



COURT OF APPEAL FOR ONTARIO

CITATION: Bayford v. Boese, 2021 ONCA 442

DATE: 20210622

DOCKET: C67599

Doherty, Nordheimer and Harvison Young JJ.A.

BETWEEN

Brenda Bayford

Plaintiff (Respondent)

and

Brian
    Boese
, Kaitlyn Boese, Alexander Boese,

Erin McTeer and Michelle
    McTeer

Defendants (
Appellant
)

Earl A. Cherniak, Q.C., Ian M. Hull and Doreen Lok Yin
    So, for the appellant

Taayo Simmonds, for the respondent

Heard: December 16, 2020 by video conference

On appeal from the
    judgment of Justice Sylvia Corthorn of the Superior Court of Justice, dated October
    1, 2019.

Harvison
    Young J.A.:

[1]

The appellant, Brian Boese, appeals from the
    trial judges judgment declaring that his brother Bruces will had been validly
    executed in accordance with s. 4(1) of the
Succession Law Reform Act
, R.S.O. 1990, c. S.26 (SLRA)
. The only issue on this appeal is whether the trial judge erred in
    finding that the respondent Brenda Bayford had discharged her burden to prove
    the formal validity of the will, which she claimed to have found a number of
    weeks after his death in June 2015.

[2]

For the reasons that follow, I conclude that the
    appeal must be allowed on the grounds that the trial judge fell into palpable
    and overriding error. Having carefully reviewed the record before us and the
    submissions of counsel, I am of the view that the trial judge misunderstood the
    appellants position and, as a result, mistakenly considered the expert
    evidence to be irrelevant. This tainted her approach to the rest of the
    evidence.

(1)

Factual background

[3]

Bruce Boese was the owner of a farm. He never married and had no
    children. Brenda Bayford was a long-time friend of Bruce. She had assisted
    Bruce with the operation of the farm for the two decades before his death and
    described him as her best friend. Bruce executed a will in 1992, which named
    his parents as the sole beneficiaries of his estate. Because they had
    pre-deceased Bruce, Bruces estate would pass on an intestacy to Brian (50%)
    and the two daughters of his deceased sister Rhonda (50%) in the absence of a
    subsequent valid will.

[4]

In 2009, Bruce named Brenda as his attorney for property and personal care.
    In the summer of 2013, Ms. Fraser, the legal assistant of Bruces long-time lawyer,
    Timothy Colbert, prepared a draft will. There was no allegation that the substantive
    terms of the will reflected anything other than the instructions given by Bruce
    to Mr. Colbert. Ms. Fraser prepared the will based on instructions from Mr.
    Colbert, and it was sent to Bruce for review and comment. Bruce did not,
    however, attend at Mr. Colberts office to revise and/or execute that document
    before he died. There is no dispute that the 2013 draft will named Brenda as
    the sole trustee of the estate nor that it left her the farm property.

[5]

The 2013 will is dated August 15, 2013. The date is typed and appears on
    the third and final page of the document. It has the word DRAFT stamped on
    every page. Two copies were marked as exhibits at trial. One copy included only
    Bruces signature with no witness signatures (Version 1). Version 2
    included Bruces signature and those of the two witnesses, Ms. Gordon and Ms.
    Desarmia.

[6]

The central factual issue at trial was whether, as Brenda claimed,
    Version 2 had been signed and witnessed before Bruces death, or whether, as
    Brian claimed, the witnesses signatures had only been added after Bruces
    death and after Brenda discovered that Version 1 was not valid without the
    signatures of witnesses.

[7]

After Bruces death, Brenda searched for a will. She testified that she
    first found Version 1 of the 2013 will that had only Bruces signature, but not
    those of the witnesses. She took it to Mr. Colberts office the day after
    Bruces death and testified that she was surprised to find that Mr. Colberts
    office did not have a fully executed copy of the Will. On that occasion, Mr.
    Colberts assistant, Ms. Fraser, made a copy of the original of Version 1 and
    returned it to Brenda. Although there is no dispute that Ms. Fraser also
    advised Brenda on that occasion that, Version 1 was not valid without having
    been witnessed, other aspects of that conversation were disputed and will be
    discussed below.

