Dear Kenneth,

Happy Valentines Day! My favourite annual newsletter edition-the Day of Love! I hope you have a wonderful family day weekend, and of course, enjoy your day of LOVE!!

The 67^th Grammys were held February 2^nd, so fun to watch-all that talent! There were some amazing new songs and artists, my favorite new songs of the year were: Shaboozey’s, A Bar Song (Tipsy); Benson Boone’s, Beautiful Things, and Teddy Swim’s, Lose Control. Notably, Jack Emblem, Sammi’s drum teacher back in high school, a very talented force of music, an esteemed Berklee College of Music graduate, was nominated for a Grammy for Best Engineered Album, Non-Classical Cyan Blue. Congratulations Jack and family (for their support) for such well deserved success and notably, so early in your career. Very well-done Jack!

Ok, so speaking of music, last Valentine’s we composed a Valentine’s playlist. Curiously, I had no feedback!? Nevertheless, below you will find Sammi’s TOP 14 love songs of 2024 and Spotify link - Enjoy! If anyone else has one, SHARE!

The Oscar’s are also coming up. In our house, we have been madly viewing as many of the nominees as possible in advance of our Oscar evening party so that we can meaningfully make our predictions. Join us in picking the winners! Here is a link to all the nominees on our scoresheet: https://welpartners.com/WEL-2025-Oscars-Ballot.pdf Complete your predictions and send to the email address on the form for a chance to win a fabulous prize and we'll include the results in our March Newsletter! Have fun, but get watching since March 2nd is sneaking up on us! Just a little bit of fun to get us through the doldrums of February!

We also had a Superbowl Chilli evening on Sunday the 9th! Did you watch? My Mom was supposed to be celebrating her 82nd birthday this past weekend with dinner at the Carriage House in Oakville. Mom loves the rack of lamb there. I made a double chocolate cheesecake for her, but she ended up with Pneumonia, so we will try again next weekend. We have a special spa day coming up as her experiential gift!

Since our last newsletter, I was invited to do a podcast by my friend Jaqueline Porter. Jackie Porter is a Certified Financial Planner: www.askjackie.ca.

I also had a fun day with Jordan Atin and Alex Procope teaching an elder law class for Jordan’s first year Will’s law students at York University, Osgoode Hall Law School. The class was a good size, and the students seemed very engaged. Thanks, Jordan, for an enjoyable day away from the usual!

At WEL we were so excited to welcome Bryan’s son #2. We are so thrilled to have another baby Gilmartin around. Congratulations Bryan and family! I look forward to baby sitting duties. As an aside, and given we have an estates practice, and Bryan of course grew up in a northern Ontario Funeral Home, I wanted to share that son #1 calls the cemetery (over which our offices look out on) a “People Patch”-out of the mouths of babes. I found this so funny.

With all the election news and the turmoil across the border there is a swirl of opinion, news, and debate being generated. My hope is that reason and common sense prevails on all fronts. I guess we stay tuned.

Lastly, by now, we will have been 14 days into a Celebration of Black History in the monthlong drive to learn, understand and love. Penguin Random House released a list of books to promote this initiative, how many have you read? https://www.penguinrandomhouse.ca/campaign/966/books-read-black-history-month

Back at you next month,

Until then, Enjoy the Read.

Kim

P.S. If you are wondering about our Valentine’s Cookies (header picture), they are compliments of none other than Lisa Phillips, in the event you are looking for the best cookies ever!!

By Sam Henderson-Whaley

1. So High School, by Taylor Swift

This should come as no surprise to anyone who knows me. My favorite artist has never disappointed me and continued that streak this year. In an album largely about growth, heartbreak, healing, and rediscovering yourself, there is a sliver of the delicate beginnings of new love. This song feels like spending hours gushing to your friends about someone you’ve been dating, starry eyed and giggly. So High School had me blushing, kicking my feet, and drawing hearts on my Converse, taking me back to teenage crushes and daydreams.

2. Close To You, by Gracie Abrams

Call it love, call it lust, call it a crush, no matter your interpretation this song has the Valentine’s Day spirit. I mean, “pull the trigger on the gun I gave you when we met” might be one of my favorite ways ever to say, “love at first sight.” Anytime I want to feel like I’m watching a classic romcom, I listen to Gracie Abrams. This song is My Best Friend’s Wedding, Sixteen Candles, and Two Weeks’ Notice bundled together, full of longing and hope and fate.

3. Die With A Smile, by Bruno Mars and Lady Gaga

This is the duo I didn’t know we needed. This would certainly not be the first time Bruno Mars made it onto a Valentine’s playlist, and it will not be the last. The man who would take a grenade for you, who would give you his wallet if you wanted it, is back to say if the world was ending, he’d want to be next to you. Lady Gaga adds so much depth to this duet (THE HARMONIES), though she is not always quite so romantic in her own music, this song certainly brought it out of her. I have been walking around the house belting this involuntarily, and I think it’s safe to say that will continue for at least another few months.

4. BIRDS OF A FEATHER, by Billie Eilish

I had thought that no matter where Billie’s music went, her most romantic song would always be Ocean Eyes. That said, this year BIRDS OF A FEATHER has given Ocean Eyes a run for its money. There hasn’t been a chart-topping song that has so boldly taken on the theme of soulmates in a while, it went out of fashion for some reason. Hearing Billie sing, “I knew you in another life, you had the same look in your eyes” is just the fix for the soulmate theme comeback. 

5. Juno, by Sabrina Carpenter

For a singer, songwriter, and actress, Sabrina makes me laugh more than most comedians. Her lyrics reflect how she talks, direct, candid, assured, and with incredible comedic timing. For those of you who have seen Sabrina perform this on her Short n’ Sweet tour, you’ll know that this is the number where she’ll arrest an audience member (and sometimes a guest star) for being too attractive, handing them a pair of the fuzzy pink handcuffs she sings about. This is the perfect giddy and confident love song for a Valentine’s Day playlist.

