probate.

She also agreed that Ms. Brien never said “it’s none of your business”. This is just one example of how the affidavits were tailored to put a negative spin on actions taken by Ms. Brien. [ 50 ] According to Ms. Brien, she was advised by her lawyer not to release the Will until after Probate had been granted. We did not have evidence of the actual time of receipt of the Letters of Probate by the lawyer’s office, and subsequently by Ms. Brien.

However, on examination of the timeline available about the preparation of the Petition for Probate, presentation to the Court, and its subsequent issuance, followed by transmission to the lawyer’s office and then to Ms. Brien, it became evident that there was nothing unusual about the timing. [ 51 ] The record shows that Probate was granted on Friday, March 18, 2016. It is not likely that the documentation was sent from the Court to the lawyer’s office on that same day, given that it was on a Friday. It was probably mailed out to Mr.

Kelly’s office the following Monday or Tuesday, the 21st or 22nd of March, and likely received at his office by Wednesday or Thursday of that week. [ 52 ] Due to Friday, March 25, 2016 being the Good Friday holiday, it is not likely it was mailed to Ms. Brien until the following Monday or Tuesday, March 28th or 29th, 2016. That means receipt by her on Tuesday or Wednesday. The record shows that Ms. Brien’s first recorded communication with Ms. Coombs about the probated Will was Tuesday, March 29th. That communication was for the purpose of arranging a family meeting to disclose the contents of the Will.

That was probably the earliest she could have advised family members that Probate had been obtained. [ 53 ] Even if my recounting of the possible timeline is not accurate, I cannot find any evidence of delay.

In any event, these events took place some three years after the Will was prepared and signed, and therefore are irrelevant in an assessment of whether suspicious circumstances existed related to the preparation of the Will. [ 54 ] The Contesting Parties argued that their mother’s participation in the Quieting of Titles proceeding concerning the land in Torbay was so limited it raised suspicions that she was incapable of understanding the value of her estate. The Court heard testimony of Ms. Helen Walsh who said she reviewed some of the documentation associated with the land dispute with her mother.

It seemed evident that while she may not have understood the details, she had a general knowledge of what was at stake. A recording and transcript of Mrs. Walsh’s testimony in Court was presented in evidence. It suggested that she was engaged with the issues in that matter, at least in a general way. Mrs. Walsh answered appropriately during her examination. The testimony of Ms. Coombs and Ms. Jacqueline Walsh that she did not grasp the issues were unfounded. More importantly, it did not accurately reflect the facts as presented in this trial.

These allegations do not support the existence of suspicious circumstances. [ 55 ] The Contesting Parties found suspicious circumstances in the allegation that there was a deal between the Proponents and Ms. Marylou Walsh with respect to the Torbay land. They suggest this deal arose because Ms. Marylou Walsh was upset by the small bequest in her favour and felt she should be entitled to her fair share of the land. Even if this had been proven, it could not be the basis for suspicious circumstances attending the preparation and execution of the Will.

The allegation respecting a deal was not connected to the preparation of the Will but arose after Mrs. Walsh died, therefore making it removed in time from the execution of the Will. [ 56 ] There were allegations concerning a level of secrecy and control exerted by Ms. Brien about the release of their father’s will after his death, and in the preparation of their mother’s Will. These included assertions that Ms. Brien told their mother that some of her children did not care about her, and in other ways she put pressure on Mrs. Walsh with respect to her Will.

However there was nothing in the issue of secrecy which could raise suspicions about Mrs. Walsh’s Will. Regarding the issue of control, I was not provided with evidence of any event which might have constituted coercion or fraud on Mrs. Walsh in respect of her Will, and could have raised the prospect of suspicious circumstances. [ 57 ] Another issue was raised in Ms. Coombs’ affidavit and her testimony concerning the existence of large amounts of cash and gold bars which she said were excluded from the estate inventory. Paragraph 14.(

o) of her supplementary affidavit dated February 13, 2017: 14.(

o) The Respondents deliberately obfuscate financial matters. They have cash hidden in envelopes in our mother’s home, in a lockbox in our mother’s bedroom, a safe in the basement, and in a safe deposit box at the bank, and this cash does not appear to have been included in the estate inventory. My parents also owned gold bars at one time that were hidden in the basement of their home, but I do not know what happened to them.

[ 58 ] This comment was designed to ground allegations of suspicious circumstances surrounding the involvement of both Plaintiffs in the final inventory of the estate. The evidence at trial disclosed that these assertions were unsupported and based only on speculation. In answer to a question concerning these matters, Ms. Coombs insisted this statement was true, although she admitted she had no personal knowledge of the existence of these items. She said that she was aware of the gold bars from her understanding of events some 20 years earlier, and based on that, accused the Plaintiffs of hiding assets.