[8]

Brendas evidence, accepted by the trial judge, was that a few weeks
    later, after having run into the one of the two witnesses who subsequently
    testified that they witnessed Bruce sign the will on August 15, 2013, she
    returned to Bruces house and searched again. This time, she testified, she
    found Version 2, signed and witnessed, on top of a kitchen cupboard, and not in
    the filing cabinet where she had found Version 1.

[9]

Brians position at trial was that Brenda, with the cooperation of Ms.
    Desarmia and Ms. Gordon, created Version 2 after Bruces death, and after she
    discovered that Version 1, though signed, was not valid. The fact that the
    original of Version 1 was never produced at trial supported this inference, as
    did the numerous inconsistencies in Brendas evidence at trial, all of which
    the trial judge resolved in her favour. In particular, her explanations as to
    what happened to the original Version 1 were inconsistent and lacking in
    credibility.

[10]

On
    appeal, Brian maintains his position that the reason that the original of
    Version 1 has never been produced is that this is the document that was
    witnessed at some point in the weeks following Bruces death. His central
    argument is that the trial judge misapprehended the content and significance of
    expert evidence which was that Bruces signatures on Version 1 and Version 2
    were copies of one another, and that this misapprehension tainted the rest of
    her findings. The handwriting expert was called to compare the signatures
    between Version 1 and Version 2. At trial, neither original version was
    available, and so the trial judge, and the handwriting expert, had to rely on
    the photocopies.

[11]

Brenda
    has filed a motion for fresh evidence because the original of Version 2 has
    been found, having been produced by her former lawyers. As I will explain later
    in these reasons, I would not admit this fresh evidence as it is unlikely  to
    be conclusive of the issues on appeal, and it is not necessary to deal with the
    issues fairly.

(2)

The evidence

[12]

Because
    a number of inconsistencies in the evidence form part of the context for the
    assessment of the expert opinion, it will be useful to set them out along with
    the trial judges findings on those points.

(a)

The whereabouts of the original of Version 1

[13]

No
    original of either Version 1 or Version 2 was produced at trial. Brenda
    testified at trial that after she found Version 2, she visited a law firm and
    left the originals of both Version 1 and Version 2 with the lawyer she retained.
    Under cross-examination, however, she was taken to her examination for
    discovery where she was asked what had become of the original of Version 1 and
    responded that she had misplaced it. When presented at trial with that
    response, she stated that she did not remember that series of questions, saying
    that I know it went to the lawyer, and I may have said that, but everything
    went to my lawyer.

[14]

The
    trial judge found that the answer at trial was simply a correction of her
    answer at discovery. She went on to observe that the existence of the original
    of Version 1 does not affect the validity of Version 2 (at para. 61). This
    raises the concern that the trial judge was not alive to the appellants
    position that the reason there was no original of Version 1 is that it had
    become Version 2. She also held, at para. 63, that [i]t was not incumbent upon
    Ms. Bayford to produce the original of Version 1 but rather upon Brian as it
    was significant to his theory of the case.

(b)

The evidence of Ms. Desarmia and Ms. Gordon

[15]

Ms.
    Desarmia and Ms. Gordon, friends of Brenda who also knew Bruce, both testified
    that they had gone to Bruces farm on August 15, 2013 for different reasons. Ms.
    Desarmia went to help Brenda work on a Halloween display that Brenda was
    planning for her house, and Ms. Gordon went to get tomatoes for hamburgers she
    was planning to cook that evening for a family celebration.

[16]

According
    to Ms. Desarmia, she saw Bruce at the farm, who expressed frustration about not
    being able to get his will done. Ms. Desarmia explained that he did not need to
    go to his lawyers office to get his will done, and she offered to assist by
    witnessing his signature on the will. Ms. Gordon testified that Bruce asked her
    if she would do him the favour of witnessing his will. Both witnesses testified
    that they witnessed Bruce sign the will and then each signed the will in the
    kitchen.

[17]

There
    were a number of discrepancies in the precise details of the two witnesses
    signature, for example, who was standing and who was sitting, whether they all
    used the same pen, and the order of signatures. The trial judge found those all
    to have been in keeping with the frailty of human memory (at para. 80) and in
    keeping with the nature of the event (at para. 84) and accepted their
    evidence.

(c)

The visit to the lawyers office the day after Bruces death

[18]

Brenda
    testified that the day after Bruce died, she took Version 1, which had Bruces
    signature in ink, to Mr. Colberts office where she spoke to his assistant, Ms.
    Fraser. Brenda stated that she was taken aback to discover that the office did
    not have the fully executed version of the will. The trial judge found that Ms.
    Fraser made a photocopy of Version 1 and returned the original Version 1 to
    Brenda.

