2017 ONSC 6253, 2017 ONSC 6253

CITATION : Levitz v. Hillel Lodge Long Term Care Foundation , 2017 ONSC 6253 OTTAWA COURT FILE NO.: 33780/16 DATE: 2017/10/20 SUPERIOR COURT OF JUSTICE - ONTARIO RE: Ingrid Levitz, Executrix of the Estate of Sarah Stoller, Applicant AND The Hillel Lodge Long Term Care Foundation, The Hillel Lodge Long Term Care Centre, Nancy-Lynn Stoller and Bryan Michael Stoller, Respondents BEFORE: Madam Justice Robyn M. Ryan Bell COUNSEL: Yasmin M. Vinograd, Counsel for the Applicant Martin Z.

Black, Counsel for the Respondent The Hillel Lodge Long Term Care Centre Joel Reinhardt, Counsel for the Respondents Nancy-Lynn Stoller and Bryan Michael Stoller Russell Kronick, for the Respondent The Hillel Lodge Long Term Care Foundation HEARD: September 14 and 15, 2017 reasons for decision Overview [ 1 ] Sarah Stoller passed away on May 2, 2016 at the age of 96. She left an estate valued at nearly $7,000,000. Under Ms. Stoller’s August 10, 2010 will (the “Will”), The Hillel Lodge Long Term Care Centre is the beneficiary of a brass candelabra.

The Hillel Lodge Long Term Care Foundation is the sole beneficiary of the residue of the estate. [ 2 ] The original Will has not been found. The sole issue to be determined on this application is whether the presumption that Ms. Stoller intentionally destroyed the Will has been rebutted. Nancy-Lynn Stoller and Bryan Michael Stoller, Ms.

Stoller’s next-of-kin (and niece and nephew, respectively), maintain that there is insufficient evidence to rebut the presumption on the balance of probabilities. [ 3 ] The parties agree that in the event I find that the presumption has not been rebutted, a revocation of the Will results in an intestacy. [ 4 ] For the following reasons, I find that there is sufficient evidence to rebut the presumption that Ms. Stoller intentionally destroyed the Will. Background Facts [ 5 ] Ms. Stoller executed her previous will in May 2004. The 2004 will provided for a number of cash legacies, with the residue of Ms.

Stoller’s estate being left to the Hillel Foundation. [ 6 ] In 2007, Ms. Stoller made handwritten notes specifying that all of the beneficiaries other than the Hillel Foundation were to be eliminated from her 2004 will. [ 7 ] Ms. Stoller executed the Will on August 10, 2010. At the same time, she executed a power of attorney for property and a power of attorney for personal care. Lawrence S. Pascoe of the firm Mirsky Pascoe drafted the documents and they were executed at Mr. Pascoe’s office. The Will revoked Ms. Stoller’s previous will executed in May 2004. [ 8 ] The Will appoints Ingrid Levitz as Ms.

Stoller’s executrix and estate trustee. Ms. Levitz was also appointed Ms. Stoller’s attorney for property and personal care. [ 9 ] Following execution of the Will, Ms. Stoller took the original Will and affidavit of execution. Ms. Stoller advised Mr. Pascoe that she would be depositing the original Will in her safety deposit box. Mr. Pascoe retained a signed copy of the Will in his office file. [ 10 ] After Ms. Stoller’s death in May 2016, Ms. Levitz conducted a thorough search of Ms. Stoller’s home, papers and personal belongings, including Ms. Stoller’s safety deposit box. The original Will was not found.

A “trued up” copy of the Will was found in a binder in Ms. Stoller’s apartment. [ 11 ] A will notice was published in the Carleton County Law Association’s e-newsletter in June 2016. The notice has not resulted in any information regarding the location of Ms. Stoller’s original Will.

The Legal Framework [12] In order to prove a lost will, an applicant must: (

i) Provide proof of the due execution of the will; (ii) Provide particulars which trace possession of the will to the date of the testator’s death, and afterwards if the will was lostafter death; (iii) Provide proof of the contents of the will; and (iv) Rebut the presumption that the will was destroyed by the testator with the intention of revoking it (Sorkos v.

Cowderoy(2006), (ON CA), 215 O.A.C. 194 (C.A.), at para. 8). [13] This application is concerned only with the fourth element of the test: whether the applicant has rebutted, on the balance ofprobabilities, the presumption that the will was destroyed by the testator with the intention of revoking it (Lefebvre v. Major, (SCC), [1930] S.C.R. 252, at 257; Sorkos, at para. 10). [14] Subsection 15(

d) of the Succession Law Reform Act requires that in order for its revocation to be effective, a will must bedestroyed by “burning, tearing or otherwise destroying it by the testator or by some person in his or her presence and by his or herdirection with the intention of revoking it” (R.S.O. 1990, c. S.26). [15] Subsection 15(

d) requires both the destruction of a will and the actual intention to revoke it. Therefore, in order to rebut thepresumption, Ms. Levitz must demonstrate either (

i) that the Will was not destroyed; or (ii) that there was no intention by Ms. Stoller torevoke the Will. [16] In assessing whether the presumption has been rebutted, I must also have regard to

section 13 of the Evidence Act, R.S.O.1990, c. E.23.

