



COURT OF APPEAL FOR ONTARIO

CITATION: Dujardin v. Dujardin, 2018 ONCA 597

DATE: 20180629

DOCKET: C63016

Pepall, Brown and Trotter JJ.A.

BETWEEN

Loretta June Dujardin

Plaintiff (Appellant)

and

Noel Dujardin, Trustee of the Estate of Jacques
    Henry Dujardin

Defendant (Respondent)

Joseph J. Neal, for the appellant

Frederick E. Leitch, Q.C., for the respondent

Heard: March 27, 2018

On appeal from the judgment of Justice Alissa K. Mitchell
    of the Superior Court of Justice, dated November 9, 2016, with reasons reported
    at 2016 ONSC 6980.

Trotter J.A.
:

A.

introduction

[1]

This appeal concerns the validity of two wills executed by the late
    Jacques Henry Dujardin (Jack). Jack and his brother Noel jointly owned a farm
    property that had been in their family since 1958. In 2009, they executed
    mirror wills  personal and corporate  leaving their equal interests in the farm
    to each other.

[2]

When Jack died, he was married to Loretta June Dujardin (Loretta). He
    did not provide for her in his 2009 wills. However, he designated her as the
    sole beneficiary in a Registered Retirement Income Fund (RRIF), which was
    worth about $123,000 at the time of his death. Having been left nothing in the wills,
    Loretta challenged their validity. She contended that, as a result of chronic
    alcoholism, Jack lacked testamentary capacity. The trial judge dismissed
    Lorettas claim.

[3]

On appeal, Loretta argues that the wills should have been declared
    invalid, and that the trial judge erred in not allowing a doctor to provide
    expert testimony in support of her position. I would dismiss the appeal.

B.

General background

[4]

It is necessary to locate this dispute in the broader context of Jacks
    life, family history, and his relationship with his brother Noel.

[5]

Jack was born in Belgium in 1942. As a teenager, he immigrated to Canada
    with his parents and seven siblings in 1958. Until 1966, the family farmed
    tobacco on lands owned by others, and eventually on the land that is the
    subject matter of the corporate will in dispute. In 1967, Jacks parents bought
    this farmland and incorporated Dujardin Farming Limited.

[6]

Jacks mother died in 1980, and his father in 1983. Each of the siblings
    received a 12.5% interest in the farming corporation. Jack and Noel set about purchasing
    all of their siblings shares. The brothers lived on the farm together and ran
    the farming business as a true partnership. They shared the physical work,
    while Noel had a greater role in the financial aspects.

[7]

Jack met Loretta in 1982. They began a relationship in 1994 and she
    moved into the farmhouse late that year. Jack proposed marriage to Loretta in
    1997.

[8]

On February 27, 1998, after the brothers finally acquired all of the shares
    in the business, they executed mirror wills, leaving their entire estates to
    each other. This was before Jack married Loretta in 2000.
[1]
At the time, their lawyer was Douglas Gunn. He drafted the wills and provided
    legal services in relation to the farming business.

[9]

In August of 2006, when Jack and Noel met Mr. Gunn to deal with
    corporate matters, Mr. Gunn advised the brothers to reorganize their affairs by
    executing both corporate and personal wills. This would minimize probate fees.
    Mr. Gunn sent them draft wills on September 20, 2006. The brothers did not do
    anything with the wills for some time. On March 9, 2009, they attended at Mr.
    Gunns offices and executed the new wills. I will discuss this meeting in more
    detail below. As already noted, the brothers left their respective interests in
    the farm to each other.

[10]

The
    dispute in this case arises as a result of Jacks lifestyle and his related health
    problems. Jack had a difficult relationship with alcohol. The evidence
    established that, during the day, he was a productive worker. However, when he finished
    his work in the late afternoon, Jack would go into the Town of Aylmer to have a
    couple drinks. When he returned home, he drank into the night, until he fell
    asleep. Noel testified that Jack purchased 40 ounces of liquor each day.
    Despite his alcohol use, the evidence established that, around the time he
    executed his 2009 wills, Jack was able to function properly at work and in his
    business dealings. A parade of witnesses from the local farming community testified
    that, while they knew that Jack liked to drink, they noticed nothing wrong with
    his cognitive functioning.

