



COURT OF APPEAL FOR ONTARIO

CITATION: Quaggiotto v. Quaggiotto, 2019 ONCA 107

DATE: 20190213

DOCKET: C64965

Pepall,
    Trotter and Harvison Young JJ.A.

BETWEEN

Livio Quaggiotto

Plaintiff

(Respondent)

and

Franco Quaggiotto

Defendant

(Appellant)

Josephine Stark and Tom Serafimovski, for the appellant

Anita Landry and Raymond Colautti, for the respondent

Heard and released orally: February 5, 2019

On appeal from the judgment of Justice Steven Rogin of
    the Superior Court of Justice, dated January 12, 2018.

REASONS FOR DECISION

[1]

This appeal involves an
    unfortunate dispute between two brothers over a codicil executed on August 18,
    2014 by their 87 year old mother, Maria Quaggiotto who died on March 27, 2016. 
    The codicil left the residue of her estate to the respondent son Livio. Her
    previous will had divided the residue equally between the respondent and the
    appellant son Franco.

[2]

There was extensive
    evidence in the record that suggested that Mrs. Quaggiottos disposition was
    not motivated by a lack of love for the appellant but by a belief that he was
    in a better overall financial position than the respondent and that the codicil
    would even up the discrepancy between the two brothers.

[3]

Following a 10-day
    trial, the trial judge found in favour of the respondent and upheld the
    validity of the codicil.  The trial judge wrote detailed reasons.  He found
    that the respondent had satisfied his burden of proving due execution of the
    codicil and knowledge of its contents. There were suspicious circumstances but
    the respondent had met his burden of proving testamentary capacity and the respondent
    had successfully rebutted any inference of coercion or undue influence.

[4]

The appellant appeals
    from that decision.  Most of the issues he raises involve factual findings made
    by the trial judge or questions of mixed fact and law to which a standard of
    palpable and overriding error applies.

[5]

We reject the
    appellants submission that the trial judge misapprehended the evidence and
    erred in finding that Mrs. Quaggiotto had knowledge of the contents of her will
    when she executed the codicil.  In particular, he submits that to have
    testamentary capacity, a testator must be aware of the value or magnitude of
    her estate.  He argues that the trial judge found that Mrs. Quaggiotto had a
    general knowledge of her assets, however, this was inadequate to meet the knowledge
    requirement and in any event, there was no evidence that Mrs. Quaggiotto knew
    or was told about the value of her assets.

[6]

We would not give
    effect to this submission.  The factual finding that Mrs. Quaggiotto had
    knowledge of her assets was supported by the evidence.  In support of his
    conclusion, the trial judge relied on the testators knowledge of her holdings
    in the family corporations Blueview and Caboto Construction; the details of
    Mrs. Quaggiottos assets found in the handwritten notes of her solicitors
    assistant, Ms. Kerim. There was also the evidence of Ms. Bartol, a designated
    capacity assessor and practicing geriatric nurse consultant, whose June 6, 2014
    report stated that she was satisfied that Mrs. Quaggiotto knew what her assets
    and her net worth were. Mrs. Quaggiotto knew she was changing the October 27,
    2011 will drawn by her former solicitor, Mr. Corrent.

[7]

Moreover, Mr. Corrent,
    who had met with her on many occasions since September, 2011 including in 2015
    after she had executed her codicil, and who was not sympathetic towards her,
    felt strongly that she was knowledgeable with respect to her assets.  Moreover
    Mr. Maggio and Ms. Kerim reviewed the codicil line by line with Ms. Qauggiotto
    and witnessed her signature. The Codicil described her assets in detail.  Lastly,
    the law does not require that a testator have an encyclopedic knowledge of her
    assets. As stated by Justice Laskin in
Orfus Estate et al. v. Samuel
    and Bessie Orfus Family Foundation
et al., 2013 ONCA 225 at para. 60:

A competent testator does not have to know the precise makeup
    of her estate. She only need know in a general way the nature and extent of her
    property.

[8]

Similarly, we would not
    give effect to the appellants submissions that there was insufficient evidence
    to dispel the suspicious circumstances or that the trial judge imposed too high
    a burden in defining undue influence and in not finding that the respondent and
    his wife, Rosa, had pressured Mrs. Quaggiotto to change her codicil.  Or, that
    he failed to set out the evidence he relied upon.

[9]

Amongst other things,
    Rosa was not present during Mrs. Quaggiottos appointment with Mr. Maggio, Ms.
    Kerim was. Both she and Mr. Maggio gave testimony on Mrs. Quaggiottos
    capacity, instructions, and understanding.  Mrs. Quaggiottos 20-year family
    physician, Dr. Soong, felt she was able to make her own decisions and confirmed
    that she wished to change her will.  He also confirmed much of the evidence
    given by Rosa.  There was no evidence of domination of Mrs. Quaggiottos will
    by that of another:
Scott v. Cousins
[2001] O.J. No. 19, para. 114 or pressure on her such
    that she had no realistic alternative but to submit to it:
Abdollahpour
    v. Banifatemi
, 2015 ONCA 834
    citing
Berdette v. Berdette
(1991), 81 D.L.R. (4
TH
) 194 (O.C.A.).  The negation of any
    inference of coercion or undue influence was also supported by the evidence
    given by Ms. Bartol.  There was sufficient evidence to support the trial
    judges conclusions, he described the evidence relied upon, and there were no
    palpable and overriding errors that infected his conclusions. To the extent
    that the appellant has identified any factual errors, we do not view them as
    overriding.

[10]

Nor did the trial judge
    err in his findings relating to Mr. Maggio. Mr. Maggio wanted an assessment as
    a condition of his retainer. This was his practice with elderly clients and he
    also wanted one due to Mrs. Quaggiottos strong feelings about her new will. In
    preparing the codicil he relied on both Mrs. Quaggiottos verbal instructions
    and her handwritten letter.  Most significantly, the evidence taken as a whole,
    established that Mrs. Quaggiotto had testamentary capacity.

[11]

Lastly, the appellant
    submits that the trial judge improperly relied on the evidence of the
    respondent and Rosa without the requisite corroboration required by s. 13 of
    the
Evidence Act
.

[12]

We disagree.  The trial
    judge was alive to the requirements of s.13.  Furthermore, Mrs. Quaggiottos
    love of both sons and the terms of the general power of attorney for the CIBC
    did not detract from her desire to balance her two sons financial well-being. 
    Her intent in this regard was corroborated by the evidence of Mr. Maggio and
    his assistant, Ms. Kerim, is reflected in the codicil she executed, and did not
    simply emanate from the respondent and Rosa.

[13]

For these reasons, the
    appeal is dismissed with costs of $20,000, inclusive of HST and disbursements
    to be paid by the appellant to the respondent.

S.E. Pepall J.A.

G.T. Trotter J.A.

Harvison Young J.A.