Section 13 provides: In an action by or against the heirs, next of kin, executors, administrators or assigns of a deceased person, an opposite or interested partyshall not obtain a verdict, judgment or decision on his or her own evidence in respect of any matter occurring before the death of thedeceased person, unless such evidence is corroborated by some other material evidence. [17]

Section 13 of the Evidence Act requires that there be corroboration of material facts alleged by an opposite or adverse party ofany matter occurring before the testator’s death. It addresses the obvious disadvantage faced by the dead: they cannot tell their side ofthe story or respond to the living’s version of events (Burns Estate v. Mellon (2000), (ON CA), 48 O.R. (3d) 641(C.A.), at para. 5; Orfus Estate v.

Samuel & Bessie Orfus Family Foundation, 2011 ONSC 3043, at para. 15, aff’d 2013 ONCA 225). [18] As Penny J. stated in Orfus Estate, at paragraph 16: “[T]he material evidence in corroboration must be independent of theopposite or adverse party and must appreciably help the judicial mind to accept one or more of the material facts deposed to. It mustmaterially enhance the probability of the truth of the adverse party’s statement.” Analysis [19] The following factors are relevant to my consideration of the evidence: (

i) Whether the terms of the Will are reasonable; (ii) Ms. Stoller’s relationship with the beneficiary; (iii) Whether Ms. Stoller’s personal effects were destroyed prior to the search for the Will being carried out; (iv) Ms. Stoller’s nature and character in taking care of her personal effects; (

v) Whether there were any dispositions of property during Ms. Stoller’s lifetime which confirm or contradict the terms of thecopy of the Will sought to be probated; (vi) Statements made by Ms. Stoller which confirm or contradict the terms of distribution set out in the Will; (vii) Whether Ms. Stoller was of the character to store valuable papers, and whether Ms. Stoller had a safe place to store thepapers; (viii) Whether there is evidence that Ms. Stoller understood the consequences of not having a will and the effects of an intestacy;and (ix) Whether Ms.

Stoller made statements to the effect that she had a will (Goold Estate v. Ashton, 2016 ABQB 303, at para. 71,aff’d 2017 ABCA 295). [20] In Goold Estate, the applicants relied on the presumption to assert that the deceased’s holograph will was destroyed and thatthe administration of the estate should proceed on the basis of an intestacy. The ability to rely on the presumption was impacted by theissue of whether the deceased had the capacity to revoke her will at the time she was presumed to have destroyed it.

The court found thatthe applicants had not discharged their burden of establishing that the will was destroyed while the deceased was of sound mind. Thecourt went on to consider and to find that in any event, there was sufficient evidence to rebut the presumption that she intended to revokeher will.

[21] As among the parties before me, there is no dispute that the terms of the Will were reasonable. There is also no dispute thatMs. Stoller retained a copy of the Will. I turn to the other factors identified in Goold Estate. (

a) Ms. Stoller’s Relationship with the Beneficiary [22] Hillel Lodge forms part of the Jewish community and caters to the needs of seniors who can no longer live independently, byproviding residential long-term care and other support services in a traditional Jewish environment. Hillel Foundation was created in2002 to help raise funds for Hillel Lodge to provide high quality care, programs and services for its residents. Ms. Stoller was a member of the Ottawa Jewish community. During the last ten years of her life, she had become very interested inHillel Foundation.

In the five years preceding her death, she made donations to Hillel Foundation amounting to over $85,000. [23] Ms. Stoller was not a resident of Hillel Lodge. David Freeman was a friend of the deceased for many years. Mr. Freeman’sevidence is that in an April 2016 telephone conversation with Ms. Stoller, he suggested that she consider moving to a seniors’ residence. Ms. Stoller responded that she had already discussed the matter with Ms. Levitz and they had arranged to tour the facilities at HillelLodge and Carlingwood Retirement Community. Mr. Freeman cautioned Ms.

Stoller that unlike the Carlingwood facility, Hillel Lodge had a waiting list of up to two years as admissionswere controlled by Community Care Access Centre. Ms. Stoller replied that she expected there would be no delay in her admission toHillel Lodge when she applied as she was leaving her entire estate to the Lodge. [24] There is also evidence from Ms. Levitz that in early April 2016, Ms. Stoller called her, wanting Ms. Levitz to make anappointment with Mr. Pascoe to review the Will. Ms. Levitz then called Mr. Pascoe, who suggested that Ms.