[11]

In
    2007, at age 65, Jack suffered a heart attack and was hospitalized for two
    weeks. This was after attending Mr. Gunns office in 2006, but well before
    executing his 2009 wills. In the days following his heart attack, Jack was
    confused and not very communicative. He was on morphine at the time. However,
    those who visited him said that he soon came around and seemed more like
    himself.

[12]

The
    anchor for Lorettas attack on the wills is medical documentation from that
    hospitalization. In a discharge summary, Dr. Timothy Burns wrote:

The main problem was with cognitive dysfunction and confusion
    disorientation
thought to be
due to organic brain syndrome secondary to
    alcohol abuse. Over the next week or two his sensorium cleared somewhat.
    [Emphasis added.]

[13]

Other
    records confirmed Jacks improvement over the course of his hospital stay.
    Nevertheless, Dr. Burns wrote to the Ministry of Transportation suggesting that
    Jack should be tested before being permitted to drive. Dr. Burns saw Jack again
    in May of 2008 and noted no cognitive impairment as it related to his ability
    to drive. However, Jack was never able to reclaim his driving privileges.

[14]

After
    being released from hospital in 2007, Jack was abstemious for a time, but it
    would appear that he eventually returned to alcohol. He had another heart
    attack in 2010. Jack had a stroke and died on December 26, 2011.

C.

the trial

[15]

Leading
    up to the trial, Loretta was represented by counsel; by the time of trial, she
    was self-represented.

[16]

Early
    on in the proceedings, in 2012, Loretta filed a Notice of Objection to the
    issuance of a Certificate of Appointment of Estate Trustee, itemizing the
    following concerns: (a) the deceased lacked testamentary capacity, and (b) the 2009
    wills were not properly executed.

[17]

During
    the discovery process, when Loretta had counsel, it was clarified that undue
    influence was not in issue. Loretta confirmed this position at trial.
    Consequently, the trial proceeded on the issues of whether Jacks wills were
    properly executed and whether he lacked testamentary capacity.

[18]

At
    the beginning of the trial, counsel for Noel conceded that, because of Jacks
    chronic alcoholism, suspicious circumstances were present that cast the onus on
    his client to establish the validity of the wills. Accordingly, Noel, as the
    propounder of the wills, called his evidence first.

[19]

Loretta
    indicated her intention to call an expert witness, Dr. Martyn Judson, to
    testify that Jack lacked testamentary capacity due to organic brain syndrome.
    Counsel for Noel opposed the admission of this evidence and took the position
    that, if Dr. Judsons evidence were to be admitted, he would attempt to adduce the
    expert opinion of Dr. Maurice Hirst of Western University in reply.

[20]

The
    trial judge refused to admit Dr. Judsons evidence. Consequently, Noel did not
    attempt to lead expert evidence.

[21]

Based
    on the entirety of the evidence, the trial judge found that Jacks wills were
    properly executed, that he knew and approved of their contents, and that he had
    testamentary capacity at the time they were executed.

D.

issues on appeal

[22]

Loretta
    contends that the trial judge erred in ruling Dr. Judsons evidence inadmissible.
    She further argues that the trial judge erred in finding that: Jack knew and
    approved of the contents of his wills; Jack possessed testamentary capacity;
    and the wills were properly executed. On appeal, Loretta also attempts to
    introduce the new issue of whether the brothers lawyer, Mr. Gunn, received
    proper instructions to prepare the wills.

E.

analysis

(1)

The admissibility of Dr. Judsons evidence

[23]

Dr.
    Judson specializes in substance abuse treatment and addiction medicine. Prior
    to trial, Lorettas lawyer retained him to provide an opinion about Jacks
    testamentary capacity.

[24]

Dr.
    Judson never met Jack. His opinion was based on Jacks hospital records
    following his 2007 heart attack, and other documents associated with this
    litigation (including examination for discovery transcripts).

[25]

In
    his first of three reports, dated April 1, 2014, Dr. Judson briefly reviewed
    Jacks medical history, with emphasis on his hospitalizations. He noted
    references to organic brain syndrome in Jacks records and described the
    condition. Dr. Judson was of the opinion that Jack displayed a constellation of
    symptoms known as Wernicke-Korsakoff Syndrome. He concluded that, while Jack
    appeared to be significantly tolerant of alcohol and was able to function reasonably
    well physically, [n]evertheless, the influence of the Organic Brain Syndrome
definitely
would have impaired his comprehension and ability to understand the contents of
    any legal document which he signed in 2009 (emphasis added). Based on Jacks
    typical patterns of drinking, Dr. Judson suggested that Jack was either
    drinking or experiencing withdrawal when he attended Mr. Gunns office on March
    9, 2009. He offered the opinion that Jack lacked testamentary capacity,
    concluding: 
In all probability
Mr. Dujardin did not appreciate the
    significance of statements made by him in his lawyers office or the
    responsibilities associated with so doing (emphasis added).

