



COURT OF APPEAL FOR ONTARIO

CITATION: Stekar v. Wilcox, 2017 ONCA 1010

DATE: 20171221

DOCKET: C62854

Simmons, Cronk and Paciocco JJ.A.

BETWEEN

Louis Stekar

Applicant/Appellant

and

Thomas Wilcox

Respondent/

Respondent by Appeal

Mark A. Klaiman, for the appellant

Paul E. Trudelle, for the respondent

Heard: December 11, 2017

On appeal from the judgment of Justice Sidney N. Lederman
    of the Superior Court of Justice, dated September 27, 2016, with reasons
    reported at 2016 ONSC 5835.

By the Court:

Introduction

[1]

Following the trial of an issue over the course of a six-day hearing,
    the trial judge granted a declaration that the Will of Jerrald McNamara (the
    Deceased), dated May 21, 2012 (the 2012 Will), not be admitted to probate,
    dismissed the appellants probate application, and awarded costs in favour of
    the respondent in the total amount of $100,000, payable by the appellant and
    Frank Stekar and Guilio DAmbrosi, jointly and severally.

Issues

[2]

The appellant appeals from the denial of probate for the 2012 Will.  He
    argues that the trial judge erred: i) in determining that there were suspicious
    circumstances surrounding the preparation and execution of the 2012 Will; ii)
    in applying the test for testamentary capacity; iii) in holding that the
    Deceased lacked testamentary capacity at the time of the execution of the 2012
    Will; and iv) in holding that the Deceased had no knowledge of and failed to
    approve the contents of the 2012 Will.

[3]

For the reasons that follow, we conclude that the appeal must be
    dismissed.

Discussion

(1)

Suspicious Circumstances

[4]

We turn first to the trial judges finding that there were suspicious
    circumstances surrounding the changing of the Deceaseds earlier, January 15,
    1999 Will (the 1999 Will), and the making of the 2012 Will.

[5]

At the appeal hearing, the appellant conceded that although some of the
    circumstances cited by the trial judge may not have been suspicious, others
    were.  As a result, the appellant did not press his challenge to the trial
    judges finding of suspicious circumstances.

[6]

This was a prudent concession.  The trial judge recognized, correctly,
    that suspicious circumstances regarding the making of a will may arise in
    various ways, including in connection with the preparation of the will or by
    reason of circumstances tending to call into question the capacity of the
    testator.  He found that there were numerous suspicious circumstances
    surrounding the making of the 2012 Will.  These included, but were not limited
    to, the following:

·

the 2012 Will was prepared at a time when the Deceased was of
    questionable capacity due both to his historical and recent health issues and hospitalization,
    and his clinical condition and behaviour at a time proximate to the making of
    the 2012 Will;

·

the 2012 Will provided for a radical change from the
    beneficiaries named in the 1999 Will.  It also stipulated that a woman who had
    served as the Deceaseds caregiver for less than one month prior to the date of
    the 2012 Will was to receive 10% of his Estate;

·

the 2012 Will was typed, but the Deceased did not own a computer
    or a typewriter and had no means to create a typewritten document; and

·

in various conversations in the days prior to the making of the
    2012 Will, the Deceased had made multiple, contradictory statements regarding
    the identity of his intended beneficiaries.

[7]

These circumstances, which are firmly anchored in the evidentiary
    record, strongly support the trial judges finding of suspicious circumstances
    surrounding the 2012 Will.  In our view, on this record, this key finding is
    unassailable.

(2)

Testamentary Capacity

[8]

The trial judge held, correctly, that the appellant 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 appellant, 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
, [1995] 2 S.C.R. 876.

[9]

The appellant submits that, notwithstanding his admitted burden to
    establish the Deceaseds testamentary capacity, the trial judge erred in his
    application of the test for testamentary capacity by disregarding key evidence
    about the Deceaseds mental state. The appellant contends, for instance, that
    the Deceaseds hospitalization and delusional symptoms in the 60 days prior to
    the execution of the 2012 Will were related to his drug use and/or personality
    disorder for which the Deceased was subsequently medicated, and not his mental
    health.

[10]

This
    submission is untenable.  There was evidence at trial that in the two months
    prior to the making of the 2012 Will, the Deceased was involuntarily
    hospitalized for a lengthy period (about six or seven weeks) during which he
    suffered from hallucinations, delusions and confusion and was confined to a
    psychiatric ward.  On his discharge from hospital on April 20, 2012 he
    continued to suffer from what medical personnel described as shakable
    delusions.  In other words, the Deceaseds delusional state, while not
    intractable, persisted following his discharge from hospital.  Further, on June
    1, 2012, just 10 days after the execution of the 2012 Will, the appellant was
    readmitted to hospital while exhibiting confusion and reduced alertness.  He
    died in hospital on June 18, 2012.

