2020 QCCA 840, 2020 QCCA 840

Bourke c. Serres 2020 QCCA 840 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-028018-182 (500-17-081176-144) DATE: June 29, 2020 CORAM: THE HONOURABLE GENEVIÈVE MARCOTTE, J.A. STEPHEN W. HAMILTON, J.A. LUCIE FOURNIER, J.A. MARC PHILIPPE BOURKE APPELLANT – Plaintiff v.

CLAUDIA SERRES LOUISE BOURKE ALLEN BOURKE RESPONDENTS –Defendants And SAMUEL GASKIN IMPLEADED PARTY – Impleaded party JUDGMENT [ 1 ] The Appellant appeals from a judgment rendered on November 12, 2018, by the Honourable Peter Kalichman of the Superior Court, District of Montreal, which dismissed his action seeking to annul his father’s will. [1] CONTEXT [ 2 ] The Appellant’s father, George Bourke, died on May 19, 2013, at the age of 83 years old. The present litigation deals with the validity of George’s will dated November 30, 2012 (the “2012 Will”). [2] [ 3 ] George was first married in 1953.

That marriage, which ended in divorce, produced three children: Louise, Allen and the Appellant, Marc. All three children have children of their own. Allen has six children: three adult children from his first marriage and three young children from his second. George married the Respondent Claudia Serres in 1981. Claudia was a widow and had a son, James Mott, from her first marriage. [ 4 ] George was in very good health until May 2012 when he began to experience difficulty speaking. Medical exams eventually revealed the presence of a brain tumour.

He was told that the tumour was likely dormant and was given a follow-up appointment in October 2012. [ 5 ] Throughout the summer and early fall of 2012, George had increasing difficulty finding the correct words and completing his sentences. [ 6 ] On October 26, 2012, Dr. Kevin Petrecca performed a biopsy of George’s tumour at the Montreal Neurological Institute, which indicated that the tumour was cancerous.

George began daily treatments of radiotherapy and chemotherapy on November 20, 2012, which continued until January 4, 2013. [ 7 ] On October 30, 2012, George released Allen and his wife Noemi from a mortgage loan he had extended to them which had a balance of $157,444.25, and released James from a mortgage loan with a balance of $15,047.33. The releases were signed before the impleaded party Notary Samuel Gaskin. The Appellant does not contest the validity of those releases. [ 8 ] On November 16, 2012, George and Claudia met with Notary Gaskin to discuss the preparation of a new will for George.

His previous will was signed on October 23, 2007. At this meeting, they also requested that Notary Gaskin prepare a power of attorney. [ 9 ] On November 30, 2012, George signed the 2012 Will and the power of attorney that Notary Gaskin had prepared.

[ 10 ] As stated before, George died on May 19, 2013. JUDGMENT UNDER APPEAL [ 11 ] Two issues were before the trial judge: 1. Whether George had the required capacity when he signed the 2012 Will 2.

Whether the 2012 Will should be annulled due to undue influence exercised by Claudia. [ 12 ] After a 5-day trial during which 11 witnesses testified, the trial judge concluded that the evidence did not establish on a prima facie basis that George was generally incapable during the period in which the 2012 Will was signed. [ 13 ] The trial judge noted that although George’s ability to speak and to find the appropriate words diminished over the fall and winter of 2012-2013, the medical evidence suggested that George’s speaking difficulties during this period were the result of dysphasia, which affected his ability to speak but not his ability to understand. [3] [ 14 ] The trial judge referred to a series of incidents and events that the Appellant pointed to as “red flags” marking George’s general incapacity, and noted that for many of them, there were alternative explanations for George’s behaviour that were, at the very least, equally plausible.

He agreed that some incidents, viewed in isolation, were consistent with the Appellant’s contention that George’s cognitive functions were affected. However, when viewed in the context of the evidence taken as a whole, the trial judge was satisfied that these isolated incidents were not sufficient to establish that George was incapable during the period in which the 2012 Will was signed. [4] [ 15 ] The trial judge also concluded that the facts and circumstances did not support the Appellant’s claim of undue influence.