[26]

In
    response to Dr. Judsons first report, Mr. Gunn obtained an opinion from a
    capacity assessor, who opined that Dr. Judsons conclusions were, at best,
    speculative. On June 17, 2014, Dr. Judson responded to the opinion of the assessor,
    denying that his initial opinion was mere speculation. He wrote, [i]n fact
    it is speculation to consider Mr. Dujardin not to have been impaired. After
    recounting his qualifications to make such judgments, Dr. Judson concluded his
    second letter by saying:

In summary, it is therefore
possible
to state that the
likelihood
that Mr. Dujardin was cognitively impaired as a result of alcohol consumption
    is far greater than the probability that he was not. That is not speculation
    but instead an unfortunate reality. [Emphasis added.]

[27]

Dr.
    Judson wrote a third letter on November 10, 2015, this time responding to letters
    prepared by doctors who had examined Jack during his life, and an expert report
    written by Dr. Hirst on July 30, 2014. Dr. Hirsts report raised serious doubts
    about Dr. Judsons diagnosis. In response, Dr. Judsons opinion became far more
    tentative. Confronting the suggestion that Jack did not have Wernicke-Korsakoff
    Syndrome, he wrote:

Even if the support for the presence of the syndrome is weak,
there
    is still the possibility that Mr. Dujardin may have not fully comprehended the
    legal advice provided to him on March the 9
th
, 2009 because of
    cognitive impairment.



In summary, if it is accepted that Mr. Dujardin experienced
    alcohol induced confusion on occasions,
there is a degree of probability
that he did not fully comprehend the details of the will that he signed.
    [Emphasis added.]

[28]

Counsel
    for Noel objected to the admission of Dr. Judsons evidence on the basis that
    he purported to give an opinion on the ultimate issue in the case  Jacks
    testamentary capacity, a matter to be determined by the trial judge based on
    all of the evidence. In addition, referring to
R. v. Mohan
, [1994] 2
    S.C.R. 9, and
White Burgess Langille Inman v. Abbott and
    Haliburton Co
.
, 2015 SCC 23, [2015] 2 S.C.R. 182, he argued that
    the evidence was inadmissible because it was not necessary, and that its
    admission would not be worth the time and cost involved. As already noted, if
    Dr. Judson were allowed to testify, reply evidence was anticipated.

[29]

In
    an oral ruling in which she refused to admit Dr. Judsons evidence, the trial
    judge observed that his revised opinion became significantly diluted from his
    original opinion and merely raises the possibility that Mr. Dujardin may have
    been suffering from a cognitive impairment making him unable to fully
    comprehend the legal advice provided on March 9, 2009. Concluding that Dr.
    Judsons opinion did not assist her on the testamentary capacity issue, the
    trial judge ruled as follows:

In accordance with the principles developed by the Supreme
    Court in
Mohan
and
White Burgess
, I exercise my discretion as
    gatekeeper of the evidence and find the evidence of Dr. Judson, in its
    totality, to be inadmissible. His watered-down opinion provides such little, if
    any, assistance to the court that the time consumed with his testimony and the
    testimony of responding experts outweighs any possible benefit to the court.

[30]

I
    see no error in the trial judges conclusion that the evidence was inadmissible
    on a cost/benefit analysis, in terms of balancing relevance, reliability and
    necessityagainst the counterweights of consumption of time, prejudice and
    confusion:
R. v. J.-L.J
.
, 2000 SCC 51, [2000] 2 S.C.R. 600, at
    para. 47. See also
White Burgess
, at paras. 24 and 54.

[31]

It
    would have been easy for the trial judge to have simply admitted Dr. Judsons
    evidence, and any opinion called in reply, postponing an exacting analysis of
    this body of evidence until the end of the trial. However, the modern approach
    to expert evidence requires more of trial judges. In
R. v. Abbey
, 2017
    ONCA 640, 350 C.C.C. (3d) 102, Laskin J.A. said, at para. 53, No longer should
    expert evidence be routinely admitted with only its weight to be determined by
    the trier of fact.