6. you look like you love me, by Ella Langley and Riley Green

Now, I am not normally a person who leans towards country music. Of course I love Dolly, and before you even think it, yes, I know the Taylor music I first fell in love with was, in fact, country. That said, I’m more of a pop/rap/musical theatre/folk girl myself. you look like you love me, however, has all the elements of a song that would make me occasionally gravitate towards this genre. Reminiscent of Home by Edward Sharpe & The Magnetic Zeros (a song I’ve loved since it came out when I was 10), you look like you love me features a catchy melody and lots of talking, a jarring style to some, but something I think, when done right, is a brilliant storytelling method.

7. Spring Into Summer, by Lizzy McAlpine

Since 2022, Ceilings by Lizzy McAlpine has been on all of my playlists. In all that time, I’m ashamed to say I didn’t listen to the rest of Lizzy’s stuff. I only started listening to her other songs this past summer and realized that she is one of my favorite lyricists. Spring Into Summer is from her 2024 album, Older (and Wiser), and stands out as one of the only hopeful love songs. The rest of the album is a coming-of-age story that explores independence, adulthood, losing people, and becoming the person you want to be. Spring Into Summer is like coming up for fresh air, a sweet and vulnerable declaration of love.

8. Scared To Start, by Michael Marcagi

This is the dance off into the sunset song. The end credits, happily ever after that every romcom movie lover knows by heart. It’s the song that begs the question, what happens after happily ever after, but then proceeds to answer it in the idyllic way we’d like all scary questions to be answered. Michael Marcagi sings the type of answers I’ve always hopefully supplied when people have asked me disturbing questions. Questions like: Do I think Andie Anderson and Ben Berry stayed together after How to Lose a Guy in 10 Days ended? And, do I believe it's realistic for Kathleen Kelly and Joe Fox in You’ve Got Mail to have been able to put aside the fact that they were on opposite sides of the modern bookselling industry, and actually have a successful relationship? I appreciate the idealist perspective Michael Marcagi takes in this song, it’s romantic, and certainly the energy everyone needs on Valentine’s Day.

9. Beautiful Things, by Benson Boone

I would say this was probably my mom’s favorite song of the year. Every time she hears Benson Boone, her eyes light up and she says, “oh I love this song.” She’s not wrong, Beautiful Things is pretty electric, and very reflective of a fear inherently tied to love: the fear that you’ll lose something so important to you. The real showstopper of this song isn’t the lyrics, though, it’s the sheer power of Benson’s voice. He has such a range and, if anyone’s seen him perform this at any award shows or concerts, you’ll know that he has SUCH a great stage presence. I am a sucker for the wow factor of those backflips. This song defines that feeling of being so euphoric and anxious all at once that you want to break into gymnastics.

10. Bobby Sox, by Green Day

This song surprised me. A lot. I wasn’t even considering Green Day when making this playlist at first, nor do I think I have ever had a Green Day song on a playlist about love. That said, what a fun, upbeat, and playful love song. I can see this being used well in screen soundtracks, during a romantic montage, as an opening credits track, or, as a song the dishy love interest plays with their rock band at a gig they invited the main character too. The lyrics are strange but fitting for Green Day. My favorite: “we’ll walk the cemetery, and I’ll kiss you again, and make our dead friends blush.”

11. Good Luck, Babe!, by Chappell Roan

Good Luck, Babe! stands out as a song about endings, rather than the beginnings and forevers found in the rest of this playlist. This is a song about arriving at a crossroads in a relationship, knowing your partner is going to regret the way they acted, and, yet, knowing you must put yourself first and part ways. The romance of a song like this is in knowing what love should feel like, and knowing you deserve to have that feeling. Chappell sings, “think I’m gonna call it off, even if you call it love, I just wanna love someone who calls me baby.”

12. Heather On The Hill, by Nathan Evans

In listening to the happy-go-lucky love songs that came out this year, this one stuck out to me. Nathan Evans is a Scottish singer songwriter who gained popularity by singing sea shanties on TikTok, and he absolutely has the voice for it! Heather On The Hill is a folksong depicting the beginnings of a love story set in Scotland. The landscape and scenery in this song are so vividly described, you almost feel like you’re sitting around a campfire on a cool evening hearing Nathan sing you a timeless tale of romance, the music carrying across the hills all the way to the sea.

13. Lose Control, by Teddy Swims

This is the one to slow dance to. Put it on the speakers, dim the lights, grab your partner, and dance. In the refrigerator light, if you’re Taylor Swift fans. Teddy Swims has a powerhouse voice that was meant to deliver ballads like this one, a ballad that isn’t cutesy, but, rather, kind of steamy. This song falls in the same category as Beautiful Things, in that it’s a song my mom introduced me to this year because she loves it.

14. Diet Pepsi, by Addison Rae

This is a song you either love or hate, but no matter what your opinion of it, there’s no denying Diet Pepsi is CATCHY. I never made a conscious effort to listen to this song, it just sort of appeared on all my media platforms, and then other artists I liked were bringing Addison Rae on as a guest at their shows to perform it. This meant, strangely, I knew all the lyrics and had been humming it for weeks before I even knew what it was called. Diet Pepsi wormed its way into my heart, and this playlist, and I think it does a great job of joining So High School on this list representing the nostalgic romance factor.

To listen to Sam’s playlist, click the link below to access it through Spotify!

https://open.spotify.com/playlist/5QUaFc3mZzN7jG1nrAaR7j?si=CWTwUrs8RM2rZDhmGtglZA

By Sam Henderson-Whaley

This is probably more lists than you bargained for, but I like to provide options! In honour of one of my favourite holidays, I thought I’d highlight my 5 favourite love stories that I read in 2024. I won’t say this is a strictly “romance” genre list, because some of the best love stories exist outside of the genre, and, to me, Valentine’s Day is about all love, not just romance.