She admitted in her testimony that she was estranged from the family for about 20 years prior to her father’s death, and had no knowledge of what may have happened to these assets in the intervening years. [ 59 ] The allegations themselves, being based only on the opinions of the Contesting Parties, are not credible, and cannot be used to support the existence of suspicious circumstances. In any event, they do not address questions of competence or influence. In addition, these matters arose only at the time of the Petition for Probate, some three years following the preparation of Mrs.

Walsh’s Will and are irrelevant to the time of execution of the Will. These allegations could not support the presence of suspicious circumstances to justify proof in solemn form. [ 60 ] There were allegations that the Proponents concealed information on the value of the Torbay land. The Contesting Parties presented this as suspicious circumstances surrounding the value of the estate. The evidence showed no concealment, as there could have been no knowledge of the value of the land until after the Quieting of Titles decision, when an assessment could have been performed.

In any event, the issue of the value of the land does not bear any logical or temporal relationship with the execution of the Will. This is not a suspicious circumstance. [ 61 ] The Contesting Parties made reference to what was termed a “small” bequest to Ms. Helen Walsh which was viewed as being at odds with Mrs. Walsh’s stated interest in helping her. They appeared to equate help with giving Ms. Helen Walsh more money. Ms. Helen Walsh specifically said that her mother told her Ms. Brien would look after her. That is consistent with giving Ms.

Brien the financial capacity to do so. [ 62 ] This alone is not suspicious. As noted above, the authorities are clear that a testator has no obligation to draft a will in accordance with comments made earlier, or in accordance with any person’s view of what is proper or rational. In addition, while there was evidence that her mother wanted to help Ms. Helen Walsh, there was no evidence that this meant a gift of money. There was evidence from Mr. Francis Walsh that Mrs. Walsh felt Ms. Helen Walsh had enough money, but needed help in other aspects of her life.

Again, this allegation supporting the existence of suspicious circumstances was without foundation. [ 63 ] To constitute suspicious circumstances, I would expect to see some evidence of incapacity, pressure or coercion in relation to the contents of the Will. However, apart from the opinions and conjecture of the Contesting Parties, there was no evidence which addressed any of these issues. On the contrary, there was significant evidence of her capacity, which I will deal with below, and there were events recounted where by her actions and decisions she expressed independent thought.

For example, before her husband died, he provided instructions that a will be prepared for himself and a mirror document for Mrs. Walsh. Instead of following her husband’s direction, she did not sign the draft will. This was during the period just prior to the preparation of her own Will. [ 64 ] There was testimony concerning other circumstances where the Contesting Parties alleged suspicions that control was exerted over their mother by Ms. Brien. The evidence, however, disclosed that any of these events could more properly be described as advice and assistance by a child to an elderly parent. Ms.

Brien and her brother Francis Walsh worked in the family business. The offices were located in the family home where Mrs. Walsh lived. They spent more time with their mother because they were in her house every day. It was convenient, because they could provide the assistance necessary for an individual of her age and health. [ 65 ] In order to rebut the presumption in favour of validity of the Will in Phase II, the Contesting Parties were required to present evidence of suspicious circumstances contemporaneous with the events surrounding the preparation of the Will.

On the three issues required for suspicious circumstances, there has been a failure on the part of the Contesting Parties to present convincing evidence on any. [ 66 ] On the issue of the preparation of the Will, the only independent evidence supports due and proper preparation and execution. Any evidence to the contrary came only from the Contesting Parties, and on examination, was based on speculation and assumption, not personal knowledge.

There was nothing that could constitute suspicious circumstances about the due execution of the Will. [ 67 ] On the issue of the capacity of the testator, as shall be evident in my examination of this issue below, the evidence of the Contesting Parties was unsupported by every independent witness. As before, their evidence was based on self-serving

interpretations of generally innocent events. There were no suspicious circumstances raised on this issue. [ 68 ] On the issue of undue influence, or that Mrs. Walsh’s free will may have been unduly influenced by those around her, there are two facts to consider. First, there was no independent evidence of any undue influence. Second, most of the testimony surrounding this issue did not relate contemporaneously with the preparation and execution of the Will.

There was no evidence of suspicious circumstances concerning undue influence. [ 69 ] The Contesting Parties, having failed to raise convincing evidence of suspicious circumstances, have therefore failed to rebut the presumption in favour of validity of the Will. Nevertheless, I will, in the interest of completeness, address the remaining issues that would normally be addressed in Phase III – that of the mental competence of Mrs. Walsh, and whether she was subject to undue influence. Phase III - Competency [ 70 ] Of the seven children of Helen Walsh and John Walsh, only Ms. Coombs, Ms. Jacqueline Walsh and Ms.