Stoller make her desiredchanges on the copy of the Will provided to her in the Will binder and send the proposed changes to him in advance of scheduling ameeting. When Ms. Levitz advised Ms. Stoller of Mr. Pascoe’s recommendation, Ms. Stoller told Ms. Levitz that she wanted to discussremoving some of the administrative clauses in the Will, perceiving them to be unnecessary. Ms. Levitz explained that those clauseswere standard and that Ms. Stoller should not worry about them. Ms. Stoller then confirmed, when asked by Ms.

Levitz, that she did notwant to make any changes with respect to the actual distribution of her estate. Ms. Stoller did not raise the issue of reviewing or makingchanges to the Will again. There is no evidence that any appointment was made subsequently with Mr. Pascoe. [25] Nancy-Lynn and Bryan Stoller’s position is that the evidence shows that in the few weeks immediately preceding her death,Ms. Stoller was very much aware of and concerned about the state of the Will and contemplating testamentary changes. They submitthat what Ms.

Stoller was intending to discuss with counsel cannot be resolved on the evidence. [26] I reject this submission for the following reasons: • There is no evidence before me that Ms. Stoller intended to make any substantive changes to the Will. Indeed, the uncontradictedand independent evidence is to the contrary: the deceased intended to maintain Hillel Foundation as the sole beneficiary of her estate. • Ms. Stoller did not meet with Mr. Pascoe to make any changes to the Will, administrative or otherwise, nor did she make anappointment with Mr. Pascoe to do so. Mr.

Pascoe’s evidence is that following his preparation of the Will, Ms. Stoller never instructedhim to make any changes to it. • When Ms. Stoller changed her mind regarding the beneficiaries in her 2004 will, she made notes with regard to her proposedchanges. There is no evidence that Ms. Stoller made similar notes with regard to the Will. • The nature of the relationship between Ms. Stoller and Ms. Levitz, Ms. Levitz’s appointment as executor and estate trustee, Ms.Levitz’s appointment as attorney for property and personal care, and Ms. Stoller’s statement to Ms.

Levitz in April 2016 that “everythingis still going to Hillel Lodge”, all support a conclusion that if Ms. Stoller had wanted to make changes to the Will, she would have contacted Ms. Levitz. (

b) Destruction of Ms. Stoller’s Personal Effects [27] There is no evidence of the destruction of any of Ms. Stoller’s personal effects prior to the search for the Will beingconducted. (

c) Ms. Stoller’s Nature and Character in Taking Care of Personal Effects [28] Ms. Stoller was, by all accounts, a highly organized and meticulous person. This was reflected in the way she took care of herpersonal effects and in the way she organized and stored her important documents. At the same time, there is evidence that Ms. Stollerdid not place the original Will in her safety deposit box upon her return from Mr. Pascoe’s office in 2010. Ms. Levitz’s evidence is that she had noticed a slight decline in Ms.

Stoller’s mental functions in the last year of her life. [29] Nancy-Lynn and Bryan Stoller’s position is that the deceased’s organized nature does not accord with what they describe asconjecture that Ms. Stoller accidentally threw out the Will. Nancy-Lynn Stoller’s evidence is that it became apparent to her that Ms.Stoller may have destroyed the original Will with the intention of revoking it. Bryan Stoller and Carole Stoller, Ms.

Stoller’s sister-in-law, agree with this observation. [30] Nancy-Lynn and Bryan Stoller submit that the facts of this case are very similar to those in Re Weeks, (ONSC), [1972] 3 O.R. 422 (Surr. Ct.). I disagree. In Re Weeks, the court stated that only two explanations were supported by the evidence:either the deceased destroyed his will or his wife did. Before concluding that the presumption that the deceased destroyed his will with

the intention of revoking it had not been rebutted, the court observed that the only other possible explanation amounted to an allegation that the deceased’s wife had committed a serious crime. [ 31 ] In this case, there is evidence from Ms. Levitz that Ms. Stoller understood the importance of having the Will. Ms. Levitz’s evidence is corroborated by that of Mr. Freeman: when he asked Ms. Stoller in October 2015 about her estate planning, she replied that Mr. Pascoe had prepared the Will. There is evidence that Ms. Stoller raised with Ms. Levitz the possibility of making administrative changes to the Will.