1. Funny Story, by Emily Henry

Some of you may remember my mother mentioning this book in one of her newsletters near the end of 2024. She is not typically a fiction reader, and it took A LOT of convincing to get her to read it, but wouldn’t you know, she loved it. Funny Story is the best romance novel I have read in a long time. Emily Henry was not new to me, I had read and adored many of her books prior to picking up Funny Story. This book, however, felt special. Daphne, our main character, is reeling from a sudden break-up with her fiancé that left her without a place to live and isolated from their mutual friends. Miles finds himself with an apartment to himself after his long-term girlfriend suddenly leaves him… for Daphne’s fiancé. Left to pick up the broken pieces of their respective relationships, and finding a certain solidarity in each other, Daphne and Miles decide to change their relationship status. Going from acquaintances at best, to roommates, and then, after one night of vulnerable mutual wallowing and jealousy-fuelled grandiose notions of vengeance, a fake couple to make their exes jealous. Funny Story is about more than just love, it’s a story about confidence, growth, and independence, while also being hilarious, messy, and absolutely lovely.

https://www.indigo.ca/en-ca/funny-story/9780593441282.html

2. The Princess and the Grilled Cheese Sandwich, by Deya Muniz

A fictional world where everything is named after a type of cheese sets the scene for a Twelfth Night-esque tale of calamity and romance. Lady Camembert is struggling to keep hold of her independence and adamantly refusing any possibilities of marriage. When her father dies and, by law, his estate can only be passed on to a male relative, Lady Camembert is left with no choice but to change her name, move far away to the capital city of the Kingdom of Fromage, and transform herself into the handsome Lord Camembert. Keeping her true identity a secret won’t be a walk in the park, especially as she develops a close friendship with the kind, fashionable, and beautiful, Princess Brie. This graphic novel romantic comedy is whimsical, heartwarming, and thoroughly enjoyable from start to finish. What really made it stand out to me, and, indeed, made this book impossibly more romantic, is the author information at the back of the book, revealing the story of Camembert and Brie was, in some ways, inspired by Deya Muniz’s own love story.

https://www.indigo.ca/en-ca/the-princess-and-the-grilled-cheese-sandwich-a-graphic-novel/9780316538725.html

3. Impossible Creatures, by Katherine Rundell

I warned you that there would be books on this list that don’t necessarily seem like they’d be Valentine’s Day material. Impossible Creatures is a young readers title that came out in 2023 and has been referred to by some as “this generation’s Harry Potter.” I wouldn’t necessarily choose to describe it that way because, to me, Impossible Creatures and Harry Potter occupy completely different sub-genres within fantasy. That said, Harry Potter and Impossible Creatures are both adventure stories about young people who find themselves dealing with big problems, and, most importantly, they both feature cool mythical creatures. When Christopher discovers that his family comes from a long line of guardians, tasked with defending a hidden archipelago filled with all the world’s supposedly “mythical” creatures, he is thrown into an adventure beyond his imagination. Inside the borders of the archipelago, Christopher meets Mal, a girl on the run in desperate need of an ally, discovers that the archipelago’s magic is in jeopardy, and is confronted with the horrifying reality that all the archipelago’s magical creatures are dying, and no one knows why. Together, Christopher and Mal take on the impossible task of rescuing the archipelago and all its inhabitants, forming a very real bond along the way. Impossible Creatures is about the love we have for our family, our friends, and the love and care we should have for all the wonderful creatures that inhabit this planet with us.

https://www.indigo.ca/en-ca/impossible-creatures/9780593809860.html

4. The Third Gilmore Girl, by Kelly Bishop

This is another book that one might not necessarily associate with Valentine’s Day. If you’ve ever watched Gilmore Girls, you’ll know that Kelly Bishop played the role of the stony, hilarious, complicated, and, ultimately, loving, Emily Gilmore. What you may not know is that her career in showbiz started with dance, then stage musicals, and, eventually, film and television. Told in her own witty, sharp, and completely honest voice, Kelly Bishop insightfully details the story of her life. The good, the bad, and the chances taken, are all laid out in this memoir. There are so many ways that this book explores love that it’s impossible to categorize. Having meaningfully represented familial, romantic, and friendship love, as well as the strong thread throughout the memoir that boldly portrays a love and passion for one’s work and art, how could this not have made our love story list. I listened to this as an audiobook, which I would absolutely recommend because hearing it all in Kelly Bishop’s own voice makes it all the more impactful.

https://www.indigo.ca/en-ca/the-third-gilmore-girl-a-memoir/9781668023778.html

5. Better Than The Movies, by Lynn Painter

If you think young adult books are no longer for you because you’re an adult, you’re wrong. Better Than The Movies is the epitome of romance, and something I wish I could read for the first time all over again. This is for all those die-hard romantics out there who like to believe, as I always have, that if someone can dream it up and put it in a romcom, then something like it must really exist in real life somewhere and for someone. Better Than The Movies is just what it looks like it will be, but done so much better than you would think it could be. Liz Buxbaum, certified love lover, and head-in-the-clouds daydreamer, has found the one. The only problem is, Liz needs an in, and her obnoxious next-door neighbour, Wes, might just be it. Wes’s friendship with Liz’s dream boy is just the ticket for a truce between these perpetually feuding neighbours, and so a peace treaty is brokered. Things grow complicated, however, as this truce grows into reluctant friendship, and maybe, something more. This is a book about romance, and yet, I picked it not necessarily for the obvious romantic plotline, but, rather, because it is so obviously a love letter to the entire romance genre. The tropes, Lynn Painter’s romantic playlist that accompanies the scenes of Liz Buxbaum’s love life, and even the cover design, pay homage to a genre that has everything to do with Valentine’s Day. For those of you who might need some background on the cover design for this book, the animated scenes on the cover depict Liz living out scenes from iconic romance movies such as Crazy, Stupid, Love, Dirty Dancing, Say Anything, Bridget Jones’s Diary, and The Notebook.

https://www.indigo.ca/en-ca/better-than-the-movies-tiktok-made-me-buy-it/9781534467637.html

I hope you find something that resonates with you in one of my lists this Valentine’s Day. Enjoy the day of love everyone!

TOP SPECIALIST TAX LAW FIRMS IN CANADA 

WEL Congratulates those who have been recognized by Canadian Lawyer Magazine as the top tax law boutiques in Canada for 2025 and 2026. Canadian Lawyer recognizes firms that have demonstrated excellence in specialized tax law services, and tailored solutions for clients while navigating the increasing complexity of tax regulations and international compliance standards.