Helen Walsh, felt their mother was not competent to provide instructions for and execute a will. The other four children, Ms. Brien, Mr. Francis Walsh, Ms. Marylou Walsh and Mr. Gary Walsh all testified that while their mother was suffering decline due to ageing, in 2013 she was capable of giving instructions to a lawyer, and understanding the import of the contents of her Will. [ 71 ] On this issue I heard testimony from all the children. Both sides called several witnesses, some of them medical professionals,

and there were several other witnesses as well. There were significant references to the medical files. In particular, the Contesting Parties relied on six documents from the medical file which they said supported their view. [ 72 ] Mrs. Walsh had a number of medical conditions by the fall of 2012 which began to affect her daily life. In October 2012, following a fall which did not result in a fracture, she was referred to the rehabilitation centre for assessment and therapy. During that period her drivers’ licence was suspended pending an assessment.

She passed, and was approved to have her licence reinstated with some restrictions. They included avoiding heavy traffic and no night driving. [ 73 ] Ms. Coombs first called Cathy Davis to testify. She is an occupational therapist, who administered a screening test for cognitive ability on Mrs. Walsh as part of her drivers’ assessment on September 24, 2012. She said the test showed mild cognitive deficiency, but was applied only in respect of her ability to drive. She emphasized that the test was only a preliminary screening tool, and not a diagnostic tool for cognitive disability. [ 74 ] Ms.

Davis was also asked about a cooking test administered and testified that a safety concern was raised when Mrs. Walsh forgot to turn off the stove until prompted. She said that this would likely underline the need for some supervision at home. However, she testified that Mrs. Walsh was independent in matters of daily living. She recommended supervision for bathing because of the risk of falling, and during cooking as well. Otherwise, she said she was independent in many areas.

She confirmed the tests she administered were only for driving assessment, and did not indicate overall cognitive competence nor did it indicate anything about her ability to give instructions on a will. [ 75 ] Ms. Coombs called Michelle Osmond, another occupational therapist. Ms. Osmond completed a driver evaluation of Mrs. Walsh on November 13, 2012, following referral by Ms. Davis. She completed a two-stage test, the first a clinical assessment in respect of the skills necessary for driving, and the second, a “behind the wheel” driving test.

On the first, while she exhibited some concerns about memory and visual and perception skills, Ms. Osmond was satisfied that Mrs. Walsh was suitable to proceed to the driving test. During the test, Ms. Osmond reported that Mrs. Walsh, while driving her vehicle, was a little hesitant in unfamiliar areas, and questioned whether she recognized signage. She testified that this could be due to a variety of issues, including visual impairment. Ms. Osmond said that Mrs. Walsh was aware of her limitations due to her age, and even before the licence suspension had self-imposed restrictions on her driving. Ms.

Osmond concluded that, with restrictions, Mrs. Walsh could be approved for driving, and her licence was reinstated on that basis. [ 76 ] Ms. Osmond emphasized that her testing was not applicable to overall cognitive ability, but only related to driving. During her testimony she was careful to state that from a cognitive skills perspective, driving is a very complex activity, and that an assessment of competence in driving was not transferrable for the purposes of assessing competence in other areas of life. Her conclusion was that Mrs.

Walsh had sufficient cognitive ability and the necessary skills to have her licence reinstated. [ 77 ] Ms. Gloria Greeley was the next to testify. Ms. Greeley is a registered nurse, and has worked as a certified diabetes counsellor for 11 years. Her evidence was limited to her work with Mrs. Walsh in managing her diabetes. She saw Mrs. Walsh twice in October 2013, some six months after the Will was signed. She described meeting with Mrs. Walsh and providing instruction on recording her blood sugar levels.

There were booklets used for blood readings and logging the tests that a patient would perform on him or herself. [ 78 ] She also described a 10-step procedure for a patient to make insulin injections. She said it was normal to review this procedure with patients who were required to inject themselves following the taking of a blood sugar reading. She said she explained the procedure to Mrs. Walsh, and while she had some difficulty remembering all the steps, she said it was a complex process and often required some time for many patients to master it.

She testified that it appeared she understood the recording of blood sugar readings in the booklets, and did not note any difficulty. She said, based on her notes, that “Mrs. Walsh is very independent and wants to stay in her own home for as long as she can”. [ 79 ] Dr. Sahar Iqbal is a physician and diabetes specialist, in practice in that capacity since 2007. She testified that Mrs. Walsh was her patient in respect of her diabetes and insulin injections. In a report dated October 2, 2013, she wrote that Mrs. Walsh was having some difficulties in controlling her sugars and managing her testing and injections.