[19]

Ms.
    Fraser testified at the trial. Although she testified that Brenda said, in
    response to Ms. Frasers explanation that because the will was not witnessed,
    it was not valid, I saw him sign it, Brenda denied having made that comment
    and the trial judge accepted Brendas evidence on the point. She also accepted
    that Brenda was taken aback that there was no original fully executed version
    of the will in light of the fact that the version Brenda had was stamped
    DRAFT.

(d)

Finding Version 2

[20]

Brian
    called Mr. Leonard Stavenow, the proprietor of an equipment rental store in the
    area. Brenda had gone into the store about two weeks after Bruces death, and
    spoke to Mr. Stavenow about having lost her best friend. He testified that Brenda
    confided in him about the status of the will, and that she had said both it
    was not signed and that the rough copy shows intent.

[21]

At
    trial, Brenda stated that she did not recall telling Mr. Stavenow that the will
    was not signed. The trial judge noted that Brenda was taken to a transcript
    from her examination for discovery, where she had first said that she told Mr.
    Stavenow that the will was not signed and then had changed or corrected her
    answer to say that she told Mr. Stavenow that the will was not witnessed. The
    trial judge found no contradiction between Brendas evidence at trial and her
    evidence on examination for discovery on this point. The trial judge also found
    that although Mr. Stavenow presented as a straightforward person and was a
    credible witness, the conversation had lasted only three to five minutes and
    concluded that he had misunderstood what Brenda said to him. She concluded that
    he was not reliable as to what Brenda had said about Version 1.

[22]

Brenda
    testified that about three or more weeks after Bruces death, she had a chance
    meeting with her friend Ms. Desarmia and told her that she could only find
    Version 1. This meeting occurred after Brenda attended at Mr. Stavenows store.
    Ms. Desarmia, in response, informed her that she had in fact witnessed Bruces
    signing of the 2013 will. Brenda immediately returned to the farm and searched
    for an executed and witnessed will, which she ultimately found in an envelope
    on top of a cupboard in the kitchen (Version 2). Brenda testified that although
    she was not in the kitchen at the time that the will was executed on August 15,
    2013, she was outside around the machine shed about 100 feet away. This raises
    the question as to why she would not have known at the time that Bruce had
    asked them to witness the will, particularly given Ms. Desarmias evidence that
    she remained at the farm for a few hours after that to assist Brenda with the
    Halloween display.

[23]

The
    trial judge accepted Brendas evidence on all points where it contradicted with
    that of other witnesses. She also accepted her evidence about the circumstances
    and place of her discovery of Version 2 of the will.

(e)

Ms. Lewis expert evidence

[24]

Against
    this backdrop, the evidence of the handwriting expert was important. Ms. Lewis was
    qualified to give expert evidence on the following 2 issues:

(i)

Whether
    Version 1 and Version 2 were forgeries, based on a comparison with other
    documents that contain signatures that were known to be Bruces; and

(ii)

Whether Bruces signature that appears in Version 1 and Version 2 are
    the same  with one signature being a copy of the other.

[25]

As
    explained above, because no originals were available at trial, Ms. Lewis had
    only the two photocopies to compare. With respect to the first question, Ms.
    Lewis testified that she was unable to draw a conclusion as to whether Bruce
    was the person who signed the two versions. With respect to the second
    question, however, she testified that those two questioned documents  had
    copies of the same signature. She explained that she had prepared a transparency
    chart of the two signatures from the two versions of the will and that she had
    positioned one signature on top of the other to make it easy to look at them
    and see that the design is the same, the spacing is the same, the details are
    accurate.

[26]

She
    explained that this was important because in forensic document examination, one
    of the rules is that no one writes exactly the same way twice because
    handwriting doesnt really allow us to precisely reproduce a signature in every
    detail just because the active writing always includes a little bit of natural
    variation in the writing. She used the transparency overlay in this case
    because she wanted to show the two questioned signatures together because they
    are the same signature, in my opinion. Using the transparency was useful
    because one could see that each signature fit accurately over the other. She
    concluded that [t]he two signatures were copied from one signature. I should
    say they are one signature.