View Top Tax Firms Here: https://www.canadianlawyermag.com/rankings/the-top-specialist-tax-law-firms-in-canada/390747

CONGRATULATIONS TO JUSTICE FRANCES M. WOOD

Congratulations to Frances “Frankie” Wood, a director on the OBA’s Board, serving as Central West Region Representative, who has been a champion and model of civility in the profession and has been especially active in advocating for meaningful access to justice, on being appointed a Judge of the Superior Court of Justice of Ontario, Family Court, in Kitchener.

OBA AT THE HOTLINE: PRO BONO REGIONAL CHALLENGE

Congratulations to OBA’s East Region, winner of the OBA at the Hotline: Pro Bono Regional Challenge, with a shout-out to Kingston-based in-lawyer and Challenge participant Vivan Wilson who received a certificate of recognition as a representative of the lawyers who gave their time to meaningfully improve access to justice.

RECOGNIZING ANTOINE COLLINS EQUITY & INCLUSION ADVOCACY EFFORTS

Shout-out to Antoine Collins, Coordinating Member, Refugee Protection Division, Immigration and Refugee Board of Canada, who, as past-chair of the OBA’s Equality Committee, continues to be an influential advocate for enhanced equality and inclusion in the profession – which he’s bringing to the fore this month as a by participant in the OBA’s Black History Month social campaign. He’s also a generous mentor to up-and-coming members of the Ontario bar – particularly foreign-trained lawyers – and he served as a panelist on the OBA’s Young Lawyers and NCA Candidates Breakfast, which took place during February’s Ontario Legal Conference.

OBA AWARDS AND WINNERS - IN CASE YOU MISSED IT

WEL Partners congratulates all those who were awarded Ontario Bar Association Awards for 2024 in their respective field.

Please see the following link, listing the winners for 2024: https://www.oba.org/About-US/About-Us/Awards

By: Albert H. Oosterhoff

1. Introduction

Cases continue to consider the requirement imposed on an applicant seeking proof of a will in solemn form to satisfy a minimal evidentiary threshold to permit the application to succeed. Graham v McNally Estate and Blais^[1] is a recent example and is worth a look.

2. Facts

The testator, Sheila McNally, who died in October 2021, executed her last ill in November 2020. In it she appointed Katherine Blais, a friend of some 14 years, as her executor, and Katherine’s husband as alternative executor. The Will was prepared by a lawyer selected by Sheila. Apart from a specific bequest, the Will directed that 40 percent of the residue of the estate be set aside and held on a Henson-like trust for Sheila’s niece, Laura, during her lifetime and gave the executor full discretion to pay income and capital to Laura. The will left the balance of the residue to Katherine and her husband, ‘equally or the survivor of them’. Sheila also named Katherine as her attorney for property and attorney for personal care, but Katherine did not act in either capacity before Sheila’s death.

Sheila did not name her older sister, Patricia Graham (Laura’s mother), a beneficiary under the will. The Will replaced a 2001 will, which named neither Patricia nor Laura a beneficiary.

Patricia brought an application in which she questioned the validity of the 2020 Will on the following grounds: (a) lack of testamentary capacity; (b) undue influence; and (c) suspicious circumstances surrounding the execution of the Will. Katherine brought a motion for an order dismissing the application on the ground that Patricia had not met the minimum evidentiary threshold required to permit the application to proceed.

In paragraph 7, Justice Corthorn notes that there is no evidence to suggest that Sheila was ever married or that she had any children. There is, however, a confusing statement in paragraph 8. It speaks of Patricia’s places of residence, and then states, ‘In the years prior to her husband’s death, Sheila spent six months of the year living in Mexico …’ I can only assume that the phrase ‘her husband’s death’ refers to Patricia’s husband’s death, and that the word ‘Sheila’ is a typographical error and should have read ‘Patricia’.

Although the sisters were in weekly telephone contact (which, except for one brief telephone call, ended in February 2019), they last met in September 2011.

Sheila and Katherine and her husband met as neighbours in 2007 and remained friends until Sheila’s death.

In support of her application, Patricia relied on her 2022 affidavit, on which she was not cross-examined, as well as her 2023 affidavit, on which she was cross-examined. She expressed her concern for not being left anything under the Will even though she was Sheila’s ‘lifetime Best-friend and supporter’, and Sheila’s failure to leave a vested interest in the trust for Laura.

Katherine relied on her 2023 affidavit in support of her motion, on which she was cross-examined. In it she describes her relationship with Sheila.

3. Analysis and Judgment

Justice Corthorn began her analysis by noting that the only issue was ‘whether Patricia has met the minimal evidentiary threshold required for the court to permit the application to proceed’, and in particular whether ‘Patricia adduced, or pointed to, evidence which, if accepted, calls into question the validity of the Will on any one or more of the three grounds on which she relies’.

Her Honour found that Patricia failed to adduce or point to such evidence and therefore dismissed the application and granted the motion (para 31). She found that most of Patricia’s evidence was nothing more than suspicion or speculation on her part. In her view, it was apparent that Patricia:

(a) is unable to accept that Sheila chose to leave a large portion of her estate to friends of 14 years, rather than to a member of her family;

(b) is unable to comprehend why Sheila made that decision; and

(c) is upset that Sheila provided for a trust for Laura’s benefit during her lifetime and did not provide for Laura to inherit at least a portion of the estate.

Her Honour discussed the leading case, Neuberger v York^[2] at some length and noted that under the Rules, an ‘interested person’ such as Patricia does not have the right to require that a disputed testamentary instrument be proved in solemn form, for the court has a discretion whether to grant the requested order and to grant directions. Moreover, it is important to prevent estates from being needlessly exposed to litigation and expense. Fort that reason, Neuberger requires the applicant to meet the evidentiary threshold of adducing or pointing to evidence that, if accepted, would call the validity of the testamentary instrument into question. Her Honour also referred to Seepa v Seepa,^[3] in which the court notes that at this preliminary stage the issue is not whether the applicant has proved her case but whether she be permitted to proceed with documentary discovery and other tools.