[32]

Dr.
    Judsons initial opinion was a categorical assertion about Jacks incapacity,
    but after some pushback by those of a different view, he could only offer a
    most tentative, if not speculative, opinion. And this was just on paper. It is
    unlikely that cross-examination would have leavened Dr. Judsons opinion in a
    manner that would have helped Lorettas cause. The trial judge was entitled to
    conclude that his testimony would be of no value in resolving the critical
    issue of testamentary capacity.

[33]

This
    case was fought and decided on the evidence of those who knew, interacted with,
    or treated Jack, not on the basis of experts who had never met or examined the
    man, and who could only offer tentative views on the ultimate issue the trial
    judge had to decide. This is a familiar state of affairs. In Ian. M. Hull &
    Suzanna Popovic-Montag,
Macdonnell, Sheard and Hull on Probate Practice
,
    5th ed. (Toronto: Thomson Reuters, 2016), the authors observe, at p. 61, that
    the question of testamentary capacity is a practical one that, so far as
    evidence based on observation is concerned, may be answered by laypersons of
    good sense as well as doctors. See also
Re Davis Estate
, [1963] 2
    O.R. 666 (C.A.), at p. 674.

[34]

Ultimately,
    the trial judge was best placed to assess the potential value of Dr. Judsons
    evidence. Her conclusion is entitled to deference, especially given that it turned
    on her role as gatekeeper: see
R. v. R.D.
, 2014 ONCA 302, 120 O.R.
    (3d) 260,

at para. 51, citing
R. v. Abbey
, 2009 ONCA 624, 97
    O.R. (3d) 330, at para. 97,

and
R. v. D.D
.
, 2000 SCC 43,
    [2000] 2 S.C.R. 275, at para. 13, and
Bruff-Murphy v. Gunawardena
,
    2017 ONCA 502, 414 D.L.R. (4th) 65, at para. 41.

[35]

In
    oral argument, counsel for Loretta argued that, because she was
    self-represented, the evidence should have been received in any event,
    especially since she was cross-examined on some of Jacks medical records. I
    disagree.

[36]

First,
    in cross-examination, Lorettas opinion about Jacks mental functioning was
    tested by reference to the observations of the doctors who treated him. These
    documents had been assembled and submitted by Loretta as part of her case.
    There was no unfairness in this process.

[37]

Second,
    it is well-accepted that trial judges have special duties to self-represented
    litigants, in terms of acquainting them with courtroom procedure and the rules
    of evidence:
Davids v. Davids
(1999), 125 O.A.C. 375, at para. 36.

However,
    a trial judges duty to assist has limits. It does not entail bending the rules
    of evidence in an attempt to compensate for the lack of representation. The
    fair trial rights of opposing parties must be respected. As Brown J.A. said in
Sanzone
    v. Schechter
, 2016 ONCA 566, 402 D.L.R. (4th) 135, at para. 22: A
    defendant is entitled to expect that a claim of liability brought against it
    will be decided by the same rules of evidence and substantive law whether the
    plaintiff is represented by counsel or self-represented. Consequently, when
    dealing with expert opinion evidence, the gatekeeper function has no less of a role
    to play merely because one of the parties is self-represented.

[38]

In
    this case, the trial judge properly exercised her discretion. I would dismiss
    this ground of appeal.

(2)

Instructions to prepare the wills

[39]

Loretta
    argues that there was no evidence that Mr. Gunn obtained proper instructions to
    prepare Jacks wills. I would decline to address this issue in full because it
    was not listed in the Notice of Objection, nor did Loretta raise it with the
    trial judge when asked to confirm the issues to be determined at trial.

[40]

At
    trial, some of Lorettas questions and submissions touched on this matter, but
    it was not fully addressed. It would be unfair to Noel to consider this issue
    now on an inadequate record. However, I note in passing that, although the
    evidence was somewhat vague on this issue, the trial judge appeared to accept
    that Mr. Gunn received instructions to prepare the wills, even if he did not
    make a note of it. In any event, the brothers attended at his office 2 ½ years
    after the wills were prepared, willing to execute them. Thus, the record does
    not suggest that Mr. Gunn acted without instructions.

(3)

Validity of the wills

[41]

Loretta
    argues that the trial judge erred in finding that Jack had testamentary capacity,
    and in failing to specifically address Jacks knowledge and approval of the
    wills contents. In response, Noel contends that the trial judge did address
    knowledge and approval, along with testamentary capacity. He asserts that the
    trial judges findings are grounded in the evidence and admit of no palpable or
    overriding error.

