2022 QCCA 536, 2022 QCCA 536

Krivokapic c. Josephe Boss 2022 QCCA 536 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL N° : 500-09-029292-216 (500-17-103960-186) DATE : April 19, 2022 CORAM : THE HONOURABLE MANON SAVARD, J.c.Q. ROBERT M. MAINVILLE, J.C.A. PETER KALICHMAN, J.C.A. MILICA KRIVOKAPIC APPELLANT – Defendant/cross-plaintiff c.

SYLVIA KATERINA JOSEPHE BOSS RESPONDENT – Plaintiff/cross-defendant et HELEN HESLOP IMPLEADED PARTY – Impleaded party/cross-defendant JUDGMENT [ 1 ] The Appellant, Milica Krivokapic, appeals from a judgment rendered November 16, 2020, by the Superior Court (the Honorable Brian Riordan), declaring null and void the notarial will of her late husband, Valentin Boss, on the basis of undue influence. [1] I. CONTEXT [ 2 ] Valentin Boss (the Testator ) was an accomplished professor and author.

Although he also taught at other institutions, he was a member of the faculty of history at McGill University for several decades until his retirement in 2012. [ 3 ] The Respondent, Sylvia Katerina Josephe Boss (the Daughter ), is the Testator’s only child. Her mother, the Impleaded Party, Helen Heslop (the Mother ), was married to the Testator for 22 years before their divorce was finalized in 1989. [ 4 ] The Testator and the Appellant met in 1988 and began a romantic relationship the following year. They were married in 2007. [ 5 ] Later that same year the Testator was diagnosed with prostate cancer.

He received treatment for his cancer as well as for a number of other serious medical conditions over the following 8 years. [ 6 ] In November 2010, the Testator signed the will that is at the heart of this dispute (the Will ). [2] It provides that the entirety of his estate be left to the Appellant unless she predeceases him or dies within 30 days of his death, in which case it is to be placed in a trust and used to provide for the needs of the Daughter. [ 7 ] On November 29, 2015, the Testator died.

Since the Appellant survived him, the entirety of his estate went to her to the exclusion of the Daughter. [ 8 ] In June, 2018, the Daughter instituted proceedings before the Superior Court to have the Will declared null and void on two distinct grounds. First, she argued that the Testator lacked the required mental capacity to testate. Second, she maintained that the Testator was unduly influenced by the Appellant. The Appellant filed a cross-demand, claiming damages for libel and defamation. Both parties claimed damages for abuse of proceedings. [ 9 ] The trial lasted 10 days.

Over that time the Judge heard and read the testimony of numerous experts and factual witnesses. [ 10 ] Much of the non-expert evidence introduced by the parties focused on the conflicting roles of the Appellant and the Daughter. While they appear to have gotten along well for a number of years, at one point in time the situation changed dramatically and they were openly hostile and antagonistic to each other. [ 11 ] The Appellant maintains that the evidence shows the Daughter to have been uncaring and selfish in her relationship with the Testator.

According to her, the Daughter, who has experienced mental health issues over the years, was a turbulent force in the Testator’s life. She asserts that as the Testator’s illness progressed, her presence was harmful to him. This explains, in her view, why the

Daughter and the Testator were estranged. [ 12 ] The Daughter denies that she was estranged from the Testator. Although she does not question the Appellant’s devotion to the Testator throughout his illness, she argues that the evidence shows her to have been manipulative and controlling. She blames the Appellant for the fact that she, along with others who cared deeply for the Testator, were kept away from him in the months and years before his death. II. THE JUDGMENT [ 13 ] In a detailed judgment, the Judge rejected the Daughter’s argument regarding the lack of capacity to testate.

In his view, the Testator was mentally competent to execute the Will. [ 14 ] However, the Judge agreed with the Daughter that the Testator was unduly influenced by the Appellant and that the Will must therefore be declared invalid. This is the only conclusion that is at issue on appeal. [ 15 ] After summarizing the state of the law in regards to undue influence, the Judge addressed the testimony of the Appellant, the Daughter and the Mother. For different reasons, the Judge found that none of them was particularly credible.

As a result, he indicated that “the great majority of the reliable evidence in this excessively fact-driven matter must come from witnesses other than the parties.” [3] [ 16 ] His analysis of the evidence is divided into seven themes, each of which he found to be relevant to a determination of undue influence in this case. The themes are: (

i) The exclusion of the Daughter from the Will; (ii) The Appellant’s attitude towards the Daughter; (iii) The Appellant’s sense of entitlement to the inheritance; (iv) The Testator’s weakened cognitive state; (

v) The degree to which the Testator was dependant on the Appellant; (vi) The degree to which the Appellant controlled the Testator’s social contacts; and (vii) The degree to which the Appellant controlled the Testator’s finances. [ 17 ] Based on his analysis, the Judge determined that a presumption of undue influence had been established.