On the issue of testamentary capacity, Justice Corthorn found that Patricia did not provide any anecdotal evidence about Sheila’s condition in the last 2.5 years of her life. In fact, the evidence on which she relies is not substantiated by any objective evidence and consists instead of speculation on her part. Thus, Patricia’s evidence did not meet the required threshold.

On the issue of undue influence, Patricia alleged that Katherine unduly influenced Sheila to abandon her relationship with Patricia, to appoint Katherine as sole executor, name Katherine as a beneficiary, and name her husband as a contingent beneficiary. On this issue Justice Corthorn referred to Young v Prychitko,^[4] which notes that for undue influence to exist, there must be coercion, and the influence imposed on the testator must be ‘so overpowering that the document reflects the will of the influencer and not that of the deceased’. Patricia testified that Sheila was a devotee of Saint Brother Andre Besette and that, once she learnt that Katherine was a relative of Besette, their friendship grew stronger, and also that in consequence Sheila trusted Katherine. Her Honour held that the evidence of the relationship between Sheila and Katherine and Sheila’s positive view of Katherine, even if accepted, was not sufficient to call the validity of the will into question but failed to meet the minimal evidentiary threshold. Moreover, Patricia did not adduce and was unable to point to any evidence to support the conclusion that Katherine attempted to influence Sheila.

On the issue of suspicious circumstances, Justice Corthorn, as one would expect, discussed the seminal case, Vout v Hay.^[5] It shows that suspicion regarding the execution of a will may be raised by circumstances that suggest lack of testamentary capacity, undue influence, and those that surround the preparation of the will. The case also confirms that the propounder of a will is assisted by the following rebuttable presumption: ‘Upon proof that the will was duly executed with the requisite formalities, after having been read over to or by a testator who appeared to understand it, it will generally be presumed that the testator knew and approved of the contents and had the necessary capacity’.

Her Honour noted that there was no evidence that the Will was executed without the required formalities. Indeed, Katherine’s evidence was sufficient to dispel any suspicion that Patricia attempted to raise. Moreover, the uncontested evidence was that Katherine was not involved in Sheila’s selection of a lawyer to draft the Will, in the substantive content of the Will, or in Sheila’s selection of an executor. Since any suspicion raised by Patricia was dispelled, the burden of proof reverted to her, but she failed to satisfy the minimal evidentiary threshold on the third issue either.

The court ruled that Katherine, as the successful party, was entitled personally and as executor to reasonable costs of both the motion and the application. Since Laura had delivered an affidavit in response to the court’s concern about whether she required a litigation guardian (which it turned out she did not), the court ruled that Laura was also entitled to costs for the preparation of the affidavit. The court directed Patricia to pay these costs to Katherine and Laura. Further, the court made a provision for costs submissions if required.

---

[1] 2024 ONSC 4006.

[2] 2016 ONCA 191, paras 86-89.

[3] 2017 ONSC 5368, paras 35, 40.

[4] 2022 ONSC 1502, paras 20-21.

[5] [1995] 2 SCR 876, at 889.

By Albert H. Oosterhoff 

1. Introduction

Having just written a blog on Graham v McNally Estate and Blais,^[1] a case that concerned the issue of the evidentiary threshold applicants must meet when they attack a will, it seems appropriate to write another blog on the more recent, but similar case, Bobby Gian and Vasiliki (Bessie) Giannopoulos,^[2] which addresses the same issue.

2. Facts

The testator, Fotios Giannopoulos, died in October 2022, survived by four children, Nick Giannopoulos, Bobby Giann, Bessie Giannopoulos, and Domniki Sakellaris. He had two major assets, a house in Toronto, and his dry-cleaning business and premises on Danforth Avenue. In his prior will of 2016, the testator directed that both properties be divided equally among his four children. However, he made a new will on 1 April 2021 in which he directed that his house be divided equally among Bobby, Bessie, Nick, and the children of Domniki, but left his business assets only to Nick. He named a family friend, Panagiota Papastafanou (‘Yiota’) as substitute beneficiary of the business assets if Nick predeceased his father. On 9 April 2021 the testator transferred the title to the Danforth property to himself and Nick as joint tenants.

Bobbie and Bessie (the appellants) applied for a declaration that their father lacked testamentary capacity or was unduly influenced by Nick and Yiota (the respondents) as of 1 September 2018, including when he made the 2021 Will and when he transferred the business assets into joint tenancy. They sought an order declaring he 2016 Will to be the testator’s valid last Will. The appellants then brought a motion for directions that would permit them to access the testator’s financial records, his lawyer’s files, and his medical records under r. 75.6 of the Rules of Civil Procedure.^[3] The application judge, Frederick L Myers J, dismissed the application and motion, holding that the applicants failed to meet the evidentiary threshold that would permit them to be granted access to the documents. In reaching his decision, his Honour applied the seminal case, Neuberger v York,^[4] which requires that a moving party under r. 75.06 must ‘adduce, or point to, some evidence which, if accepted would call into question the validity of the testamentary instrument that is being propounded’. In this ‘preliminary vetting process’ the application judge does not assess the truth of the evidence, but only assesses ‘whether the evidence, if accepted, would support the claim advanced’.

The appellants appealed and argued that the application judge:

1. made palpable and overriding errors in relation to the evidence about the testator’s testamentary capacity;
2. made palpable and overriding errors in relation to the evidence that undue influence was exercised over the testator;
3. applied an uneven standard in his treatment of the evidence; and
4. failed to provide sufficient reasons for dismissing the claim to set aside the Danforth transfer.

3. Analysis and Judgment

The court dismissed the appeal. It held that the application judge did not err in his analysis and his findings, and that it was open to him to find that the appellants’ evidence was insufficient to call the validity of the 2021 will or the Danforth transfer into question. It held further that in any event the respondents had successfully answered any challenge raised by the appellants.

Evidentiary background. The court noted that the testator was predeceased by his wife in 2016, that this took a large toll on him, and that he became depressed and unmotivated in running his business. Nick took over most of the testator’s care and worked in the dry-cleaning business. Bobby and Domniki were estranged from the testator. Bessie maintained a positive relationship with her father but lived in Florida with her family.