[11]

On
    this evidence, which was fully canvassed by the trial judge, there can be no
    sustainable suggestion that the Deceaseds testamentary capacity was free from
    doubt at the time of the execution of the 2012 Will.  Nor, in our view, can his
    clinical symptoms, described above, realistically be divorced from his mental
    health.  There was no expert medical evidence at trial suggesting that the
    Deceaseds delusions, which continued after his discharge from the hospital,
    were attributable solely to his drug use and did not implicate his mental
    health.  In our view, the trial judge was entitled to conclude that his medical
    condition, including his delusional state and any personality disorder from
    which he may have suffered, clearly bore on his mental health and, hence, on the
    question of his testamentary capacity.

[12]

The
    trial judges reasons confirm that he came to grips with the evidence about the
    Deceaseds mental state and relied on it in finding, at para. 69 of his
    reasons, that The Deceased
may
have been suffering from delusions at
    the time of the execution of the [2012] Will that
could have
affected
    his testamentary dispositions (emphasis added).

[13]

Thus,
    contrary to the appellants submission, the trial judge did not hold that the
    Deceased lacked the requisite testamentary capacity when the 2012 Will was
    executed.  Rather, he held that the appellant had failed to discharge his
    burden to prove that the Deceased possessed the necessary testamentary capacity
    at the relevant time.

[14]

The
    test for testamentary capacity has been well-established since the Supreme
    Court of Canada, in
Skinner v. Farquharson
(1902), 32 S.C.R. 58,
    adopted the formulation of the test offered in
Banks v. Goodfellow
(1870), L.R. 5 Q.B. 549, at p. 565:

It is essential to the exercise of such a power [of
    testamentary capacity] that a testator shall understand the nature of the act
    and its effects; shall understand the extent of the property of which he is
    disposing; shall be able to comprehend and appreciate the claims to which he
    ought to give effect;
and, with a view to the latter object, that no
    disorder of the mind shall poison his affections, pervert his sense of right,
    or prevent the exercise of his natural faculties  that no insane delusion
    shall influence his will in disposing of his property and bring about a
    disposal of it which, if the mind had been sound, would not have been made
. 
    [Emphasis added.]

[15]

The
    trial judges reasons confirm that he was alert to the test for testamentary
    capacity and that he properly applied it to the facts of this case.  The
    evidence of the Deceaseds medical condition, recent hospitalization and
    clinical symptoms  both during and after his hospitalization  at a time
    proximate to the execution of the 2012 Will supported the trial judges finding
    that the Deceaseds testamentary capacity had not been established.

[16]

We
    note, also, that there was no expert medical evidence at trial establishing the
    Deceaseds testamentary capacity.  Further, while various lay witnesses
    testified about their observations of the Deceased prior to and at the time of
    the execution of the 2012 Will, there was no evidence of anyone probing the
    Deceaseds testamentary capacity prior to or at the time of the execution of
    the 2012 Will.  Nor was there any evidence that anyone inquired into or
    explored with the Deceased his statements in a May 21, 2012 letter associated
    with the 2012 Will to confirm they were not the product of delusional or cognitive
    impairments.  This was significant because there was evidence at trial
    indicating that some of the Deceaseds beliefs about the respondent, recited in
    the letter, were inaccurate.

[17]

As
    the trial judge noted, at para. 71, the mere capacity to communicate
    testamentary wishes is not determinative of testamentary capacity.  Rather,
    the testators wishes must be shown to be the product of a sound and disposing
    mind:
Hall v. Bennett Estate
(2003), 64 O.R. (3d) 191 (C.A.), at
    para. 15.  The test to prove testamentary capacity is therefore a high one,
    which, in the face of suspicious circumstances, falls on the propounder of the
    will to satisfy.

[18]

We
    therefore agree with the trial judge that, in the circumstances here, the
    appellant failed to meet his burden to establish the Deceaseds testamentary
    capacity.  On this ground alone, the trial judges decision to deny the
    admission of the 2012 Will to probate was justified.

[19]

This
    ground of appeal therefore fails.

(3)

Knowledge and Approval of the 2012 Will

[20]

We
    reach a similar conclusion regarding the trial judges holding that the
    appellant also failed to satisfy his burden to establish the Deceased had
    knowledge of and approved the contents of the 2012 Will.

[21]

Once
    again, contrary to the appellants contention, the trial judge did not find, as
    a fact, that the Deceased lacked knowledge of and failed to approve the
    contents of the 2012 Will.  Rather, he held that the appellant fell short of
    meeting his clear burden to establish such knowledge and approval.

[22]

We
    agree.  Indeed, in our opinion, this conclusion was inescapable on the record
    at trial.  Specifically, it was supported by: i) the fact that the testamentary
    dispositions under the 2012 Will were completely at odds with the Deceaseds
    testamentary intentions as communicated to his treating physician and various
    friends in the 60 days prior to the execution of the 2012 Will, as well as with
    the provisions of the 1999 Will; ii) the fact that the 1999 Will was
    handwritten by the Deceased himself, whereas he could not have prepared the
    typed 2012 Will; iii) the absence of any evidence at trial regarding the
    instructions for or the preparation of the 2012 Will; and iv) the absence of
    any evidence from Joy Vassal, who was present when the 2012 Will was executed
    and stamped and signed it.