He thus concluded that the Will was null and void and declared that the “succession of the Late Valentin Boss will devolve according to the legal rules for the devolution of intestate successions”. [4] As a result of this conclusion, the Daughter receives two-thirds of the Testator’s estate while the Appellant receives the remaining third. [5] [ 18 ] Finally, the Judge dismissed the Appellant’s cross-demand and reserved the parties’ rights to present their respective claims for procedural abuse, which they ultimately chose not to do. III.

GROUNDS OF APPEAL [ 19 ] The Appellant raises four grounds of appeal. [ 20 ] First, she argues that the Judge erred in framing the debate. She maintains that the central focus of the Judge’s analysis was to determine why the Testator excluded the Daughter from the Will and not whether the evidence supported the claim that she had exerted undue influence over him.

According to the Appellant, the Judge framed his analysis in this way on the basis of an improper and subjective premise, namely that for a father to exclude his only child from his will one would expect to see evidence of major confrontations or acts of cruelty on the part of the child. She argues that the absence of such evidence led the Judge to adopt an implicit bias towards a finding of undue influence to explain why the Testator had excluded the Daughter from the Will.

According to the Appellant, the Judge’s reliance on this false premise acted as a distorting lens which coloured his analysis and his appreciation of the evidence. [ 21 ] Second, the Appellant maintains that the Judge erred by applying the wrong burden of proof. She argues that while the Judge recognized that the Daughter was required to establish undue influence on a balance of probabilities, he failed to hold her to that standard.

The Appellant analyses three of the factual elements that lead the Judge to conclude that the Appellant had unduly influenced the Testator and for each one, demonstrates how, in her view, he fails to apply the appropriate burden of proof. [ 22 ] Third, the Appellant submits that the Judge erred in his evaluation of the medical evidence and in concluding that the Testator was susceptible of being influenced. According to her, the Judge committed a palpable and overriding error of fact in concluding that the Testator was cognitively diminished when he executed the Will.

Furthermore, she submits that he erred in law in determining that such diminished cognition made the Testator more susceptible to undue influence because, according to her, only an expert could reach such a conclusion. [ 23 ] Fourth, the Appellant argues that the Judge erred in failing to ensure her right to a fair trial.

She points to several examples of the manner in which the Judge managed the proceedings as evidence of his implicit bias. [ 24 ] The Daughter argues that the Judge thoroughly analysed the evidence before him and that the Appellant has failed to identify any palpable and overriding errors in the Judgment. In her view, the Appellant is merely asking the Court to substitute its appreciation for that of the Judge, which is not an appropriate basis for an appeal.

IV. APPLICABLE PRINCIPLES [ 25 ] There is nothing improper or illicit in attempting to influence a person in the making of their will. [6] However, when it is established that the testator was subjected to undue influence, the will can be annulled. Undue influence, which has been likened to fraud, can be found in lies, slander, deceit, trickery or deliberate misrepresentations, which cause the testator to make decisions regarding their will that they would not otherwise have made. [7] [ 26 ] The party alleging undue influence has the burden to prove it.

Such proof will most often be made by presumption since the person exerting undue influence will rarely do so in the open and the person being influenced can obviously not testify. [8] Presumptions are left to the discretion of the judge.

To be taken into consideration, they must be serious, precise and concordant. [9] Mere suspicion that the testator was unduly influenced is not enough to annul a will. [10] [ 27 ] Examples of conduct that may lead to a conclusion of undue influence include: inciting animosity against a presumptive heir, alienating family and friends, interfering in the testator’s affairs, acting in such a way as to exercise complete control over a testator’s will, such as by intercepting their mail, or refusing to summon a notary to prepare a codicil or new will. [11] [ 28 ] In evaluating the impact that undue influence may have had, a court can take into consideration the testator’s ability to resist such efforts which may be a function of their state of health or of their degree of isolation or seclusion. [12] As a result, evidence regarding the testator’s capacity can be relevant in analysing undue influence. [13] V.

ANALYSIS A. Did the judge err in his framing of the debate? [ 29 ] The Appellant maintains that rather than focusing on whether or not the evidence supported a finding of undue influence, the Judge sought to answer a single question: “Why would Professor Boss treat his daughter the way he did in the Will, effectively disinheriting her?” [14] [ 30 ] According to the Appellant, this improper framing of the debate demonstrates the implicit bias in the Judge’s analysis.