Yiota also supported the testator as he grieved the loss of his wife. She moved into his home during the Covid-19 pandemic to assist with his care, which allowed him to remain at home. At the end of 2018 the testator retired and went to Florida to spend time with Bessie and her family. While there, he suffered a couple of falls and a small stroke. However, the falls were caused by a potassium shortage that was cured by medication. He returned to Toronto in 2019 and was cared for in hospital. A geriatric assessment suggested that he had ‘an element of Alzheimer’s dementia’ and possibly a major depressive disorder. However, after he enrolled in a day program at the hospital, his mental state improved greatly. When he made his 2021 Will, he left a note with his lawyer in which he said that he left Domniki’s share to her children because he feared that she and her husband would squander his property and because Domniki had written him off as her father. The note also said that he left the Danforth property solely to Nick because he stood by him and cared for him.

Standard of Review

The court noted, as one would expect, that Justice Myers’ assessment of the evidence and findings of fact were owed considerable appellate deference, unless there was an error in principle.

Capacity

The court found that there were no palpable and overriding errors in Justice Myers’s findings. The testator was not in a downward cognitive spiral as alleged by the appellants. Instead, he suffered only from two discrete episodes of ill health in 2019 and 2021, which affected his capacity. However, as found by Justice Myers, those episodes had no bearing on the testator’s capacity when he executed the 2021 Will. Medical records at that time showed that his mental state had improved markedly and that he suffered no episodes of confusion. Thus, the appellants failed to meet the requisite evidentiary threshold on this issue.

Undue Influence

The appellants argued that the testator was isolated and dependent on the respondents when he grieved the loss of his wife and was dealing with family conflict. In their view, that explained why he benefited only the respondents. Justice Myers concluded that the appellants presented nothing more than ‘bald assertions of wrongdoing’ on the part of the respondents and that the evidence adduced by them was fully answered by the respondents. Among other things, the gerontologist who attended the testator noted that he frequently expressed his gratitude for the assistance given him by Nick and Yiota. The gerontologist did not note any concerns of abuse.

Uneven Treatment of the Evidence

The appellants argued that Justice Myers unfairly allowed criticisms of their motion counsel to impact his assessment of their credibility and that this resulted in his applying uneven scrutiny to their evidence. The court noted that Justice Myers recognized that the appellants might have little transparency into an abusive relationship if the gatekeeping caregiver covers his or her tracks. However, he concluded that the appellants’ allegations were not supported by the facts they presented, and that their suspicions were fully answered by the respondents. The court found that Justice Myers did not allow his criticism of the appellants’ motion counsel to cloud his credibility analysis and assessment of the evidence. Hence, he did not commit a palpable and overriding error, and therefore there was no basis for the court to interfere with Justice Myer’s assessment of the evidence.

Danforth Transfer



The court held that Justice Myer’s reasons for dismissing the challenge against the Danforth transfer were sufficient. That transfer was part of the testator’s estate plan and since it took place at almost the same time as the execution of the 2021 Will, the validity of both was one and the same issue. Hence, Justice Myers did not have to conduct a separate analysis of the validity of the transfer. His reasons for rejecting the concerns about the testator’s capacity and alleged undue influence regarding the Will were sufficient to dispose of the identical issues regarding the Danforth transfer.

---

[1] 2024 ONSC 4006, a decision of Justice Sylvia Corthorn.

[2] 2024 ONCA 928.

[3] RRO 1990, Reg 194.

[4] 2016 ONCA 191, para 89.

By: Oliver O’Brien

In Yvette Poirier v. the Estate of Paul Poirier,^[1] the court found that a property transfer purportedly made by Yvette Poirier (“Ms. Poirier”) to her son, Paul Poirier (the “Deceased”), was invalid on the grounds that she lacked the requisite decisional capacity to do so. In reaching their conclusion, the court considered two competing retrospective capacity assessments.

Background

Ms. Poirer has three children, namely: the Deceased (who passed away in 2021), Lyse Scharfe (the “Applicant”) and Denise Champagne. Ms. Poirier is aged 106 and suffers from advanced dementia. The Applicant brought the application as Ms. Poirier’s Attorney for Property and Personal Care. The Respondents in Poirier were the Deceased’s Estate, his widow, Lynda Lortie and their daughter, Jenny Lortie, who held title to the property in dispute.^[2]

Before his passing, the Deceased was Ms. Poirier’s Attorney for Property and Personal Care. In 2009, Ms. Poirier added the Deceased as a joint tenant to her home. In 2016, the Deceased allegedly had Ms. Poirier convey her joint interest in the property to him as her Attorney for Property (the “Impugned Transfer”). At the time of the Impugned Transfer, Ms. Poirier was not provided with independent legal advice or assessed for her capacity to transfer the property.^[3] Prior to the Deceased’s passing, he transferred the property to his wife.

The Applicant sought an order declaring that the Impugned Transfer was invalid for want of capacity and that the Deceased’s estate held the property in trust for Ms. Poirier.

Legal Issues

The central issue in Poirier was whether Ms. Poirier possessed the requisite decisional capacity to make the Impugned Transfer.

In Ontario, the legal criteria for the capacity to manage property is found the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (the “SDA”). Section 2(1) of the SDA provides that all adults enjoy the presumption of capacity to manage their property:

Presumption of capacity

2 (1) A person who is eighteen years of age or more is presumed to be capable of entering into a contract.

Moreover, section 6 of the SDA provides the legal criteria to determine if an individual is incapable of managing their property:

Incapacity to manage property

6 A person is incapable of managing property if the person is not able to understand information that is relevant to making a decision in the management of his or her property or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

Capacity Assessments

To assist the court in determining the legal issue of capacity, both the Applicant and the Respondents obtained retrospective capacity assessments opining on Ms. Poirier’s capacity in 2016.