[42]

Before
    evaluating these claims in more detail, I set out the framework for assessing
    the validity of a will. Ultimately, I conclude that the trial judge committed
    no palpable or overriding error in finding that Jack possessed testamentary
    capacity. I also find that, while the trial judge did not separately address the
    concepts of knowledge and approval, her findings about testamentary capacity also
    enveloped those concepts.

(i)

The framework

[43]

Instead
    of traveling back through the mists of time, drawing upon age-old common law authorities
    on testamentary capacity, I start with the recent decision of this court in
Neuberger
    v. York
, 2016 ONCA 191, 129 O.R. (3d) 721. In this decision, Gillese J.A.
    provides a helpful outline of what is required to prove a will, at para. 77:

Proving a will in solemn form requires the propounder of a will
    to prove, in open court upon notice to all parties having a financial interest
    in the estate, that the will was duly executed, the testator had testamentary
    capacity and that the testator had knowledge and approval of the contents of
    the will: R. Hull & I. Hull,
Macdonell, Sheard and Hull on Probate
    Practice
, 4th ed., (Toronto: Carswell, 1996), at p. 315.

See also Brian A. Schnurr,
Estate Litigation
,
    2d ed., vol. 1 (Toronto: Thomson Reuters, 2017), at pp. 2-1 to 2-6.

[44]

The
    propounder of a will has the onus of proving that it was properly executed, in
    accordance with the
Succession Law Reform Act
, R.S.O. 1990, c. S.26 (
SLRA
),
    and also that the testator knew and approved of its contents: see
Vout v.
    Hay
, [1995] 2 S.C.R. 876, at para. 19. Upon certain preconditions being
    met, the propounder benefits from a presumption of knowledge and approval, as
    well as testamentary capacity. As Sopinka J. explained, at para. 26:

Upon proof that the will was duly executed with the requisite
    formalities, and 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 testamentary capacity.

[45]

This
    presumption is upended when there are suspicious circumstances (1) surrounding
    the preparation of the will, (2) calling into question the testators capacity,
    or (3) tending to show that the testators free will was compromised by coercion
    or fraud. As Sopinka J. said, at paras. 26-27:

Suspicious circumstances in any of the three categories to
    which I refer above will affect the burden of proof with respect to knowledge
    and approval. The burden with respect to testamentary capacity will be affected
    as well if the circumstances reflect on the mental capacity of the testator to
    make a will.



Where suspicious circumstances are present, then the
    presumption is spent and the propounder of the will reassumes the legal burden
    of proving knowledge and approval. In addition, if the suspicious circumstances
    relate to mental capacity, the propounder of the will reassumes the legal
    burden of establishing testamentary capacity.
Both of these issues must be
    proved in accordance with the civil standard. There is nothing mysterious about
    the role of suspicious circumstances in this respect. The presumption simply
    casts an evidentiary burden on those attacking the will. This burden can be
    satisfied by adducing or pointing to some evidence which, if accepted, would
    tend to negative knowledge and approval or testamentary capacity. In this
    event, the legal burden reverts to the propounder. [Emphasis added.]

[46]

Thus,
    where suspicious circumstances relate to the testators mental capacity, they
    have the effect of displacing both the presumption in favour of knowledge and
    approval and that in favour of testamentary capacity. The broad effect of the
    spent presumption is demonstrated in
Stekar v. Wilcox
, 2017 ONCA 1010,
    287 A.C.W.S. (2d) 199, where the trial judge found that there were suspicious
    circumstances surrounding the making of the challenged will, including that at
    that time, the deceased 
was of
    questionable capacity due both to his historical and recent health issues and
    hospitalization (para. 6). This court held, at para. 8:

The trial judge held, correctly, that the
    [propounder] bore the burden of proving the Deceaseds testamentary
    capacity.  The presumption of testamentary capacity otherwise applicable
    was displaced by the suspicious circumstances regarding the preparation and
    execution of the 2012 Will.
It therefore fell to the [propounder], as
    a matter of law, to establish the Deceaseds testamentary capacity, as well as
    his knowledge and approval of the 2012 Will
: see for example,
Vout v.
    Hay
..
. [Emphasis
added.]

