



COURT OF APPEAL FOR ONTARIO

CITATION: Sweetnam v. Williamson Estate, 2017 ONCA 991

DATE: 20171215

DOCKET: C62444

Hourigan, Brown JJ.A. and Himel J.
(ad hoc)

BETWEEN

Star Sweetnam

Plaintiff (Respondent)

and

Dianne Lesage
and Terry Dooley in their
    capacities as estate trustee of the Estate of Martin Arthur Williamson

Defendants (
Appellant
/Respondent)

Earl Cherniak, Ian Hull and Doreen So, for the
    appellant, Dianne Lesage

Sean Graham, for the respondent/cross-appellant, Terry
    Dooley

Brendan Donovan and Gregory Sidlofsky, for the
    respondent, Star Sweetnam

Heard and released orally: December 12, 2017

On appeal from the judgment of Justice Douglas K. Gray of
    the Superior Court of Justice, dated June 20, 2016.

REASONS FOR DECISION

[1]

One of two estate trustees appeals the decision of the trial judge which
    found that the testator lacked testamentary capacity at the time he made a will
    on August 16, 2010 and a will on September 8, 2010 but dismissed other claims
    made.

[2]

Both estate trustees seek leave to appeal the costs award which was that
    the estate trustees should pay costs to the respondent to be borne by the
    estate trustees and not out of the estate.

[3]

The case concerns a successful businessman who was married for 30 years
    and had one child who is now 45 years old. The testator separated seven years
    prior to his death but never divorced. He resided with his common law partner
    during those seven years. He owned two profitable companies that manufactured
    packaging materials and sold packaging materials as well as real estate assets.

[4]

Following a seizure on July 20, 2010, he was diagnosed with brain
    cancer. He made two wills: one on August 16, 2010, leaving the majority of his
    estate to his common law partner and excluded his only child. In a second will,
    made on September 8, 2010, he repeated the exclusion of his daughter and left
    legacies to his common law partner, a friend from Québec, his former business
    associate, the two estate trustees and the residue of his estate to a number of
    friends, including a share of the residue to the spouse of one of the trustees.

[5]

The testator attempted to change his will two further times but no new
    wills were signed before his death, on December 24, 2010.

[6]

The trial judge heard evidence from a number of witnesses including the
    daughter, the estate trustees, former colleagues and friends, the former wife,
    the lawyers who prepared the wills, the lawyer who prepared a separation
    agreement between the testator and his wife, various treating doctors and
    experts called by each side. In his lengthy and detailed reasons, he outlined
    the evidence and why he preferred the evidence of the respondents witnesses
    regarding the testators behaviour following his diagnosis and the expert psychiatrist
    regarding the testamentary capacity of the testator.

[7]

He applied the test for testamentary capacity as outlined in the leading
    jurisprudence. He concluded that the testator was not aware of the nature and
    extent of his assets at the time he made the wills, did not remember the person
    he might be expected to benefit under his will and did not understand the
    nature of the claims that may be made by persons he was excluding. He found
    that the dispositions were affected by delusions and articulated what those
    delusions were in his reasons.

[8]

We see no palpable errors of fact. The inferences drawn by the trial
    judge were reasonably supported by the evidence. We see no errors in the
    analysis or the application of the law by the court below.

[9]

The appeal is dismissed.

[10]

On the issue of the costs award, costs of a proceeding are in the
    discretion of the court and the court may determine by whom and to what extent
    the costs shall be paid. While in estates matters costs awards are often borne
    by the estate,  a court may order otherwise if an estate trustee has acted
    unreasonably or in substance for his or her own benefit, rather than for the
    benefit of the estate: See
Brown v. Rigsby
, 2016 ONCA 521, at para.
    11.

[11]

In the case at bar, the trial judge found that the estate trustees were
    adversarial and unreasonable in refusing to consider offers of settlement that
    were less than the result obtained and that they took unreasonable positions
    such as the hiring of a private investigator and claiming costs double those
    claimed by the respondent following trial.  Both estate trustees were
    responsible in carrying the litigation forward. There is no reason to interfere
    with the exercise of discretion of the trial judge.

[12]

The motion for leave to appeal the award to costs is dismissed.

C.W. Hourigan J.A.
David Brown J.A.
Himel J.