Even if Claudia assisted George in the making of the 2012 Will, the judge believed that it was George's intention to make the 2012 Will. He concluded that on the whole, the claim of undue influence had no solid foundation in the evidence and amounted to pure speculation. He therefore dismissed the Appellant’s motion to institute proceedings, with judicial costs. ANALYSIS [ 16 ] The Appellant argues that the trial judge erred in law by failing to reverse the burden of proof onto Claudia once a prima facie case of undue influence was established.

He also argues that the trial judge committed palpable and overriding errors in concluding that George had the required capacity to sign the 2012 Will and in deciding that Claudia did not exercise undue influence on George. 1.

The burden of proof in matters of undue influence [ 17 ] The Appellant argues that there is a reversal of the burden of proof in matters of capacity once the person arguing that the testator was incapable establishes on a prima facie basis that the testator was generally incapable during the period in which the will was signed, and that there should be a similar reversal of the burden of proof with respect to undue influence. [ 18 ] The Court of Appeal dealt with these issues in its judgment in Brusenbauch c. Young , [5] which was issued after the Appellant filed his brief.

Justice Bich, writing for the Court, explained that there is no reversal of the burden in matters of undue influence. Moreover, even in cases of testamentary incapacity, the reversal of the burden after the demonstration of a prima facie case is simply a “manner of speaking” and does not discharge the party who seeks the nullity of a will to establish, on a balance of probabilities, the incapacity of the testator at the time the will was signed. [6] 2.

George’s capacity [ 19 ] The Appellant argues that the trial judge erred, as a question of law, in not finding that the existence of significant difficulties in communication was itself sufficient to demonstrate a prima facie case that George was incapable of consenting to the 2012 Will. [ 20 ] The trial judge considered George’s difficulties to communicate, but concluded that they did not lead to a conclusion of diminished mental capacity since they did not affect his ability to understand. [7] This is consistent with the testimonies of Dr. Petrecca, a brain cancer surgeon, and Dr.

Leonard Welik, George’s family doctor. Dr. Petrecca testified that George was suffering from an expressive dysphasia which affected his ability to speak, as opposed to a cognitive dysphasia. He testified that it was “frankly very, very obvious that there was no formal or informal testing required” to evaluate his cognitive functions and explained that he interacted with George and “he seemed very straightforward” to him. [8] Dr. Welik saw George less than 24 hours after the 2012 Will was signed, and testified to the Court that “he was in right mind”: his comprehension and his judgment were “very good” and Dr.

Welik did not feel the need to give George a formal cognitive assessment. [9] Moreover, the trial judge noted there is no reference in George’s medical records to any cognitive impairment such as confusion or disorientation before March 2013. Finally, the trial judge noted that Notary Gaskin also testified that he saw no reason to doubt George’s capacity.

The Appellant does not demonstrate any error in the trial judge’s analysis. [ 21 ] The Appellant also presents a list of “red flags” in George’s behaviour and claims that they should have led the trial judge to conclude that George was incapable at the time of the signing of the will. The same list was presented to the trial judge. The trial judge found that some incidents could be explained, while others, taken in isolation, supported the Appellant’s argument. However, he concluded that these isolated incidents, viewed in the context of the evidence taken as a whole, were not sufficient to establish incapacity.

[ 22 ] Other than the fact that he does not agree with the trial judge’s conclusion, the Appellant does not demonstrate any error in the trial judge’s analysis. [ 23 ] There is therefore no reason for the Court to intervene. 3. Undue influence [ 24 ] The Appellant submits that the trial judge erred in assessing the weight that should be given both to the direct evidence of undue influence and the presumptions that should have been drawn from that evidence.