(3)

The law

[27]

Questions
    of fact are reviewable on a standard of palpable and overriding error, while
    questions of law are reviewable on a standard of correctness:
Housen v.
    Nikolaisen
, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 8-10.

[28]

A
    misapprehension of evidence may refer to a failure to consider evidence
    relevant to a material issue, a mistake as to the substance of the evidence, or
    a failure to give proper effect to the evidence:
R. v. Morrissey
(1995), 97 C.C.C. (3d) 193 (Ont. C.A.), at p. 218. Doherty J.A. noted, at p.
    218, that most errors that constitute a misapprehension of evidence will not be
    regarded as involving a question of law. However, appellate intervention is
    warranted where the misapprehension of evidence is palpable and overriding,
    such that it is plain to see or obvious and goes to the very core of the
    outcome of the case: see
Waxman v. Waxman
, 2004 CanLII 39040 (Ont. C.A.), at
    paras. 296-97, leave to appeal refused, [2004] S.C.C.A. No. 291;
Carmichael
    v. GlaxoSmithKline Inc.
, 2020 ONCA 447, 151 O.R. (3d) 609, at para. 125,
    leave to appeal refused, [2020] S.C.C.A. No. 409.

[29]

The
    onus of proving the formal validity of a will lies on the propounder of the
    will, in this case, the respondent Brenda: see
Vout v. Hay
, [1995] 2 S.C.R.
    876, at p. 887.

[30]

The
    requirements for the formal validity of a will are set out at s. 4(1) of the
    SLRA, as it was at the relevant time:

(a) at its end [the will] is signed by the testator
    or by some other person in his or her presence and by his or her direction;

(b) the testator makes or acknowledges the signature
    in the presence of two or more attesting witnesses present at the same time;
    and

(c) two or more of the
    attesting witnesses subscribe the will in the presence of the testator.

[31]

The
    purpose of the statutory requirement of two or more witnesses is to prevent
    fraud by ensuring that there is probative evidence to support a conclusion that
    the testator wanted to give effect to the contents of their will by signing it
    in the presence of others. The testators intent is thus irrelevant to the
    formal validity of a will.

(4)

Analysis

[32]

A
    review of the evidence of the handwriting expert, Ms. Lewis, along with the
    positions of the parties at trial as well as the other evidence and the trial
    judges reasons, indicates that the trial judges main error was misapprehending
    the import of the experts evidence. This bore on the central issue of the
    case, which was whether Bruce signed the will in 2013 before two attesting
    witnesses who were present at the time and who signed as witnesses before him.

[33]

First,
    the trial judge understated the content of Ms. Lewis opinion. Ms. Lewis did
    not say merely that it was completely likely that Bruces signature on
    Version 1 and Version 2 were copies of the same signature. She said, and
    demonstrated with the overlay of the two signatures, that they were copied from
    one signature. While Ms. Lewis stated that it is always preferable to have
    originals, these were above average copies and she was very satisfied that
    they were accurate.

[34]

The
    most serious problem with the trial judges reasons with respect to the experts
    evidence, however, is that it is not at all clear that she appreciated its
    significance. The experts evidence was that Bruces signatures were the same
    signature or copies of each other and that no one signs the exact same way
    twice. In essence, this meant that Bruce could not have signed both Version 1
    and Version 2 separately with original signatures. While the expert did
    acknowledge in cross-examination that tracing could explain this, she also
    stated that she did not include this possibility in her report because the
    evidence I observed didnt lead me to believe it was a possibility.

[35]

It
    was established in Brendas and Ms. Frasers evidence that the document Brenda
    brought to Mr. Colberts office, Version 1, had an ink signature. It was
    similarly accepted by the trial judge that Brenda had brought the original Version
    1 will to Mr. Colberts office. One of the possible implications then, of the
    experts evidence, was that Bruces signature on Version 2 was a reproduced copy
    of Version 1. The original Version 1, which was unwitnessed when Brenda found
    it after Bruces death, could also have been converted into Version 2 by having
    witnesses sign it directly.