More specifically, she argues that the Judge imposed his own personal belief that it is somehow unnatural to disinherit one’s only child and that for this to have occurred, there must have been some “major confrontation” or some act of cruelty or dishonesty. [15] Since there was no evidence of such a rupture in the relationship between the Daughter and the Testator, the Appellant argues that the Judge sought out another explanation, namely: undue influence. [ 31 ] According to the Appellant, the Judge was so singularly focused on finding evidence to support a conclusion of undue influence that he failed to properly consider the overwhelming evidence supporting the view that the Will was a true reflection of the Testator’s wishes.

In particular, she argues that he diminished and distorted the evidence that the Testator had ample reason to designate the Appellant as his universal legatee and dismissed evidence that the Daughter benefitted from a significant inheritance from her maternal grandfather and, therefore, was less in need of the Testator’s money.

In her view, he thus committed palpable and overriding errors of fact which justify the Court’s intervention. [ 32 ] The Appellant has failed to convince the Court that the Judge committed any palpable and overriding error in his framing of the debate. [ 33 ] The central focus of the Judge’s analysis was to determine if the Daughter had met her burden to establish undue influence. [16] One of the many factors he considered in the context of that analysis was why the Daughter had been excluded from the Will. [17] This question was not inappropriate.

In considering whether or not there had been undue influence, the reason the Testator chose to exclude the Daughter could have had significance. [18] [ 34 ] It is true that the Judge makes a general assumption about the circumstances in which a parent might choose to exclude their only child from a will. At paragraph 99 of the Judgment, he writes: [ 99 ] It is surprising, but certainly not unheard of, to see a father exclude his only child from his will.

For such a thing to happen, one would expect to see evidence of major confrontations and blow-ups between two, or out-of-the-ordinary acts of cruelty or dishonesty on the part of the son or daughter, or some other behaviour that would justify such a strong renunciation of the normal parent-child bond. [ 35 ] This observation is not helpful to the analysis of undue influence in this case. However, the Appellant has failed to demonstrate that it created an implicit bias.

Furthermore, the Judge’s observations regarding the relationship between the Testator and the Daughter went well beyond general assumptions; he made numerous references to the evidence supporting the view that the Testator loved the Daughter very much and was concerned for her well-being. [19] [ 36 ] At any rate, the fact that the Judge assumed that the Testator would not exclude the Daughter from the Will unless there had been some sort of falling-out between them or evidence of cruelty, did not make him more disposed to concluding that there had been undue influence on the part of the Appellant.

This was a possibility but it was not the only one. The fact that the Judge ultimately concluded that no other explanations “seem plausible” does not mean that he was not open to considering them. [20] [ 37 ] As regards the suggestion that the Testator may have excluded the Daughter from the Will because she did not need his money, there is very little to support such an argument and no evidence whatsoever that this was a consideration for the Testator. There was little evidence regarding the Daughter’s financial situation.

The only funds to which she clearly had access were in a testamentary trust that the Testator created to manage an amount that had been left to her by her maternal grandfather. The Judge did not fail to deal with this aspect of the evidence. He merely concluded that since the funds did not come from the Testator, the creation of the trust could not explain the Testator’s decision to leave the Daughter nothing in the Will. [21] [ 38 ] Contrary to what the Appellant argues, this was not a case where the Judge concluded that there had been undue influence merely

because he found nothing else to explain the Testator’s decision to exclude the Daughter. [22] His conclusion was based on a thorough analysis of the evidence and his determination that the Daughter had met her burden. He summarized his findings at paragraph 186 of the Judgment by identifying a number of factual considerations that led him to conclude on a balance of probabilities, that the Testator had been unduly influenced: a. It is surprising and essentially unexplained by any communication emanating from Professor Boss why he would to all intents and purposes disinherit Sylvia; b.

Milica had a strong antipathy towards Sylvia and felt that she did not deserve to inherit anything from her father; c. In contrast to Sylvia’s lack of just entitlement, Milica felt, in light of her devoted services to her husband, that she deserved to inherit the major part of his estate; d. Although Professor Boss was mentally competent to execute the Will, there was likely some cognitive diminution by November 2010; e. Professor Boss had developed physical and moral dependency on Milica by the time of the execution of the Will; f.

