



COURT OF APPEAL FOR ONTARIO

CITATION: Ali v. Fruci, 2018 ONCA 41

DATE: 20180122

DOCKET: C62500

Strathy C.J.O., Hourigan and Miller JJ.A.

BETWEEN

Lorilee Ali

Plaintiff

(Appellant)

and

Mary Fruci and Robert David Willis

Defendants

(Respondents)

Christopher McClelland, for the appellant

Robert Budgell and Lisa Thompson, for Mary Fruci

Kenneth Garland, for Robert David Willis

Heard: January 15, 2018

On appeal from the judgment of Justice P.R. Sweeny of the
    Superior Court of Justice, dated June 30, 2016.

REASONS FOR DECISION

[1]

The appellant, Lorilee Ali, appeals the
    judgment of the trial judge dismissing her action seeking to have certain wills
    of Florence Louisa Blackburn declared invalid.

[2]

Ms. Ali was the great-niece of Ms.
    Blackburn, who died in June 2007. Over the course of a five-year period between
    1998 and 2003, Ms. Blackburn executed three wills and two codicils.

[3]

In Ms. Blackburns 1998 will and two
    codicils executed in 1999, Ms. Ali was an estate trustee and the residual
    beneficiary. In wills created in 2000 and 2003, Ms. Ali was neither estate
    trustee nor beneficiary. Instead, in the 2000 will the respondents Mary Fruci
    and Robert Willis were beneficiaries and were respectively the estate trustee
    and alternate estate trustee. Pursuant to the 2003 will, Ms. Fruci was the
    residual beneficiary and Mr. Willis was the estate trustee. Mr. Willis was also
    entitled to the transfer of Ms. Blackburns home upon her death.

[4]

Ms. Ali commenced an action seeking to
    invalidate the 2000 and 2003 wills on the basis of lack of testamentary
    capacity, lack of knowledge and approval of contents, and undue influence.
    After a six-day trial Ms. Alis action was dismissed. The trial judge made a
    costs award in which he ordered Ms. Ali to pay Ms. Frucis costs in the amount
    of $42,000 and Mr. Willis costs in the amount of $40,000.

[5]

On appeal, Ms. Ali submits that the trial
    judge misapprehended the medical evidence regarding the issue of Ms.
    Blackburns testamentary capacity. Further, she submits that the trial judge
    erred in failing to distinguish between Ms. Blackburns capacity to manage property
    and financial affairs and her testamentary capacity.

[6]

The appellant acknowledged that the trial
    judges findings of mixed fact and law are entitled to deference, absent a
    palpable and overriding error.

[7]

The trial judge found that Ms. Ali failed
    to establish the existence of special circumstances and, therefore, the
    presumption of testamentary capacity was not rebutted. We are not persuaded
    that the trial judge erred in making that finding.

[8]

In considering the issue of testamentary capacity,
    the trial judge carefully and thoroughly examined the evidence, including the
    evidence of Ms. Blackburns doctor and other professional witnesses who
    testified as to her capacity.  His conclusion that Ms. Blackburn had testamentary
    capacity was fully supported by the evidence, including the evidence of the
    respondents, which he accepted.  We are not persuaded that there is any basis
    for appellate interference with that conclusion.

[9]

We also see no error in the trial judge
    making reference to Ms. Blackburns capacity to manage her property and
    financial affairs in his analysis of her testamentary capacity. That was
    relevant evidence that he was entitled to rely upon. The trial judge identified
    the correct legal test for testamentary capacity and properly applied it to the
    evidence.

[10]

The appeal is dismissed. Ms. Ali shall
    pay the costs of the appeal to Ms. Fruci and Mr. Willis jointly in the all-inclusive
    total amount of $12,000. Those costs are not payable from the estate.

G.R. Strathy C.J.O.

C.W. Hourigan J.A.

B.W. Miller J.A