[36]

There
    is nothing in the trial judges reasons to indicate that she understood that if
    the signature on Version 2 was a copy from or the same as the signature on the
    unwitnessed Version 1, and not simply another original signature that Bruce had
    signed on a separate occasion in the presence of the two witnesses, there would
    be significant reason to doubt the validity of the Version 2 will. Put simply, it
    is not clear that the trial judge understood that the experts evidence supported
    an inference that the two witnesses signed Version 1 after Bruces death. She
    specifically observed that it was in any event, difficult to understand how
    Ms. Lewis evidence is helpful to Brian. Her statement that Brians description
    of Ms. Lewis evidence as clear and equivocal was an overstatement is inaccurate.
    The bottom line of Ms. Lewis evidence was, as I have set out, very clear.
    Apart from this comment, the trial judge did not indicate whether or not she
    was accepting any, all or none of Ms. Lewis evidence.

[37]

The
    trial judges failure to expressly grapple with this evidence was a serious
    error in the circumstances of this case. Had she clearly understood the
    potential implications of Ms. Lewis conclusion that the two signatures were
    copies of the same signature, she would most likely have approached the other
    evidence somewhat differently, including the missing Version 1 with Bruces ink
    signature on it and the inconsistencies in Brendas evidence regarding how she
    discovered Version 2 of the will.

[38]

For
    instance, there is nothing to indicate that the trial judge understood the
    significance of the missing original Version 1 with Bruces signature on it,
    particularly given the fact that, as the trial judge did note, Brenda gave
    inconsistent explanations as to what had happened to it. The trial judge stated
    twice that the existence of the original Version 1 does not affect the validity
    of Version 2. To the contrary, the significance and relevance was the
    possibility that the original Version 1 was the very version that Brenda had
    arranged to have the witnesses sign, or that the signature on Version 1 was
    copied to create Version 2 which was then signed by the two witnesses. The
    experts evidence that the signatures were copies of each other supported these
    theories.

[39]

In
    addition, had the trial judge understood the implications of the experts
    evidence in light of Brians theory of the case, she would likely have
    approached Brendas evidence on how she discovered Version 2 differently. In
    accepting Brendas evidence, the trial judge noted:

The theory of Brians case is that Ms. Bayford colluded,
    conspired, or connived with Ms. Desarmia and Ms. Gordon to create Version 2. I
    find that Ms. Bayfords conduct in the days and weeks following Bruces death
    runs contrary to that theory. Ms. Bayfords conduct enhances the credibility of
    her evidence as to when and how she discovered the existence of Version 2:

·

Why would she, on the day following Bruces death, attend at Mr.
    Colberts office with Version 1 and acknowledge to Ms. Fraser that she did not
    have a fully-executed version of the 2013 Will?

·

Why, approximately 12 days after speaking with Ms. Fraser, would
    Ms. Bayford acknowledge publicly (to Mr. Stavenow in front of others) that the
    2013 Will was unsigned in some way?

[40]

The
    trial judges questions suggest that she
misunderstood Brians
    position and mistakenly considered the expert evidence to be irrelevant
.
    First, the uncontradicted evidence that Brenda took Version 1 to Mr. Colberts
    office the day after Bruces death is entirely consistent with Brians theory
    of the case that, at this point, there was no Version 2. It is also consistent
    with Ms. Frasers evidence that Brenda said I saw him sign it when Ms. Fraser
    informed Brenda that, because it was not witnessed, Version 1 was not a valid
    will. This suggests that Brenda did not realize that the will needed to be
    witnessed by two witnesses to the testators signing of the will. In other
    words, a plausible answer to the first question is that when Brenda took
    Version 1 into Mr. Colberts office, she thought it was valid and was taken
    aback, not upon being told that the office did not have a fully executed copy
    of the will, but upon being told that Version 1 was not valid. The trial judge
    accepted Brendas evidence on the point. Further, rather than ask
why
Brenda brought Version 1 to Mr. Colberts office
    after Bruces death, the experts evidence should have caused the trial judge
    to ask
how
Brenda could attend the office with an
    original of Version 1, with a yet to be discovered original Version 2 existing
    contemporaneously in the farms kitchen and containing an identical signature.

[41]

Second,
    there is an obvious response on the evidence presented at trial to the second
    question posed by the trial judge with respect to Brendas conversation with
    Mr. Stavenow. That response is that when she visited Mr. Stavenows store, Brenda
    had not yet considered the possibility of creating Version 2 out of the signed
    Version 1. This explanation would be consistent with Brians theory of the case
    and the experts evidence that Bruces signatures on both versions were the
    same or copies of each other. It would also be consistent with the events as
    found by the trial judge, which was that Brendas visit to Mr. Stavenows store
    preceded both her chance meeting with Ms. Desarmia and her discovery of Version
    2 several weeks after Bruces death. However, there is no indication that the
    trial judge appreciated this possibility, despite Brians argument regarding Brendas
    collusion to create Version 2 and the expert evidence.