Milica played the role of gate-keeper for her husband’s social contacts, both physical and written; g. Milica had knowledge of the great majority of her husband’s written communication and undoubtedly exercised some control over it. [23] [ 39 ] There is no evidence to support the Appellant’s position that the Judge’s framing of the question at issue caused him to rely more heavily on the testimony of certain witnesses, like Caroline Dieluweit, the daughter of the Testator’s cousin, and to diminish the value of evidence supporting the Appellant’s view that he had ample reason for making her his sole legatee.

The Judge’s appreciation of the evidence, particularly in regards to credibility, deserves a high degree of deference and the Appellant has failed to establish any palpable and overriding errors that would justify the Court’s intervention. Ultimately, what she proposes is that the Court adopt an alternative

interpretation of the evidence and wholly different views regarding the credibility of the many witnesses. That is the not the role of a court of appeal. [24] [ 40 ] Faced with conflicting evidence, the Judge came to the conclusion that the Daughter had met her burden to establish undue influence. Absent a palpable and overriding error, there is no basis for the Court to intervene. B.

Did the Judge err in applying the wrong burden of proof? [ 41 ] The Judge correctly notes that the party seeking to establish undue influence must do so on balance of probabilities. [25] However, in the Appellant’s view, he failed to impose this burden on the Daughter and instead applied a variety of lower standards. [ 42 ] The Appellant attempts to demonstrate this point by reviewing three key facets of the Judge’s analysis: (

i) First, in the

section on the Appellant’s attitude towards the Daughter, she points out that the Judge describes the question at issue as being whether the Appellant would “likely have attempted” to have the Testator exclude the Daughter from the Will [26] instead of whether the Daughter had established on a balance of probabilities that she had in fact done so by fraudulent or deceitful means; (ii) Second, in the

section dealing with the Appellant’s sense of entitlement to inherit, the Judge concludes that she was “ready to attempt to influence her husband with respect to the contents of the Will when they did not suit her” and not that she did in fact exert such influence, which was the burden the Daughter had to meet; [27] and (iii) Third, in the

section of the Judgement dealing with the Appellant’s control over the Testator’s social contacts and correspondence, the Judge concludes that there was an “opportunity” for coercion. [28] He does not, however, conclude on a balance of probabilities, that there had been actual coercion by the Appellant. [ 43 ] Accordingly, the Appellant argues that the Judge erred in law by failing to apply the proper burden of proof. [ 44 ] The Court does not agree. [ 45 ] The Appellant’s argument is based on an inaccurate and incomplete reading of the Judgment.

The Judge’s conclusion was a function of his analysis of the entire body of evidence and not the examination of individual acts in isolation. It was not necessary for him to conclude on a balance of probabilities that each of the individual patterns of conduct supported the argument of undue influence provided that collectively they gave rise to a serious, precise and concordant presumption to that effect.

This is precisely the conclusion he reached. [ 46 ] Furthermore, the Judge clearly distinguished between evidence that directly supported the conclusion that the Appellant likely pressured the Testator to exclude the Daughter from the Will and evidence that merely made such efforts more likely to succeed. It was the combination of these factors that led the Judge to conclude on a balance of probabilities, that the Testator had been unduly influenced.

This is clearly demonstrated in paragraph 187 of the Judgment: [187] Milica’s hostility towards Sylvia and her aversion to the idea that she should inherit anything are strong indicators that she likely pressured her husband to exclude his daughter from his testament when he otherwise would not have done so. The other factors analyzed show both a modus operandi and the facilitating circumstances that are consistent with such an objective. This ensemble of concordant facts paves a path that leads to a serious and precise presumption of undue influence, and that is the Court’s conclusion.

[ 47 ] The Judge thus committed no error in identifying and in applying the appropriate burden of proof. C. Did the Judge err in his evaluation of the medical evidence and in concluding that the Testator was susceptible of being influenced? [ 48 ] Appellant maintains that the Judge committed palpable and overriding errors of fact in concluding that the Testator’s cognitive functions were diminished when he executed the Will. She identifies four such errors, namely: (

i) The reliance on the Judge’s personal beliefs about how the Testator must have felt; (ii) The reference to a doctor’s letter sent one year after the Will was executed; (iii) The inappropriate reference to Lewy body disease; and (iv) The reference to a doctor’s letter sent over three years after the execution of the Will. [ 49 ] The Appellant adds that in basing himself on this evidence to conclude that the Testator was susceptible to undue influence, the Judge usurped the role of an expert thus compounding his errors of fact with an error of law. [ 50 ] The evidence regarding the Testator’s cognitive functioning at the time he signed the Will is not unequivocal.