See also
Orfus Estate v. The Samuel and Bessie
    Orfus Family Foundation
, 2013 ONCA 225, 304 O.A.C. 349, at paras. 83-84;
    Schnurr at pp. 2-18 to 2-19.

[47]

In
    this case, counsel for Noel acknowledged the presence of suspicious
    circumstances, and those circumstances related to Jacks mental capacity. Consequently,
    the burden fell upon Noel, as the propounder of the wills, to establish that
    Jack knew and approved of their contents, and that he had testamentary
    capacity.

(ii)

Formal requirements satisfied

[48]

The
    trial judge properly addressed the formal requirements of the validity of the
    wills under s. 4 of the
SLRA
. In accordance with this section, there
    was ample evidence from Mr. Gunn, his law clerk Nancy Tuck, and Noel to support
    the conclusions that: (1) Jack signed his wills at the end of each document,
    (2) he signed them in the presence of two witnesses (Mr. Gunn and Ms. Tuck), and
    (3) the witnesses signed the wills in Jacks presence.

[49]

Mr.
    Gunn had known Jack and Noel since 1997. He drafted their 1998 wills, which
    were in substance the same as the 2009 wills. Mr. Gunn had been involved in the
    affairs of Dujardin Farms Limited, preparing annual corporate resolutions for
    the brothers to sign. According to Mr. Gunn and Ms. Tuck, the brothers came into
    the office in August of 2006 to sign annual corporate documents. Mr. Gunn
    recommended that they execute both personal and corporate wills, the latter
    dealing with shares in the corporation. Mr. Gunn recommended this course of
    action for tax purposes. The wills were drafted and sent to the brothers on
    September 20, 2006.

[50]

Mr.
    Gunn testified that, just like in the 1998 wills, neither Jack nor Noel wished
    to make provisions for anyone else. The brothers were very, very close to each
    other and they were not thinking far beyond the one benefitting the other, if
    one were to die.

[51]

When
    the brothers executed their wills on March 9, 2009, they had been in possession
    of the documents for two and a half years. On that day, Mr. Gunn read one each
    of the corporate and personal wills. He proceeded in this way because they were
    mirror wills. They were signed and witnessed immediately afterward.

[52]

Ms.
    Tuck did not believe that either of the brothers had any difficulty
    understanding her. She noticed nothing unusual about Jack. She did not think
    that he had been drinking that day. If Jack had been drinking, she would have
    been aware of it. As Ms. Tuck explained:

I have the best nose in town. I would smell it. You know, I
    constantly look at people. I watch for visual cues. I make sure people are
    listening to me. I speak slowly. I make sure people understand, especially
    something as important as that. So, I went from face to face making sure people
    were giving me eye contact and I do that with everybody.

[53]

On
    the day that the wills were executed, Mr. Gunn had no reason to believe that
    Jack had been drinking. He had never known Jack to attend his office after
    consuming alcohol. He had no problems communicating with Jack. He said, I
    always thought that he was completely with it. Moreover, the brothers were
    fully aware of the assets at their disposal, which were principally the shares
    in the farming business.

[54]

Mr.
    Gunn testified that when he drafted the wills in 2006, he knew that Jack was married.
    In a March 16, 2009 memo, Mr. Gunn recounted the meeting with the brothers on
    March 9, noting, They said they didnt have any children and neither of them
    were married, although Jack said that he was about half married at this time. I
    dont know exactly what that means.

[55]

Noel
    said that he drove himself and Jack to Mr. Gunns office on March 9, 2009. They
    dealt with corporate matters, as well as the wills. Jack did not have anything
    to drink before attending. Mr. Gunn read one set of the wills out to the two of
    them. Noel understood the contents of the wills. It was his impression that
    Jack understood what he was doing when he signed his own wills.

[56]

The
    trial judge found that the Noel, as propounder of the wills, had the onus of
    proving compliance with the
SLRA
. At para. 20, she said, The
    formalities have been proven and, therefore, it is presumed Jack knew of and
    approved the contents of the wills. There is no basis to disturb this finding,
    which rests on a very solid evidentiary foundation.

(iii)

Suspicious circumstances and the displaced presumption

[57]

As
    the trial commenced, counsel for Noel acknowledged the presence of suspicious
    circumstances. He said, There really is no question that [Jack] was a
    dedicated drinker and there is medical evidence which shows some effect of that
    on him at various times, and for the purposes of our procedure I accept that
    the proponent bears the obligation
to prove the will in its solemn form

    (emphasis added). During the ensuing colloquy with the trial judge, counsel
    seemed to agree that, in addition to bearing on testamentary capacity, he also
    faced the burden of proving knowledge and approval. This was later clarified in
    closing submissions, when counsel said, Im gonna start with due execution,
    knowledge and approval because that is something that we have to demonstrate on
    a balance of probabilities because my client bears the burden.