She described that taking insulin without eating was a problem, as was the reverse: if one eats a lot and does not take insulin that can also be a problem. Both situations can lead to high and low sugar levels, and this could be dangerous. [ 80 ] Dr. Iqbal testified that she could not comment on Mrs. Walsh’s cognitive ability. She said managing diabetes with insulin is a very difficult regime for many patients and requires precise procedures. While she noted issues with memory and coping in her observations of Mrs.

Walsh, she could not comment on the significance of these observations on competence, and in any event, she had no knowledge of any follow-up. In answer to a question, she stated she did not believe Mrs. Walsh required admission to a hospital because of these difficulties. [ 81 ] Dr. Lorraine Dicks is a practicing psychologist at the Miller Centre in St. John’s working at the geriatric psychiatric centre. She has given expert testimony in other trials. She was not qualified for this trial to provide expert opinion evidence, and did not see Mrs. Walsh as a patient. Ms.

Coombs asked her about some of the tests used for the driving assessment, but in the absence of either a clinical examination or qualification as an expert, her evidence was of limited value. However she did provide a perspective on evidence heard earlier. In describing the skills necessary for daily life, she commented that a high level of functioning is indicated by the ability to drive. This supports the view of Ms. Osmond that driving is a very complex activity, and Mrs. Walsh was capable of driving, albeit with some restrictions. [ 82 ] Finally, Mr.

Darrell Lush was called to give evidence about some of the normal banking procedures. Mr. Lush is the branch manager of the Torbay Road branch of Scotiabank since January 2019. He was not familiar with Mrs. Walsh’s file, however, he was able to offer comment on the procedures and forms applicable to certain customers. [ 83 ] This was relevant, because the Contesting Parties pointed to the fact that the Plaintiffs had been added to their mother’s accounts at the bank, and suggested this indicated diminished capacity, or undue influence exerted on Mrs. Walsh by the Plaintiffs. Mr.

Lush testified that these procedures were common, and often done on the advice of a bank representative, depending on the

circumstances of the customer. Normally, he said, the representative would meet with the customer for 15 to 30 minutes and explain the implications of giving a person signing authority on an account. He said there was nothing unusual about family members having signing authority on an elderly parent’s accounts. [ 84 ] Besides calling these witnesses to support their position, the Contesting Parties referred to several issues that they felt reflected on her diminishing capacity. First, they drew a negative conclusion from some comments in the medical file about her difficulty in understanding things.

It was acknowledged by all the witnesses, including the independent witnesses, that she was hard of hearing. But none of the independent witnesses drew a connection between her hearing and her cognitive capabilities. Dr. Iqbal said it was sometimes difficult to explain things to Mrs. Walsh because of her hearing difficulties. However, Ms. Coombs argued that this meant that her mother was cognitively impaired. [ 85 ] Second, as support for their view that Mrs. Walsh had diminished intellectual capacity, the Contesting Parties consistently said she had achieved a very low level of education. Neither Ms.

Coombs nor Ms. Jacqueline Walsh gave their mother any credit for having attained a reasonable level in school. Ms. Jacqueline Walsh said that she couldn’t have spent much time in school because she came from a small community where school absenteeism was very high. She testified that “mother wasn’t like us – she didn’t have an education”. There was evidence, none of it conclusive, that their mother may have had as much as a high school education. Ms. Marylou Walsh testified that her mother had completed grade 11 equivalency.

Several of the notations in the medical file indicated the possibility that she had achieved a high school education. While the evidence on her educational attainment was inconclusive, there was no evidence that this was related to cognitive decline. [ 86 ] Third, Ms. Coombs testified that she felt her mother couldn’t read; however, she admitted to getting her large print novels because she “wanted her to try new things”. On April 28, 2015, Ms. Brien sent a message to Ms. Coombs thanking her for purchasing books for their mother.

This is not consistent with someone who says now that her mother couldn’t read or understand words. [ 87 ] Fourth, they said the suspension of her drivers’ licence supported their view that Mrs. Walsh had diminished capacity in other areas of life. Those views were contradicted by the very professionals who did the driving assessment. [ 88 ] Fifth, they testified that she did not understand percentages, the wording of the Will, the value of the estate, and the value of money generally. However, there was evidence that she was involved for many years in financial aspects of the family business.