There is also Ms. Levitz’s observation that Ms. Stoller’s mental functions had declined in the year prior to her death. On the facts of this case, I find that a much more likely and reasonable explanation is that the Will was lost or misplaced when Ms. Stoller was contemplating the possibility of making administrative changes to it. (

d) Dispositions of Property during Ms. Stoller’s Lifetime [ 32 ] Ms. Stoller’s donations to Hillel Foundation during the last five years of her life, totaling approximately $85,000, are consistent with the terms of the Will. Nancy-Lynn and Bryan Stoller’s position is that these donations do not address the period from early April 2016 until Ms. Stoller’s death on May 2, 2016, when, they submit, Ms. Stoller was contemplating testamentary changes. Again, there is no evidence that Ms. Stoller was contemplating substantive changes to her testamentary wishes in the weeks prior to her death. As set out immediately below, all of the evidence confirms the terms of distribution set out in the Will. (

e) Statements Made by Ms. Stoller that Confirm or Contradict the Terms of Distribution [ 33 ] The following statements made by the deceased confirm the terms of distribution set out in the Will: • In October 2015, Ms. Stoller stated to Mr. Freeman that her entire estate was to be left to Hillel Lodge. • In April 2016, when she was considering removing some administrative clauses in her Will, Ms. Stoller confirmed to Ms. Levitz that her plans to leave her entire estate to Hillel Lodge had not changed. • During the second week of April 2016, Ms. Stoller told Mr.

Freeman that her entire estate was left to Hillel Lodge. In the same conversation, Ms. Stoller told Mr. Freeman that she did not anticipate having to wait to be admitted to Hillel Lodge because she was leaving her entire estate to the Lodge. • On April 18, 2016, Ms. Stoller told Robert Shaver, her accountant for more than 20 years, that she was leaving her estate to Hillel Foundation. [ 34 ] There is no evidence that Ms. Stoller made any statements contradicting the terms of distribution set out in the Will. (

f) Whether Ms. Stoller was of the Character to Store Valuable Papers [ 35 ] The evidence relating to his factor has been considered under subheading “ (

c) Ms. Stoller’s Nature and Character in Taking Care of Personal Effects ”. (

g) Whether Ms. Stoller Understood the Consequences of Not Having a Will [ 36 ] The position of Nancy-Lynn and Bryan Stoller is that there is no evidence that Ms. Stoller understood the consequences of not having a will. I disagree for the following reasons. [ 37 ] First, Ms. Stoller worked as a legal and administrative assistant for many years. She was an educated woman and worked for the International Monetary Fund in Washington and served as a Canadian diplomat. Nancy-Lynn Stoller deposed that Ms. Stoller knew the importance of legal documents. [ 38 ] Second, Ms.

Stoller retained a lawyer in 2004 to draft her will and retained Mr. Pascoe in 2010 to draft the Will. Ms. Stoller acted intentionally so as to avoid the effects of an intestacy. [ 39 ] Third, the statements made by Ms. Stoller in the weeks prior to her death in May 2016 confirm that Ms. Stoller did not intend to die without a will in place. To the contrary, Ms.

Stoller’s statements confirm that she wanted to leave her entire estate to Hillel Foundation; this would not occur if the estate were distributed pursuant to an intestacy. [ 40 ] The relevant evidence in relation to this factor supports the conclusion that Ms. Stoller understood the consequences of not having a will and the effects of an intestacy. Disposition [ 41 ] Considering all of the evidence, I find that there is sufficient evidence to establish, on a balance of probabilities, the absence of an intention by Ms. Stoller to revoke the Will.

Accordingly, the Will has been proved and the copy of the Will adduced in evidence shall be admitted to probate as the Last Will of Sarah Stoller.

[ 42 ] If the parties are unable to agree on costs, they may make brief written submissions on costs within 15 days of the release of these reasons. As I advised counsel, costs are to include costs of the motion heard on September 14, 2017 to proceed with the hearing of the application. Madam Justice Robyn M. Ryan Bell Date: October 20, 2017 CITATION : Levitz v.

Hillel Lodge Long Term Care Foundation , 2017 ONSC 6253 OTTAWA COURT FILE NO.: 33780/16 DATE: 2017/10/20 ONTARIO SUPERIOR COURT OF JUSTICE RE: Ingrid Levitz, Executrix of the Estate of Sarah Stoller, Applicant AND The Hillel Lodge Long Term Care Foundation, The Hillel Lodge Long Term Care Centre, Nancy-Lynn Stoller and Bryan Michael Stoller, Respondents BEFORE: Madam Justice Ryan Bell COUNSEL: Yasmin M. Vinograd, Counsel for the Applicant Martin Z.

Black, Counsel for the Respondent The Hillel Lodge Long Term Care Centre Joel Reinhardt, Counsel for the Respondents Nancy-Lynn Stoller and Bryan Michael Stoller Russell Kronick, for the Respondent The Hillel Lodge Long Term Care Foundation reasons for decision Justice Ryan Bell Released: October 20, 2017