The Applicant obtained an expert opinion from Dr. Joel Sadavoy (“Dr. Sadavoy”), a specialist in geriatric psychiatry, who opined that Ms. Poirier did not have the requisite capacity to make the Impugned Transfer. Dr. Sadavoy's report indicated that Ms. Poirier “did not have sufficient mental capacity to make competently reasoned decisions to transfer her home to Paul in that she would have been unable to appreciate the reasonably foreseeable consequences of the decision”.^[4] The report further indicated that Ms. Poirier’s reasoning and judgment were impaired by the presence of paranoid delusional thinking typical of persons suffering from advanced dementia. Moreover, Dr. Sadavoy highlighted medical records from a geriatric psychiatrist Dr. Carriere, who confirmed that Ms. Poirier was diagnosed with dementia in 2006 and that by 2010 she suffered from symptoms of significant dementia.^[5]

In contrast, the Respondents obtained an expert report from Dr. Alina Kaminska, a psychologist, who concluded that Ms. Poirier was capable of managing her property and understood the Impugned Transfer. Dr. Kaminska opined that there was no compelling evidence of cognitive limitations on the part of Ms. Poirier and enjoyed the presumption of her capacity to manage her property. Dr. Kaminska’s report found that Ms. Poirier’s cognitive status was likely comparable to her status in 2009 when she first transferred the property into joint tenancy with the Deceased.^[6]

The court preferred the opinions of Dr. Sadavoy and Dr. Carriere over Dr. Kaminska's. The court found that Dr. Sadovoy’s report persuasively described the factors which supported his opinion that Mrs. Poirier’s dementia, first diagnosed in 2006, had advanced by 2012, and clearly by 2016 to a level of severe dementia. Moreover, his analysis was made in close consideration with evidence provided by Ms. Poirier’s daughters and several physicians as to her behaviours and cognitive limitations.^[7]

Decision

Considering the analysis of each of the retrospective capacity assessments, the court found that Ms. Poirier lacked the requisite capacity to manage her property and make the Impugned Transfer. Accordingly, the Impugned Transfer was set aside thereby restoring the property to joint ownership between Ms. Poirier and the Deceased’s estate.^[8]

Concluding Comments

Poirer is example of how capacity assessments assist the court in making determinations regarding an individuals’ capacity. In these instances, is not uncommon for parties to each retain a capacity assessor with both potentially reaching different conclusions regarding a person’s capacity. As the Trier of Fact, the court’s role is to weigh the evidence before it to adjudicate on the issue of capacity, which is inherently complex.

---

[1] Lyse Scharfe in her capacity as Attorney for Property and Attorney for Personal Care of Yvette Poirier v. Estate of Paul Poirier, 2025 ONSC 482 (“Poirier”)

[2] Poirier at paras 6-15.

[3] Poirier at paras 2-3.

[4] Poirier at para 17.

[5] Poirier at para 17 and 25.

[6] Poirier at paras 18-20.

[7] Poirier at paras 26-27.

[8] Poirier at para 28.

By: Gabriella Banhara

In the recent decision of Francois v Francois^[1], 2025 ONSC 589, the court was faced with an interesting dilemma surrounding an allegedly incapable moving party who sought to vary the appointment of her guardian under a guardianship application. The court dismissed this motion, on the basis that the moving party appeared before the court without a litigation guardian, and due to the courts doubt that the moving party was truly incapable.

To be found incapable of managing property, s.6 of the SDA^[2] indicates that the court must find that an individual is unable to understand the relevant information required to make a decision, or to appreciate the reasonably foreseeable consequences of a decision or lack of decision.^[3]

The moving party, and the allegedly incapable, Stephanie Dubuisson (“Ms. Dubuisson”), was deemed incapable of managing her property on March 22, 2012, by a court order. At this time, Ms. Dubuisson was married, and the court had appointed her spouse as her guardian. Unfortunately, Ms. Dubuisson and her spouse later divorced, and her spouse could not be reached or located, as he had moved to Haiti. On this basis, Ms. Dubuission sought to appoint Mr. Bailey as her substitute guardian under s.26 of the Substitute Decision Act (“SDA”).^[4]

^

Rule 26 of the SDA provides the following on varying or substituting an appointment order:

26 (1) The court may vary an order appointing a guardian of property under section 22 or substitute another person as guardian, on motion in the proceeding in which the guardian was appointed. 1996, c. 2, s. 15.^[5]

In this proceeding, the court was agreeable that Ms. Dubuisson had standing to substitute Mr. Bailey as her guardian under s. 26.^[6] However, the court asserted that Ms. Dubuisson was unable to do so without a litigation guardian as she was deemed a person under disability as per s. 6 of the SDA.^[7] Counsel for Ms. Dubuisson stated that under Rule 7.01 (1)-(2) of the Rules of Civil Procedure she may appoint Mr. Bailey as her alternate guardian. Such sections set out the following:

Party under Disability

7.01 (1) Unless the court orders or a statute provides otherwise, a proceeding shall be commenced, continued or defended on behalf of a party under disability by a litigation guardian. O. Reg. 69/95, s. 2.^[8]

Substitute Decisions Act Applications

(2) Despite subrule (1), an application under the Substitute Decisions Act, 1992 to appoint a guardian of property or a guardian of the person may be commenced, continued and defended without the appointment of a litigation guardian for the respondent in respect of whom the application is made, unless the court orders otherwise. O. Reg. 69/95, s. 2; O. Reg. 281/16, s. 2.

The court found that Rule 7.01(2) was not applicable in Ms. Dubuisson’s circumstances, since this Rule is usually only applicable to “the prospective guardian” who is usually the applicant in such proceedings.^[9] Often Rule 7.01(2) would allow the prospective guardian to continue through the litigation without having to appoint an additional guardian for the proceeding. 

The court asserted that the Public guardian and Trustee (“PGT”) often assists in such matters, where they will act as the guardian for an individual under disability if they are unable to attain a guardian for a proceeding.^[10] However, the PGT declined to assist Ms. Dubuisson in this matter because they deemed that she was entitled to bring the motion, and the PGT was satisfied that she remained incapable to make decisions relating to her property.