[58]

In
    her reasons, the trial judge addressed the presence of suspicious
    circumstances, both in terms of the evidence and counsels concession. As she
    said at para. 24, The onus now shifts to Noel as propounder of the wills to
    prove on a balance of probabilities that Jack had testamentary capacity on
    March 9, 2009.

[59]

I
    agree with counsel for Loretta that, on its face, this statement is incomplete.
Vout v. Hay
required that Noel establish testamentary capacity, in
    addition to knowledge and approval, all on a balance of probabilities. While
    the trial judge did not mention knowledge and approval in this passage, she
    addressed both of these requirements in her analysis of testamentary capacity.
    She specifically referred to knowledge and approval in her conclusions: see
    para. 44.

(iv)

Testamentary capacity, knowledge, and approval all proved

[60]

The
    trial judge commenced her analysis of testamentary capacity by setting out its
    constituent elements. Relying on
Lata v. Rush
, 2012 ONSC 4543, 219
    A.C.W.S. (3d) 1008, at para. 32, and
Royal Trust Corp. of Canada v.
    Saunders
, [2006] O.J. No. 2291 (S.C.), at para. 58, the trial judge stated,
    at para. 25:

Testamentary capacity is established where the testator:

1.

understands the
    nature and effect of the will;

2.

recollects the
    nature and extent of his or her property;

3.

understands the
    extent of what he or she is giving under the will;

4.

remembers the
    people he or she might be expected to benefit under his or her will; and

5.

understands the
    nature of the claims that may be made by persons he or she is excluding under
    the will.

The trial judge turned each of these elements into a
    question and answered all of them in the affirmative. She provided careful
    reasons. The evidence amply supported her conclusions.

[61]

The
    issues of knowledge and approval were addressed in the trial judges analysis
    under item 1. She found that Jack was aware that the corporation, in which he
    held an equal share with Noel
[2]
,
    owned the farmland on which they worked, and the farmhouse where they lived, for
    their entire adult lives. She found, at para. 26:

He understood the need to have a separate corporate will to
    avoid payment of probate tax. He understood that he and Noel were leaving the
    other their respective shares in the corporation and other assets because they
    were business partners. Understanding that Loretta would not benefit under the
    will, Jack took steps to provide for Loretta outside the will by setting up a
    RRIF.

[62]

The
    2009 wills must also be considered in their historical context. In 1998, the
    brothers had executed mirror wills to the same effect. As Mr. Gunn testified,
    at that time, the brothers were adamant about only benefiting each other in
    their wills. This intention persisted in 2006 when they discussed preparing their
    personal and corporate wills with Mr. Gunn.

[63]

On
    the evidence before the trial judge, there was a sound basis to satisfy the
    knowledge and approval requirements. Absent any palpable and overriding errors,
    and there are none, the trial judges findings cannot be disturbed.

[64]

I
    reach similar conclusions on the issue of testamentary capacity. I do not
    intend to comb through the trial judges reasons under each of the five
    questions she posed. The evidence supports her overall conclusion that, while
    Jack had his issues with alcohol, and his health suffered because of it, he was
    of sound mind when he executed his 2009 wills.

[65]

There
    was a proper basis to conclude that suspicious circumstances existed concerning
    Jacks state of mind. Jacks 2007 hospital stay supplied the evidentiary
    foundation needed to cast the burden on Noel. However, he overcame that burden.

[66]

Generally,
    the manner in which Jack disposed of his property made sense in the context of
    his life and familial relationships. As the trial judge said, at para. 31,
    Jack shared a lifelong partnership with Noel as friends, brothers and business
    partners. Noel, in turn, shared the same intention. Moreover, their 2009 wills
    were for all intents and purposes identical to their 1998 wills.

[67]

On
    the other side of the equation, there was an abundance of evidence that Jack
    did not share a close relationship with Loretta. The trial judge did not accept
    Lorettas testimonial protestations to the contrary. Nevertheless, Jack did
    provide for Loretta outside of the will, in the form of a RRIF. In the six
    months before Jacks death, Loretta received income from the farming
    corporation for what she claimed to be her consulting services. She also
    received a Canada Pension Plan death benefit and she receives monthly dependent
    income from CPP. As the trial judge said, at para. 35, The RRIF and other
    monies provided to Loretta for her direct or indirect benefit were an
    appropriate means by which to provide for Loretta as his spouse.