He starts by arguing that George was old and in failing health and he was undergoing aggressive treatment, such that he was vulnerable to undue influence. [ 25 ] He then presents a series of factual conclusions that he says should have been drawn by the trial judge: • Claudia controlled all contacts between George and his family and isolated him from his family; • Claudia participated in all discussions between the notary and George and drafted many provisions of the 2012 Will, without informing the Appellant about the visits to the notary or the execution of the 2012 Will; and • the 2012 Will made dramatic changes in the terms of George’s wishes without having a clear and coherent rationale to explain the changes. [ 26 ] The Appellant submits that those factual findings all support the conclusion that Claudia unduly influenced George into signing the 2012 Will and argues that the trial judge committed a palpable and overriding error by concluding otherwise. [ 27 ] The trial judge considered the evidence as a whole and rejected the factual findings proposed by the Appellant. [ 28 ] The trial judge found that the evidence did not establish that George was isolated from his family during the fall and winter of 2012/2013; in fact, a number of witnesses, including the Appellant, testified that George and Claudia had many lunches with family members as well as several family gatherings during that period. [10] [ 29 ] Moreover, the trial judge was of the view that, although it was clear that Claudia had assisted George in the making of the 2012 Will, George had been the one making decisions during the meetings with Notary Gaskin.

This conclusion is supported by the testimony of Notary Gaskin, who found George to be alert and engaged, very involved in the discussions and able to communicate his wishes. [ 30 ] The trial judge found nothing incoherent in George’s last wishes as expressed in the 2012 Will. [11] The will he had signed in 2007 provided for particular legacies to Claudia of his RRSPs and other retirement plans and a right of habitation in his house for one year, with his three children as universal legatees.

The 2012 Will maintained those provisions but provided that an account at TD Waterhouse was to be divided as follows: • a particular bequest to Claudia of $450,000; • a particular bequest to each of Allen’s three adult children of $150,000; and • the balance of the account to be divided among George’s children, with Allen receiving 50% and Louise 28.5 % and the Appellant 21.5 %. [ 31 ] The trial judge found the particular bequest to Claudia of $450,000 to be quite comprehensible: it was roughly the amount George was contemplating spending on a condominium in the months before his death and he knew that she would need somewhere to live since he was not leaving her the home they shared but only a right of habitation for one year.

As for the bequests to Allen and his adult children, the trial judge was satisfied with the evidence that George was concerned about Allen’s family. There was also evidence that Allen was not on good terms with his adult children, which could explain why George would make particular legacies to them. [ 32 ] The Appellant is also of the view that the trial judge erred by failing to consider the cumulative effect of the influence exercised on George at this time of his life.

He pleads that the trial judge should have considered George’s age, state of health and condition in life, since all of these factors played a role in the degree of resistance he was able to make to the alleged undue influence. [ 33 ] The trial judge knew George’s medical condition and explicitly took notice of these factors – including George’s difficulty to communicate – and concluded nonetheless that the Appellant had not demonstrated, on a prima facie basis, any undue influence. [ 34 ] When the appellant raises question of fact, the Court ‘ s task is to verify whether the trial judge’s factual conclusions were supported by evidence. [12] In the present case, the trial judge set out the Appellant’s submissions in his judgment and addressed them at length.

The Appellant does not demonstrate any error in that regard. He only asks the Court to reassess the evidence adduced at trial and substitute its opinion for that of the trial judge, which is not the Court’s role. Justice Bich’s conclusion in Brusenbauch c. Young is equally applicable here: [48] In short, confronted with conflicting evidence and many impenetrable grey areas, the judge concluded that the appellant did not discharge his evidentiary burden to establish incapacity or undue influence.

In the absence of a material error of law or a palpable and overriding error of fact, the Court cannot interfere with this conclusion and should dismiss the appellant’s invitation to retry the case. [13] FOR THESE REASONS, THE COURT: [ 35 ] DISMISSES the appeal, with costs.

GENEVIÈVE MARCOTTE, J.A. STEPHEN W. HAMILTON, J.A. LUCIE FOURNIER, J.A. Mtre André J. Barrette Mtre Daniel Grodinsky BORDEN LADNER GERVAIS For Appellant Mtre David Joanisse Mtre Lucy-Maude Lachance LCM AVOCATS INC. For Claudia Serres Date of hearing: June 12, 2020