One document presented in evidence was her income tax return from 1984 where she listed her occupation as “accounting clerk”. There was no support in the evidence for the allegation that she did not understand numbers or have an appreciation for money. The evidence was consistent with an ageing individual gradually passing over some of the functions of running a business to children who had more energy to deal with such matters.

Delegation of functions does not imply cognitive decline. [ 89 ] Sixth, they alleged that her intent was to treat her children “fairly”, and to the Contesting Parties, that meant “equally”. There was no evidence to support that

interpretation. In fact, there was evidence in the testimony of several of the children, and several of the independent witnesses, that she intended treating the children unequally, arising from the strains within the family. The Contesting Parties made assumptions about their mother’s intentions, without any real knowledge and in the absence of any supporting independent evidence.

In any event, she had no obligation to treat her children equally, and it is certainly understandable that the estrangements within the family could have motivated her to provide for differential bequests. [ 90 ] Finally, they relied on six documents from the medical file which they said proved diminished capacity. Ms. Jacqueline Walsh said she found references to dementia in these six documents. All of these documents were dated in the year prior to the preparation of Mrs. Walsh’s Will. Any substantive evidence of diminished capacity would have to be considered carefully.

I will review each of them in turn. [ 91 ] On February 20, 2012, Mrs. Walsh presented at the Emergency Room complaining of back pain. There is a reference in the admitting record to the word “dementia”. On a review of the record, the reference is one word with a question mark. It appears there was nothing behind this notation, and no reference to an assessment. The author of this record was not called to testify. [ 92 ] On September 24, 2012, there is a reference in the physiotherapist’s assessment to one of the tests used in the driving assessment and Mrs. Walsh’s low score.

It was only a brief notation on the form, as she was receiving a physiotherapy assessment for mobility only. The word “dementia” was not used, and the bulk of the form was focused on mobility only. The author of this record was not called to testify. [ 93 ] On October 2, 2012 there is a reference in a report by Dr. Isabel Woodman to “dementia”. The reference arose in connection with her drivers’ licence suspension, and Mrs. Walsh was referred to the occupational therapist for a driving assessment. Dr. Woodman did not testify. As I will relate below, her family physician, Dr.

Keith Noble, did not think it had any significance beyond driving. [ 94 ] A Discharge

Summary for Occupational Therapy dated October 9, 2012 completed by Ms. Davis makes reference to one of the tests done for the driving assessment and Mrs. Walsh’s low score. She also mentioned another test where her score was the highest possible. This came up in Ms. Davis’ testimony and she emphasized that it could not be used to assess general cognitive ability, but was used only as a screening tool for the purposes of driving skills. There was no reference to “dementia”. [ 95 ] On November 16, 2012 a report in the medical file prepared by Ms. Osmond referred to cognitive and perceptual decline.

When she testified, she confined the report’s significance to driving, and would not comment on general competence. The report goes on to say there was minimum concern with safety in the context of driving. She also recommended that her drivers’ licence be reinstated. There was no reference to “dementia”. [ 96 ] On February 12, 2014, about 10 months after the Will was signed, Dr. Iqbal said in a letter to Dr. Noble that it was difficult to explain things to Mrs. Walsh. Ms. Jacqueline Walsh testified that this was evidence of cognitive decline.

The full sentence reads: “She is very hard of hearing and it is very difficult to explain things to her”. In her testimony she explained that Mrs. Walsh’s hearing difficulties were only relevant in explaining the procedures necessary for managing her diabetes. There was no comment in the entire letter which related to cognitive abilities. There was no reference to “dementia”.

[ 97 ] While Ms. Jacqueline Walsh maintained that all of these documents referenced “dementia”, the reality was that only two of the six, out of a medical file of some 300 pages, contained this word or something similar. Those two references were not substantiated, and there was no follow-up. I am satisfied that upon review of these documents, coupled with consideration of all the evidence, there was no evidence of anything other than the slowing of general capacity due to normal ageing. [ 98 ] There were other documents in the medical file which gave a more benign and positive view of Mrs.

Walsh’s abilities and were not raised by the Contesting Parties. One example was a document entitled “Referral Form” dated November 20, 2012. At that time Mrs. Walsh was admitted to hospital because of her low sodium levels. The Referral Form was signed by Marie Mulcahy, registered nurse. On the second page aspects of cognitive functions were assessed. In it, Nurse Mulcahy noted that Mrs.

Walsh was oriented to time, person and place; she was able to follow simple commands; she was able to carryover newly learned information from one session to the next; there was no need for a consultation with neuropsychology; she did need an orthopedic consultation for a pain in her hip; she had no difficulty with social interaction or memory, and her mood was pleasant.