However, the Appellant has failed to convince the Court that the Judge committed an error in determining that the Testator had suffered some degree of cognitive diminishment or that this condition made him more susceptible to undue influence. [ 51 ] Contrary to what the Appellant suggests, the Judge did not rely on his personal beliefs in reaching a conclusion regarding the Testator’s cognitive state.

His observation that the “debilitating medical incidents” that the Testator had endured over the three year period leading up to the signing of the Will “had to take a toll on him” was not central to his reasoning and, moreover, is consistent with the evidence. [ 52 ] While it is true that the Judge refers to letters written in 2011 [29] and 2014 [30] (i.e. after the Will was signed) by doctors who had treated the Testator, they each make observations that relate to the relevant period and the Judge thus committed no error in relying on them.

Furthermore, it bears noting that the doctors’ observations are based, in part, on what they had been told by the Appellant and possibly the Testator himself. [ 53 ] Furthermore, contrary to what Appellant argues, even though the Testator was only diagnosed with Lewy body disease in 2011, there is evidence to suggest that it had already begun to have an impact on his cognitive functions at the time the Will was signed in November, 2010. [31] [ 54 ] At any rate, even if the Judge had not relied on these four elements of evidence, there is enough support for his conclusion of diminished cognitive function in the written and verbal testimony of Simon Berrebi, Kevin Colgan, Erik Reed, Georgii Mikula and Caroline Dieluweit. [ 55 ] As regards the connection between diminished cognition and the Testator’s susceptibility to influence, the Judge’s conclusion is supported not only by the doctrine [32] but by the evidence as well.

For example, Kevin Colgan notes on a visit a year or two prior to the signing of the Will, that the Testator was “uncharacteristically meek”. [33] In addition, Caroline Dieluweit, who visited Montreal yearly and stayed with the Testator and the Appellant, noted that over time, he became “weaker and weaker and less and less able to stand up to” the Appellant. [34] Contrary to what the Appellant argues, there is no reason such a connection can only be established through expert evidence. [ 56 ] Finally, even if the Appellant had established an error in this aspect of the Judgement, which she has not, there is nothing to suggest that such an error would be determinative.

It must be remembered that the Testator’s susceptibility to undue influence was only one of seven themes in the evidence on which the Judge based his conclusion of undue influence. D. Did the Judge err in failing to ensure the Appellant’s right to a fair trial? [ 57 ] The Appellant submits that her right to a fair trial was violated by the Judge as a result of an implicit bias. She cites the following examples: (

i) The Judge allowed the Daughter to deviate from the directives that had been set down in case management conferences and to essentially monopolize the time that had been set aside for the hearing; (ii) The Judge ignored his own directives by allowing the Daughter to exceed the page limit for written submissions; and (iii) Despite his ruling of May 20, 2020, the Judge failed to give the Appellant extra time to present her evidence.

Quite the contrary, he constantly rushed Appellant’s lawyer despite the disproportionate time accorded to the Daughter. [ 58 ] The Appellant’s arguments regarding her right to a fair trial are entirely unfounded. [ 59 ] In principle, a party that wishes to raise the issue of a judge’s appearance of bias in the conduct of the proceedings, must do so at the first available opportunity. [35] This gives trial judges the opportunity to react and, if need be, to recuse themselves. Based on the Appellant’s arguments, it would appear that her concerns regarding bias arose early on in the trial.

However, she waited until the appeal to raise them for the first time. This is reason enough to dismiss this ground of appeal. [ 60 ] Furthermore, it is well established that a trial judge has broad discretion in regards to the production of evidence. The Court will only intervene where it is clear that the judge did not act in a fair and balanced way. [36] There is nothing to suggest that that was the case here.

[ 61 ] The Appellant failed to identify a single instance where her right to examine was cut short by the Judge or a request for additional time was refused. It is clear that the Judge did his best to manage court time as efficiently as possible and, to that end, attempted to ensure that the lawyers respected their time estimates. However, the Appellant has failed to demonstrate that his management was less than even-handed. [ 62 ] Furthermore, contrary to what the Appellant alleges, the Daughter did not exceed the page limit for written submissions as neither party included footnotes in their page counts.

FOR THESE REASONS, THE COURT : [ 63 ] DISMISSES the appeal with legal costs. MANON SAVARD, J.c.Q. ROBERT M. MAINVILLE, J.C.A. PETER KALICHMAN, J.C.A. Mtre Antoine Aylwin Mtre Jonathan Feingold FASKEN MARTINEAU DUMOULIN For the Appellant Mtre André Lavigne ME ANDRÉ LAVIGNE, AVOCAT For the Respondent and for the Impleaded Party Date of hearing : February 1, 2022