[23]

The
    trial judge held that these suspicious circumstances had a serious impact on
    the critical question whether the appellant had met his burden of proof to
    establish the Deceaseds knowledge and approval of the 2012 Will.

[24]

Again,
    we agree.  As indicated by the Supreme Court of Canada in
MacGregor v.
    Martin Estate
, [1965] S.C.R. 757, at p. 766: The extent of the proof
    required is proportionate to the gravity of the suspicion and the degree of
    suspicion varies with the circumstances of each case.

[25]

In
    this case, the cumulative circumstances surrounding the making of the 2012 Will
    cried out for an explanation and for evidence that the Deceased, in fact, had knowledge
    of and approved the contents of the 2012 Will.  We see no error in the trial
    judges conclusion that the appellant failed to meet his burden of proof on
    this important issue.

(4)

Fresh Evidence

[26]

Nor
    does the fresh evidence that the appellant seeks to tender on appeal alter the
    conclusions set out above.  The proposed fresh evidence relates to Joy Vassals
    involvement with the Deceased on the day of the execution of the 2012 Will, and
    the involvement in the preparation of the 2012 Will of one Elmo Fisher, a
    friend of the Deceased, whose existence and identity appear to have only
    recently become known to the appellant.

[27]

Simply
    put, the proposed fresh evidence does not meet the test for the admission of
    fresh evidence on appeal in a civil case.  That test contemplates, among other
    matters, that the proffered fresh evidence will be admitted if, by the exercise
    of reasonable diligence, it could not have been obtained prior to trial:
Sengmueller
    v. Sengmueller
(1994), 17 O.R. (3d) 208 (C.A.), at para. 9.  This due
    diligence requirement reflects finality concerns, especially important in
    civil proceedings, which demand a restrictive approach to the admissibility
    of evidence on appeal:
Iroquois Falls Power Corp. v. Ontario Electricity
    Financial Corp.
, 2016 ONCA 271, at para. 49, leave to appeal refused,
    [2016] S.C.C.A. No. 279.

[28]

The
    due diligence requirement is not met here.  The proposed fresh evidence was
    obtained as a result of the appellants post-trial contact with Joy Vassal. 
    This contact led the appellant and his associates to identify, locate and
    interview Elmo Fisher, who now appears to have been the person involved with
    the Deceased in the preparation of the typed 2012 Will.

[29]

The
    difficulty, however, is that only cursory efforts were made by the appellant to
    contact Joy Vassal before or during the trial, notwithstanding her known
    attendance at the Deceaseds home on the day the 2012 Will was executed and the
    critical fact that the 2012 Will bears her stamp, signature, telephone number,
    email, website and place of worship contact information.

[30]

We
    agree with the respondent that, with reasonable due diligence, Joy Vassal could
    have been contacted before or during the trial  or even shortly after its
    conclusion, rather than many months after the release of the trial judgment. 
    Her suspected involvement in the preparation of the 2012 Will could then have
    been ascertained and the trail leading to Elmo Fisher revealed.  If there was
    any doubt about this, it is laid to rest by the fact that, many months after
    the trial judgment, the appellant was able to contact Joy Vassal and speak to
    her by telephone at the same telephone number set out on the face of the 2012
    Will.

[31]

Nothing
    in the appellants materials on his fresh evidence motion suggests that the
    information now available concerning Joy Vassals and Elmo Fishers involvement
    could not have been obtained prior to or during the trial.  To the contrary,
    the motion materials confirm that it was only after the release of the trial
    judgment that the appellant renewed his efforts to contact Joy Vassal.  It is
    not open to the appellant, at this late date, to attempt to shore up the case
    he led at trial by now introducing evidence that readily could have been
    obtained at a much earlier date upon the exercise of reasonable diligence.

[32]

In
    addition, and importantly, the proposed fresh evidence considered as a whole
    does not have sufficient weight to justify its admission in the interests of
    justice given the lack of due diligence.  It furnishes no proof of any probing
    of the Deceaseds testamentary capacity given his recent history of
    hospitalization and delusional and confused behaviour, nor any questioning of
    the basis for his beliefs that led to the inclusion of some friends as
    beneficiaries and the exclusion of the respondent  his original, sole
    beneficiary  from the 2012 Will.  The appellant, therefore, has failed to
    persuade us that the proposed fresh evidence, if available at trial, would likely
    have been conclusive of the result: see
Sengmueller
, at para. 9.

[33]

The
    test for the admission of fresh evidence on appeal not having been met, leave
    to admit the proposed fresh evidence is denied.

Disposition

[34]

For
    the reasons given, the motion for leave to admit fresh evidence on appeal and
    the appeal are both dismissed.  The respondent is entitled to his costs of the
    leave motion and the appeal, fixed in the total amount of $15,000, inclusive of
    disbursements and all applicable taxes.

Released:

DP                                         E.A. Cronk
    J.A.

DEC 21 2017                          Janet Simmons J.A.

David M.
    Paciocco J.A.