Nothing in this report was consistent with an assessment of even mild dementia. [ 99 ] Nurse Mulcahy was not called to testify; however, it indicates to me that the Contesting Parties were very selective in the documents they presented from the medical file. None of the independent witnesses, including the medical and health professionals, supported their

interpretation. As a result, I place little weight on the opinions of the Contesting Parties based on that file, except where they are buttressed by testimony of the authors of the documents. [ 100 ] Against the opinions of the Contesting Parties there was persuasive evidence to the contrary. The most compelling was testimony of Dr. Noble. He was Mrs. Walsh’s family physician since at least 1999 and he testified that he saw her frequently. He agreed she had a complicated diabetic condition. [ 101 ] He testified that she was an individual who had her own mind.

She was a nice lady, he said, who was skeptical of changes for the management of her diabetes. He said she was involved in her own care, and she questioned everything. She never took what the doctor said on blind faith. She had two significant health problems – her difficulty with hearing and her diabetes. [ 102 ] He testified that he was aware of the suspension of her drivers’ licence in the fall of 2012, but also noted that the licence was reinstated with restrictions. When he saw her for her drivers’ exam on December 4, 2012, the only problem he identified was deafness. Her cognitive capacity was not an issue.

He said if he saw a problem with her mental capability, he would have noted it. [ 103 ] He agreed that she had some level of dependency, but was consistent with normal ageing. But he saw nothing concerning cognitive disability. He was aware of Dr. Woodman’s reference to dementia related to a driving assessment, and some of the other references in the medical file to cognitive problems, but he said he did not agree that this was an issue that should be referred for further assessment. He had no problem referring her to Dr. Iqbal for management of her diabetes, but never saw a problem with her mind.

He was quite clear that she had her own mind. She asked him questions, and wanted to understand the nature of their interactions. [ 104 ] Dr. Noble was the only medical witness who actually remembered Mrs. Walsh as a patient. The others testified from their notes and Mrs. Walsh’s medical file. As a consequence I placed great weight on his testimony. He believed she was a strong woman able to make decisions for herself. He did not believe her thinking was affected by her medical conditions.

In addition, his comments were consistent with the views of the other independent witnesses called by both the Contesting Parties and the Proponents in this action. I have already reviewed the testimony of the independent witnesses called by the Contesting Parties. [ 105 ] On the issue of cognitive ability, I would recall the evidence of Ms. Hurley, the legal assistant in the office of Mr. Kelly, the lawyer who prepared Mrs. Walsh’s Will. She testified from her memory of Mrs. Walsh and from her review of the file. She was present when Mr. Kelly explained each paragraph of the Will to Mrs.

Walsh, and witnessed the placing of signatures on the Will. She said she saw no concern about her testamentary capacity. Ms. Hurley also testified that she was present some two years later when Mrs. Walsh signed a deed respecting the transfer of property on March 27, 2015. She said Mrs. Walsh was present alone, and understood what she was doing. [ 106 ] Mrs. Walsh went to the same hairdresser for almost 15 years before her death. Melissa Barker testified that she saw Mrs. Walsh every week for at least an hour, sometimes two or three.

She said she always came by herself, until she gave up driving around 2014 or 2015. She testified that they had a good relationship, and was very kind towards her. While most of their conversation was what could be termed “small talk”, occasionally she would talk about family issues and events. [ 107 ] Ms. Barker said Mrs. Walsh discussed the land at Torbay and spoke of the dispute with the government after some of their land was expropriated for a bypass highway. She spoke in general terms about her expectation that the government was supposed to pay for the land, and they ended up in Court.

She described being stressed about it until they won the case, and she was happy about it. [ 108 ] Ms. Barker said she spoke about her Will, which she had done after her husband died. She appeared to be aware that there would be some disputatious reaction. Ms. Barker testified that Mrs. Walsh said “after I die I hope I can come back and see the fight”. [ 109 ] Ms. Barker had some experience dealing with mental incompetency as her salon was at the Miller Centre, a facility for ageing patients. She said she saw many of her customers decline mentally as they aged. However, she said Mrs. Walsh was not one of them.

She said their conversations were engaging, she would remember discussions from week to week. She said she had her own opinions, and had her own mind. She was aware of the estrangement within her family, and related to Ms. Barker some of the incidents which reflected the difficulties among the children and their behaviour. Ms. Barker said she was always paid directly by Mrs. Walsh in cash, and she always gave a tip until 2015 when Ms. Helen Walsh started bringing her in and paid the fee. [ 110 ] Overall, Ms. Barker described Mrs.