[68]

There
    is no doubt that Jack was in rough shape when he arrived at the hospital in the
    middle of his heart attack in 2007. He was in a great deal of pain. He was
    given morphine. He appeared confused for a time by friends and family, but he
    improved leading up to his discharge. This episode led Dr. Burns to posit the
    possibility of organic brain syndrome secondary to alcohol abuse.

[69]

However,
    this assertion must be examined carefully. The trial judge noted, at para. 43,
    that no formal diagnosis of this condition was ever made, nor was any formal
    testing performed. There was no autopsy. Moreover, Dr. Burns saw Jack on May 8,
    2008, and noted that he was alert and well oriented, with no evidence of
    cognitive impairment.

[70]

Most
    importantly, the trial judge found as a fact that there was no evidence of any
    cognitive impairment affecting Jacks capacity on the day that the wills were
    executed on March 9, 2009. This conclusion was well-supported by the evidence
    of Mr. Gunn, Ms. Tuck, and Noel. As the trial judge said, at para. 43:

At the time he executed his wills, the effects of the heart
    attack on Jacks cognitive abilities were more than a year and a half behind
    him and his death was more than two and a half years in front of him.

[71]

I
    acknowledge that the trial judge made one puzzling comment in this same
    paragraph, when she said, Chronic alcoholism, on its own, is not enough. Not
    all chronic alcoholics suffer from organic brain syndrome. The causal link does
    not exist on the evidence before me. There was no evidence to support this
    scientific observation. I am unclear of its source.
[3]
However, the finding was not critical to the trial judges ultimate conclusion
    about Jacks testamentary capacity, which was based on a plethora of evidence
    from those who were in Jacks life at the time he executed his wills. As Mr.
    Gunn said, Jack was always with it, just as he was on that day. Noel and Ms.
    Tuck were of the same view.

[72]

Lastly,
    the appellant points to the trial judges ultimate conclusions about capacity,
    knowledge, and approval and suggests that she did not observe the displaced
    presumption triggered by suspicious circumstances. I disagree. After reviewing
    all of the evidence, the trial judge said, at para. 44:

The medical evidence is insufficient to support a finding that
    Jack suffered from a debilitating mental condition preventing him from
    understanding and approving the contents of his wills and the claims which
    might be made against him.
In fact, there is ample evidence to support a
    finding that, on a balance of probabilities, Jack met the test for testamentary
    capacity and had knowledge of and approved the contents of the wills on March
    9, 2009 and so find thaton March 9, 2009 Jack Dujardin had testamentary
    capacity
. [Emphasis added.]

Read as a whole, this passage reflects a proper
    application of the burden.

[73]

I
    would dismiss this ground of appeal.

F.

conclusion and disposition

[74]

I
    would dismiss the appeal. In doing so, I repeat the observation made by trial
    judge. Even though Loretta will take nothing under Jacks wills, she may have
    entitlements to be determined under ss. 5(2) and 6(10) of the
Family Law
    Act
, R.S.O. 1990, c. F.3.

[75]

Lastly,
    at the conclusion of the hearing, counsel agreed upon the proper quantum of costs
    of the appeal, depending upon which side succeeded. On this basis, I would
    order costs to the respondent in the amount of $16,000, inclusive of
    disbursements and HST.

Released: SEP JUN 29 2018

G.T. Trotter J.A.

I agree. S.E. Pepall J.A.

I agree. David Brown J.A.





[1]

Jacks marriage to Loretta had the effect of revoking this
    will:
Succession Law Reform Act
, R.S.O. 1990, c. S.26, s. 16.



[2]

The trial judge noted in a footnote that 
Noel testified that he held one additional share although the financial
    and corporate records for the corporation indicate the brothers owned the
    shares 50/50. Nothing turned on this issue.



[3]

It may have been in reference to
Lata v. Rush
, an
    authority the trial judge relied upon, in which Hainey J. said, at para. 30: Alcoholism
of sufficient extent and duration to cause brain damage
may affect
    testamentary capacity although even a habitual drunkard while not under the
    excitement of liquor is capable of making a valid will (emphasis added).