The second issue of this proceeding related to Ms. Dubuisson’s “capacity to ask the court to rule that she remains a person who lacks capacity”.^[11] Ms. Dubuisson’s counsel asserted that he was comfortable taking instructions from “Ms. Dubuisson for the purpose of deciding who could be her guardian, as opposed to if she needed a guardian”.^[12] The court was not in favour of this distinction, or “technicality” as described by the court, which was put forward by Ms. Dubuisson’s counsel because it insinuated that Ms. Dubuisson was capable to some degree, or at least to sign a power of attorney for property. The court asserted that If Ms. Dubuisson was capable of signing a power of attorney document, it would have defeated the entire purpose of the guardianship application before the court in this proceeding.  

In response, Ms. Dubuisson’s counsel stated that it would be far too costly for Ms. Dubuisson to deliver a new power of attorney for property and initiate further proceedings to lift the guardianship order required to access her banking. Ms. Dubuisson’s counsel requested that the court overlook what he described as a “technicality”.^[13] 

The court found that this was not a mere technicality. The court was unable to hear from Ms. Dubuisson as she was represented by counsel, and even if so, the court would not have been able to utilise the information provided by Ms. Dubuisson herself, given she was deemed “incapable”. Moreover, the court was not equipped to conduct a capacity assessment of Ms. Dubuisson.^[14]

Considering the foregoing, the court asserted that it was unclear as to whether Ms. Dubuisson was truly incapable of managing her property. In addition, Ms. Dubuisson’s counsel stated he was able to successfully take instructions from her. 

The court concluded the endorsement by stating there were various other avenues that Ms. Dubuisson’s counsel could have proceeded in order to substitute her current guardian with another. This included “adding Mr. Bailey as applicant in substitution for Ms. Dubuisson’s former spouse”.^[15] On this note, the court stated the following:

[21] Ms. Dubuisson’s counsel asks me to provide a route to a quicker and less expensive outcome for his vulnerable client. Deciding whether such a thing exists and, if so, how to accomplish it, I dare say, is his role.^[16]

The court goes on to reflect on the gravity of ruling an individual as incapable of managing their property:

[2] The seriousness of depriving someone of their civil rights under such an order cannot be overstated. Courts are very careful to ensure that a person is truly in need of protection before someone else is put in charge of their property and ousts them from making the important financial decisions that affect their lives.^[17]

This decision demonstrates the sensitivity of guardianship proceedings and the difficulty of litigating with incapable individuals.

---

[1] Francois v. Francois, 2025 ONSC 589 (‘’Francois’’)

[2] Substitute Decisions Act, 1992, S.O. 1992, c. 30 at s.6 (“SDA”)

[3] Ibid at para 1

[4] Ibid at para 3

[5] SDA at s.26

[6] Francois at para 6

[7] Ibid at para 8

[8] R.R.O. 1990, Reg. 194: RULES OF CIVIL PROCEDURE at s. 7.01 (1) - (2)

[9] Francois at para 8

[10] Ibid at para 9

[11] Ibid at para 13.

[12] Ibid at para 23

[13] Ibid at para 14

[14] Ibid at para 14

[15] Ibid at para 19

[16] Ibid at para 21

[17] Ibid at para 2

STEP Global Congress, Rome

February 25 - 26, 2025

Attending: Kimberly Whaley

https://congress.step.org/

STEP Bahamas

March 12 - 15, 2025

Capacity Issues Panel Mervie Gone Wild -Considerations for the Vulnerable Client

Speaking: Kimberly Whaley

https://stepbahamasconference.com/

Osgoode Hall Law School Guest Lecture, Elder Law Class of Nimali Gamage

Predatory Marriage/Capacity to Marry

March 22, 2025

Guest Lecturer, Kimberly Whaley

LESA

April 11-14, 2025

Jointly Held Assets - Speakers: Kimberly Whaley, Nancy Lynn Golding KC, Helen R. Ward KC, Jennifer R. Lamb, Les Scholly

https://www.lesaonline.org/program/lesas-refresher-2025-wills-and-estates-victoria/  

Osgoode, Passing of Accounts & Fiduciary Accounting

April 15, 2025

Chair: Kimberly Whaley & Speakers: Albert Oosterhoff & Tracey Phinnemore

https://osgoodepd.ca/professional-development/short-courses-and-conferences/the-osgoode-intensive-program-in-wills-estates/

Cambridge Forum on Estate Planning & Litigation

April 27-29, 2025

Attending: Kimberly Whaley

https://www.cambridgeforums.com/forums/eplf/

Osgoode, Powers of Attorney and Guardianship

April 29, 2025

https://osgoodepd.ca/professional-development/short-courses-and-conferences/the-osgoode-intensive-program-in-wills-estates/

The International Academy of Estate and Trust Law

TIAETL, Greece

May 18 - 22, 2025

Academician AGM, Kimberly Whaley

University of Toronto: Medical Experts Course

September 11-12, 2025

The Role of the Medical Expert in Estate Litigation

TBD

Considerations in the Drafting Of Testamentary Spousal Trusts

Tessaro v. Gora, Ontario Superior Court Confirms 15-Year Limitation Period Applies from Date of Negligent Will Drafting

Is the Share of a Co-Operative Held By An Estate Subject to Tenancy In Common and Therefore The Presumption of Resulting Trust?

Shannon v Hrabovsky Appeal

Recovery of Fraudulently Obtained Funds

Articling Weekly No.7: Professional Responsibility Among Counsel

Jackson v Rosenberg Appeal

Articling Weekly No.6: List of Records a POAPC Must Keep – A Refresher!

Check out our recent Feature Series which are posted on our Blog:

1 WEL PARTNERS - SENIORS’ SERIES

2 WEL PARTNERS ON POWERS OF ATTORNEY: POA Weekly

3 WEL PARTNERS ON GUARDIANSHIP: Guardianship Weekly

4 WEL PARTNERS – DIGITIZING THE BUSINESS OF WILLS

5 WEL PARTNERS – ELDER LAW SERIES

6 WEL PARTNERS ON SOLICITOR'S NEGLIGENCE

7 WHAT REMAINS by Bryan Gilmartin

8 USING ENGLISH PROPERLY by Albert H. Oosterhoff

9 WEL ON CHARITIES SERIES by Oliver O'Brien

10 ARTICLING WEEKLY by Chhavi Monga

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