Walsh as a sweet lady who developed a good rapport with her over the years she was a customer, and included in this assessment the period of time relevant to the making of her Will in April 2013. While Ms. Barker was not a professional with an expertise in assessing mental capacity, her description of their interactions was helpful and instructive in permitting the Court to draw conclusions on the key issue in this case. I found her testimony helpful, as she provided a non-medical perspective on her relationship with Mrs. Walsh, based on regular meetings over a long period of time. Her testimony described Mrs.

Walsh as an engaged, interested person right to the end. [ 111 ] Two of the children supporting the Will testified on Mrs. Walsh’s mental competence in dealing with the land in Torbay. Ms. Marylou Walsh and Mr. Francis Walsh testified about their mother’s involvement in the Quieting of Titles trial. Both testified that the legal advice was not very positive on the prospect for success, and their lawyer recommended a compromise with the Crown as adverse claimant. They discussed the issue with their mother, and based on her comments made the decision to reject settling and proceed with the trial. Mr.

Francis Walsh testified that their mother was kept apprised during each stage of the trial preparation and the trial itself. This would indicate a level of engagement by Mrs. Walsh that would belie any allegation of incompetence. [ 112 ] Ms. Brien testified about her mother’s transfer to a care facility, St. Patrick’s Mercy Home several months before her death. She was required to sign an Advanced Health Care Directive. The social worker advised that Mrs. Walsh was required to consent to the Directive. Mrs. Walsh signed the document on January 13, 2016. It was witnessed by her children, Ms. Brien, Ms.

Marylou Walsh and Mr. Francis Walsh, and by the social worker Mr. Kevin Newhook. Given the requirements for competence before an Advanced Health Care Directive may be signed, the involvement of the social worker was independent evidence that at this time, almost three years after the Will was signed, her mental state was not considered an issue. [ 113 ] Ms. Coombs testified on her mother’s competence to give instructions for a will.

Notwithstanding this entire trial was predicated on her view that her mother was not competent, she testified, when challenged on cross-examination, that her mother was competent to do a will, just not this Will. She felt the concept of “percentages”, and the language of “residue” and “bequest” were beyond her mother’s understanding, and she could not have given instructions for this Will as written. She maintained this position even after it was pointed out that the language was the lawyer’s, not her mother’s. [ 114 ] When Ms. Coombs and Ms.

Jacqueline Walsh testified, I found they held to their own narrative notwithstanding being presented with many inconsistencies and contradictions in their evidence and clear independent evidence to the contrary: • They both insisted that their mother was competent enough to recognize deficiencies in her husband’s will, but she was not competent to discuss details with her lawyer about her own. • They both knew the relationships between each of the children and their parents were not equal, but they refused to accept that their mother might have felt it appropriate to make a differential allocation to the children in her Will. • They both agreed their father made decisions on behalf of their mother because they felt she was totally dependent on him, but they did not accept that her refusal to sign the draft will based on her husband’s instructions was an expression of her own wishes and her independence. • They said that the Will was not an expression of their mother’s wishes but that of Ms.

Brien’s, because Ms. Brien had typed the “percentages document”. They refused to acknowledge the role of Mr.

Kelly in taking instructions from her. • They both testified that their mother was a simple and unsophisticated woman, and as a consequence could not understand the Will, could not do math, did not understand percentages or the value of the estate, but they accepted her decision that her Will had to be different from that of her husband. • They both insisted that their mother did not understand the value of things or the use of money, but refused to acknowledge that she had worked in the family business for many years, including as an accounting clerk. • Ms.

Jacqueline Walsh testified that the medical file was “enlightening” as she said it referred to the word “dementia” at least six times. In fact, the word “dementia” was used in relation to Mrs. Walsh only twice, and in each case the reference was tentative, without the benefit of a proper assessment. She also ignored entries in the file which took a view different from hers. • Neither could state exactly the level of their mother’s education, and minimized the significance of a certificate of nursing education in her name from the late 1950’s.

In fairness, there was no satisfactory explanation of the nature of this certificate. • They both testified that their mother should be living in a safer, more supportive environment, and blamed Ms. Brien for keeping her in the family home. They also agreed that it was their mother’s wish to stay in the family home, but they felt the family should override their mother’s wishes. • They both testified that she did not know the value of her estate, but refused to accept the significance of their mother concluding

that her Will had to deal with the contingency related to the Torbay land, and the possibility that the Court proceeding could have animpact on the estate’s value. [115] The position of the Contesting Parties concerning their mother’s testamentary competence was based on their opinion that theirmother was an unsophisticated and uneducated person without cognitive skills, or ability to understand explanations of concepts in awill. Their views were shaped by conjecture, speculation and assumption without the kind of knowledge that would come from alifetime of involvement with their parents and the family.