[42]

As
    I outlined earlier, there were a number of inconsistencies in Brendas evidence.
    While a trial judges findings of fact attract significant deference, and the
    bar for misapprehension of evidence is high, it is met in this case. Had she
    been alive to the essence of Brians claim and the significance of Ms. Lewis
    evidence, which she did not reject, the trial judge still might have resolved
    the inconsistencies as she did. But her dismissal of all of the inconsistencies
    in Brendas favour in the absence of a full appreciation of the substance and
    significance of the experts evidence went to the heart of this case and its
    outcome. The misapprehension of the expert evidence was obvious and essential to
    her conclusion that Version 2 was valid and constitutes palpable and overriding
    error.

[43]

The
    trial judge made a number of other, related errors. She stated correctly that
    intent is not relevant to the formal validity of a will, and she correctly
    indicated that the evidence of Bruces intention was inadmissible. However, she
    included Brendas evidence of Bruces intention to change his will in her
    recitation of the facts and noted at the beginning of her analysis, at para.
    32, that Brian is not alleging that the 2013 Will reflects anything other than
    the instructions given by Bruce to Mr. Colbert with respect to the substantive terms
    of the will, which suggests that intent did play a part in her conclusion that
    Version 2 was valid.

[44]

In
    addition, the trial judge erred in stating that it was up to Brian to produce
    the original of Version 1, stating that Ms. Lewis was working with only
    photocopies and that Brian did not call any evidence to explain why Ms. Lewis
    was not given the opportunity to inspect the original documents: at para. 68.
    This comment is problematic for two reasons. First, it was Brenda who, as the
    propounder of the will, had the burden of proving its formal validity. Second,
    it was precisely the fact that she was unable to provide the original of
    Version 1 that gave rise to this issue of validity.

[45]

In
    short, given the experts evidence which the trial judge misinterpreted but did
    not reject, the trial judge erred in finding that Brenda had discharged her
    onus of proving the formal validity of the will. As the signatures were the
    same, the absence of the original Version 1 was a serious problem which was
    not overcome by the other evidence, whose frailties were not addressed or
    arguably even appreciated by the trial judge in light of her misunderstanding
    of the experts opinion.

[46]

For
    these reasons I am satisfied that Brenda did not meet her onus of establishing
    the formal validity of the will.

(5)

The fresh evidence

[47]

Brenda
    seeks to introduce the original Version 2 of the will as fresh evidence on this
    appeal. She submits that the tests for the admission of fresh evidence in
Palmer
    v. The Queen
, [1980] 1 S.C.R. 759, at p. 775 and
Sengmueller v.
    Sengmueller
(1994), 111 D.L.R. (4th) 19 (Ont. C.A.), at p. 23, are met
    because the original Version 2 was not available at trial and could not be
    adduced with the exercise of due diligence, and it is necessary to deal fairly
    with the heart of the issue on appeal, which is the authenticity of Version 2
    of the will.

[48]

I
    disagree. The evidence does not meet the test for the admission of fresh
    evidence. The existence of the original Version 2 of the will is not likely to
    be conclusive of whether Version 2 of the will is valid. This is because it
    does not explain what happened to the original Version 1. Given Brians
    position that Version 2 was created by using the original Version 1, which did
    have Bruces original signature on it, and by having the two witnesses sign it,
    and the experts evidence that Bruces signatures in both versions are the same,
    the continuing absence of the original Version 1 (which Brenda claims exists
    somewhere) continues as a problem for Brenda. The validity of the original
    Version 2 of the will remains in question. This evidence is not necessary to
    deal fairly with the issues on appeal and declining to admit it would not
    result in a substantial injustice.

(6)

Disposition and costs

[49]

The
    appeal is allowed, the judgment below is set aside and the action is dismissed.
    The will dated August 15, 2013 is invalid. If the parties are unable to come to
    an agreement on costs, they may make written submissions not exceeding 5 pages,
    the appellant Brian within 10 days of the release of this decision and the
    respondent Brenda within 7 days after that.

Released: June 22, 2021 D.D.

A. Harvison Young
    J.A.

I agree Doherty J.A.

I agree I.V.B.
    Nordheimer J.A.


