by Kimberly Whaley
This was a summary judgment motion by a testator's widow and estate trustee for dismissal of an application brought by the testator's various nieces and nephews, raising
allegations of undue influence and suspicious circumstances.
The testator died at the age of 94. His latest Will left the bulk of his estate to his second wife (the respondent, who was 17 years his junior) and named her his estate trustee. The applicants challenged the validity of the various Wills made in the three years before the testator's death and during his marriage to the respondent.
The respondent brought this summary judgment motion, seeking to dismiss the application. There was various affidavit evidence put forth in support of the motion including an affidavit from the testator's family physician of 40 years, the lawyer who assisted in preparing the various Wills, the testator's chiropractor and long-time friend, as well as his accountant.
The applicants, however, presented contradicting evidence which supported the existence of a triable issue. Given the conflicting evidence presented, the court was not prepared to dismiss the matter summarily. Deciding the issue of undue influence and suspicious circumstances would have required live testimony and cross-examination of all witnesses. Hence there would be no significant savings of time or expense if the motion was simply adjourned to obtain this oral evidence, compared to proceeding to trial.
The testator and the respondent were involved in an extramarital affair during his 62-year marriage to his first wife. They had a child together as a result of this affair.
The testator's wife died in 2006. There were no children from that marriage. The respondent visited the testator after the death of his wife and their relationship eventually led to a sudden unannounced civil marriage in February of 2011. They also had a religious ceremony in 2013 with their son present.
The testator had a prior Will prepared which left the majority of his estate to his nieces and nephews, which was revoked upon his marriage to the respondent. Between February 2011 and October 4, 2012, the testator made 4 new Wills. The last Will signed on October 4, 2012, left $20,000.00 for each of the testator's nieces and nephews. The balance of the estate under both his primary and secondary Wills of October 4, 2012, went to his son with the respondent, after the life interest to the respondent, in the residue with her ability to encroach on the capital.
The respondent presented evidence suggesting that she married the testator at his insistence. That he was mentally competent throughout their relationship and that she had absolutely no involvement in the preparation of the various Wills.
As to why the testator had suddenly decided to disinherit his nieces and nephews, the respondent claimed that the testator was unhappy about the lack of effort the family members made to keep in contact with him. She claimed that they hardly ever called him and that most of them failed to attend a 90th birthday celebration party that she had arranged for him. Her evidence was that she did not discourage or interfere with their relationship.
The applicants, on the other hand, presented evidence claiming that the respondent pressured the testator into getting married and that the testator had on many occasions indicated that he had no intention of marrying her. However, they did not contest the validity of the marriage.
They claimed that they had all enjoyed a close relationship with the testator prior to the respondent moving in with him. The evidence was that the respondent cloistered the testator, intercepted their calls, and prevented them from having a relationship with him.
There was also some conflicting evidence presented regarding the testator's cognitive functioning at the time the Wills were prepared. There were some emergency hospital records which suggested that the testator had a history significant for dementia. The applicants also deposed that the testator's alcohol consumption had increased since he began residing with the respondent.
The evidence from the testator's lawyer suggested that he had the testator's family physician conduct a capacity assessment because the testator had expressed concerns that his nieces and nephews may challenge the Will. However, there was no direct evidence that a full mental capacity assessment took place. Although the testator's family physician had provided his opinion indicating the testator was capable, there was no notation indicating that he had assessed the testator.
The respondent's evidence indicated that she had no involvement with the preparation of the Wills. However, there was evidence indicating that the testator provided his lawyer with typed instructions for the Will. According to the applicants the testator had minimal typing skills and did not like to type, which raised the possibility of the respondent's involvement.
The applicants raised two triable issues, undue influence and suspicious circumstances. If this matter were to proceed to trial they would have the high burden of establishing those claims on a balance of probabilities. In accordance with Trotter Estate, 2014 ONCA 841 at paras. 58 and 59, circumstantial evidence can be used to discharge this burden.
he Court in its analysis reviewed the indicators of possible undue influence as set out in Gironda v. Gironda, 2013 ONSC 4133 and situations that may give rise to suspicious circumstances set out in Vout v. Hay  2 SCR 876.
The evidence presented by the applicants, if accepted, raised some potentially significant confirmation of the testator's dependency on the respondent for emotional and physical needs, as well as evidence of her socially isolating and cloistering him; all of which are potential indicators of undue influence.
As noted above, given the contradictory evidence presented, the Court was not prepared to grant summary Judgment, however the Court set the matter down for an expedited trial to take place the week of June 18, 2018.
Courts may not be inclined to summarily dismiss claims where contradictory evidence is presented with respect to contentious issues raised, such as undue influence and suspicious circumstances in the context of estates, and testimony of multiple witnesses would be required to determine those issues.