Their estrangement meant they did not have the knowledge, but they tried toconstruct a narrative which diminished their mother because they disagreed with the choices she made in her Will. The contradictionsand inconsistencies in their testimony seriously undermined their credibility. [116] The tests for testamentary capacity as set out in the Bayne case made four requirements. First, that the testator understood thenature of a will. Based on the evidence, I am satisfied that Mrs. Walsh knew that a will would dispose of her estate to her children as shedecided.

Second, while she may not have had a precise understanding of the value of the estate, she knew generally what she owned. This was clear from her awareness that the outcome of the Court proceeding concerning the Torbay land would have had a significantimpact on the estate’s value. Third, that she understood the nature of the competing claims that could arise. She was aware of theimpact of her husband’s will, and she wanted to do something different. She also made a comment to the hairdresser that she expectedthere would be “a fight” about the contents of her Will.

Finally, respecting a disorder of the mind, all of the medical and professionalevidence indicated that while she was declining physically, her mind had no disease or disorder which could have impacted her mentalcapacity. [117] It also must be noted, as set out in the Bayne case, that a testator may even be irrational, making dispositions for “frivolous . . . oreven bad motives”. The provisions of a will do not have to conform to the values, the logic or the sentiments of a disinterested observer,let alone those who have a direct interest in the estate.

In this case, the dispositions were not frivolous, and did not reflect bad motives. They did not conform to the wishes of several of the children. That did not impact the validity of the Will. [118] I am satisfied from all of the evidence, in particular that of the independent witnesses like Dr. Noble, Dr. Iqbal, Ms. Barker, Ms.Hurley, the nurse diabetes counsellor Ms. Greeley, and the occupational therapists Ms. Osmond and Ms. Davis, that Mrs. Walsh hadsufficient competence to have interacted with Mr. Kelly to both provide instructions and understand his explanations of the contents ofthe Will.

The Contesting Parties’ position on their mother’s testamentary competence is without any merit whatsoever. Phase IiI – Undue Influence [119] Ms. Coombs and Ms. Jacqueline Walsh, supported by Ms. Helen Walsh, considered that Ms. Brien and Mr. Francis Walshcontrolled their mother and exerted undue influence over her decisions, in particular, the contents of her Will. They maintained that theirmother during most of her life was controlled by her husband.

After his death, they testified that the Plaintiffs replaced their father inmaintaining influence over their mother. [120] The other children testified that their father was strict, but was not the controlling individual that the Contesting Parties said hewas. They said their mother was a strong, independent woman, contrasted with the view of the Contesting Parties who made her out tobe weak and mentally deficient.

They acknowledged she was declining physically, but maintained she was of sound mind, and of herown mind, at the time the Will was signed. [121] Undue influence sufficient to invalidate a will must meet a high burden. As the authorities provide, there must be independentevidence of coercion or fraud. The Court of Appeal in Melendy v. Drodge, 2017 NLCA 46 discussed the nature of evidence required toprove undue influence at paragraph 28: 28. Undue influence and fraud sufficient to invalidate a bequest are discussed in Stoneham & Tewkesbury (United District) c. Ouellet, (SCC), [1979] 2 S.C.R. 172 (S.C.C.).

Beetz J., for the Court, explained, at pages 198 to 199: Chateauguay Perrault ... wrote in Les Mélanges Bernard Bissonnette, 1963, at pp. 458 and 459: [Translation] Self-seeking attention to the testator (such as proofs of affection, flattery, care given or services rendered with exaggeratedalacrity, which may have concealed a bogus affection) and mere suggestions or advice to the testator are not in themselves acts ofsuggestion or undue influence that will make the will invalid.

However, the manoeuvring must end there; if it takes on the character offraud, it will be a basis for invalidating the will; as examples of this may be cited ... interfering in his affairs; ... in a word, deceit orcoercion in all their forms. ... [W]hat must be regarded as suggestion and undue influence will vary from one case to another, dependingon the specific circumstances of the case under consideration.

The testator's age, state of health and condition in life may have all playeda role in the degree of resistance he is able to make to the manoeuvres focused upon him. [122] Justice Hall dealt with the same issue in the Bayne case at paragraph 100: 100. On the subject of undue influence, at paragraph [37] of Colbourne, Roberts, J. accepts the test set out at pp. 30 and 31 of TheCanadian Law of Wills as follows: The burden of proof of undue influence is on the attackers of the will to prove that the mind of the testator was overborne by pressureexerted by another person. It is not enough to sh

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