Kay v. Kay Sr., 2019 CarswellOnt 9538, 2019 ONSC 3166

Facts of the case:

The Respondent, who was the deceased’s son’s spouse filed a Notice of Objection for a Certificate of Appointment of Estate Trustee, on the grounds that the deceased’s November 2, 2010 will should be declared invalid due to the deceased’s lack of testamentary capacity.

• Wotton passed away on August 26, 2016, at the age of 95. She had one child (John Edward Kay) with her husband Jack Kay who had predeceased her.
• John Edward Kay had three children: Rhonda, Cindy and John Jr. from his previous marriage.
• Wotton executed a last will and testament on April 16, 1992 (“1992 Will”), when she was 71 years of age. The 1992 Will directed Mrs. Wotton’s husband, Jack, and her son to be appointed jointly as the executors. John had advanced dementia and was incapable of performing basic tasks for himself. His wife, Rosemary was his attorney for property and personal care.
• In November 2009, September 2010, and October 2010, medical assessments provisionally found that Mrs. Wotton had a mild to moderate Alzheimer’s type dementia,,that she had difficulty with tasks involving language and memory skills, and her insight into her cognitive deficits was grossly impaired.
• On November 2, 2010, Mrs. Wotton met with a lawyer, Mr. Mark Ouimet-McPherson, in his office. The meeting lasted approximately 1.6 hours. In that time, Mr. Ouimet-McPherson assessed Mrs. Wotton’s capacity, took instructions, drafted the will (“2010 Will”) and powers of attorney and saw to their execution.
• Ouimet-McPherson formed the opinion that Mrs. Wotton had testamentary capacity at the time of the execution of the 2010 Will.
• On April 6, 2019, a posthumous capacity assessment was prepared by Dr. Francine Sarazin, who gave the opinion that “there is reasonable evidence in support of a determination of incapacity when Mrs. Wotton gave instructions to draw up a last will and testament”.

The Court looked at legal principles surrounding the onus of proving capacity[1] and the law governing testamentary capacity[2]. The Court determined that since the medical evidence showed that the deceased possibly suffered a form of mild to moderate Alzheimer dementia, her age at the time of signing the 2010 Will and the changes between the two Wills, the onus was on the propounder of the 2010 Will to show capacity.

The Court also looked at the capacity assessment by Dr. Francine Sarazin. However, the assessment was only given moderate degree of weight, given the fact that a retrospective capacity assessment dating back 9 years is inherently frail in terms of reliability, the assessment was not an exhaustive review of the deceased’s life on or around the time she signed the 2010 Will and the assessor wasn’t provided with all the materials.

The Court further looked at the drafting lawyer’s record and transcripts of the lawyer’s examination for discovery. The lawyer’s notes reflected the deceased’s instructions to the lawyer in respect of her 2010 Will and powers of attorney, he had filled out a checklist based on the deceased’s answers to his questions. The lawyer was satisfied that the deceased had testamentary capacity; her knowledge of her family and assets gave him that belief.

The Court took into account other factors, such as the capacity assessment conducted in October 2010, which stated that the deceased’s memory had started to deteriorate, that she was managing her daily living and finances on her own and that she was paying her own bills.

Conclusion:

The Court declared that on a balance of probabilities, the deceased had testamentary capacity and therefore, the November 2, 2010 Will was valid. In paragraph 29[3], Justice Robert L. Maranger sets out the reasoning behind its conclusion:

1. Understanding the nature of the act of making a will and its consequences: The November 2, 2010, will is Mrs. Wotton appears to have understood what she was doing. Her life story leading up to the creation and contents of the will makes rational sense. Wanting to alter the will so as to provide for two of her grandchildren and her son equally could have been motivated by any number of reasons, including her son’s recent remarriage. Mrs. Wotton’s decision to exclude Rhonda Kay from the will all also makes sense in all the circumstances. While the specific reason for the exclusion is not patent, there is no doubt that the two had a falling out. It is fair to infer that Mrs. Wotton likely had a general idea that Rhonda had made allegations against Mrs. Wotton’s deceased husband, particularly given the content of Rhonda’s affidavit.Mrs. Wotton’s comments to her solicitor about wanting to be fair and avoid disputes, all demonstrate that she more likely than not understood the nature of the act of making a will and its consequences.
2. Understanding the extent of one’s assets: the required knowledge does not necessitate a precise accounting of a dollar value of what the testator owns. In the case at bar, Wotton knew in general terms what she owned. She identified that she owned a cottage/house, which was her principal asset. Mrs. Wotton also thought she might have life insurance, though was uncertain as to whether it had lapsed (likely, the insurance had lapsed since Mrs. Wotton was 89 years old). Mrs. Wotton also knew that she had bank accounts and RRIFs but did not remember what the last statement showed. This has to be considered in light of the fact that she was 89 years old, and the lawyer interviewing her felt that she was responding appropriately to the questions asked.
3. Understanding the claims of those who might expect to benefit from the will, both of those to be included and excluded: Wotton described to the drafting lawyer that she wanted to make a new will that was “more fair” and explained that she didn’t want any fighting. Mrs. Wotton left Rhonda out of her will without telling the lawyer, however, the evidence supports that Rhonda and Mrs. Wotton were estranged.  As such, Mrs. Wotton’s decision to exclude Rhonda without telling her lawyer was entirely logical in the circumstances.
4. Understanding the distribution of the estate: Wotton’s instructions support the proposition that she knew she was changing the 1992 will to a will which divided her assets three ways, rather than a will which passed all assets solely to her son. 
5. Any disorder of the mind or delusions: while Wotton, had some cognitive deficits (i.e., some mild to moderate dementia), the one hour spent with the lawyer and his evidence about that time discloses to me in no uncertain terms that Mrs. Wotton  knew what she was doing. Mrs. Wotton was not suffering from any delusions or disorders of the mind that impacted on what she was intentionally doing on that date.
6. Finally, I found that Ouimet-McPherson’s evidence that in his estimation  based on his meetings with Mrs. Wotton, the manner  she answered  his questions,  the knowledge  she had  of her family, of her assets and  as he stated “an overall picture of that day”; while imperfect, is more persuasive than Dr. Sarazin’s retrospective capacity assessment.

Takeaway

Banks v Goodfellow is still the leading authority on the criteria to determine testamentary capacity to draft a valid will. Testamentary capacity is a question of fact to be determined by examining all relevant circumstances; it is a legal test determined by the drafting solicitor; therefore, the importance of keeping detailed notes is crucial, especially when a situation arises in which the mental capacity of the testator/testatrix is questioned. For Judges to accord proper evidentiary weight to capacity assessment reports, such reports need to take into account all the relevant material facts.

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[1] O’Neil v. Royal Trust Co., [1946] S.C.R. 622, at para. 32, Vout v. Hay, [1995] 2 S.C.R. 876at 888, Royal Trust Corporation of Canada v. Saunders, [2006] O.J. No. 2291 (S.C.), at para. 78.

[2] Gironda v. Gironda, 2013 ONSC 4133, 89 E.T.R. (3d) 224 at paras 50-52 and 57-58,

[3] Kay v. Kay Sr., 2019 CarswellOnt 9538, 2019 ONSC 3166