Slover v. Rellinger, 2019 ONSC 6497
Honouring a testator’s wishes is of fundamental importance in estate litigation, but this task is often complicated by the circumstances of the testator’s life. The court is, after all, ultimately asked to examine the thoughts of someone who is no longer able to explain them. A person’s opinions and values can change as they age, but when has a testator genuinely changed their mind, and when is the change a result of undue influence or a loss of capacity? Difficult family dynamics, particularly when the testator is vulnerable, can easily complicate this question further.
Slover v. Rellinger was a dispute between two siblings over their late mother’s estate. Sanfilippo J. carefully examined a complex series of estate planning decisions, to determine which of the testator’s many, and sometimes inconsistent, documents were valid. The lengthy trial decision canvassed existing caselaw on testamentary capacity and undue influence, and provided a thorough demonstration of the principles judges must rely on in this challenging area of law.
The Voir Dire http://welpartners.com/blog/2019/11/slover-v-rellinger-retrospective-capacity-assessment-is-admissible-evidence/
Even before the trial decision, this case was noteworthy for its voir dire on the admissibility of retrospective capacity assessment. Joan had retained Dr. Kenneth Shulman, who had never examined Gertrude, to provide this retrospective expert opinion. Sanfilippo J. rejected James’ argument that a retrospective assessment was based on “novel science,” and ruled that Dr. Shulman’s expert opinion was admissible, noting that “many types of medical and psychiatric opinions offered in trials are retrospective in nature”. At trial, however, Sanfilippo J. rejected Dr. Shulman’s opinion that Gertrude had suffered from delusions, and found that it was “based on presumed facts that I do not accept”.
Background
The deceased, Gertrude Rellinger (“Gertrude”), was a wealthy investor who died in 2016. She was described as “autocratic and strong-willed, dominant and controlling”. At trial, witnesses “recalled Gertrude’s philosophy… foisted on Gertrude as if life-defining, that those who treated her well would be rewarded and those who treated her poorly would be punished”.
Gertrude had two adult children: Joan Slover (“Joan”) and James Rellinger (“James”). Until 2005, Gertrude gifted money to her children in equal amounts, meticulously documented these gifts in two ledgers, and gave every indication that she intended to leave 50% of her estate to each of them.
In 2008, Gertrude executed a new Will that removed Joan as an Estate Trustee, leaving only James. The Will still provided equal bequests, except in that it forgave a loan that Gertrude had given to James, with no equivalent gift to Joan. The apparent reason for this move toward unequal gifts was that Gertrude’s relationship with Joan had worsened since 2005. Gertrude’s health had declined, she had suffered a fall in Joan’s home, and she had moved into a care facility that she disliked “with Joan’s input”. Gertrude appeared to lose trust in Joan, and made various allegations about Joan’s management of her property.
In 2013, after Gertrude’s relationship with Joan had deteriorated further, she changed her Will again. This time, she left 75% to James and 25% to Joan. Her lawyers obtained a capacity assessment that found that she “did not have a logical thought process,” and that her opinion of Joan was inconsistent with the care that Joan provided to her. Despite this opinion, the lawyers concluded that she did have testamentary capacity.
After the execution of the 2013 Will, James took significant steps to involve himself in Gertrude’s estate planning. He replaced her longtime lawyers, changed her banking arrangements, and – through a team of professionals that he had retained – presented her with several documents (“the Post-August 2013 Documents”) to execute in 2013 and 2014. These documents had wide-ranging and sometimes contradictory effects, which notably included: transferring Gertrude’s assets into joint tenancy with James with right of survivorship, disinheriting Joan, and granting James discretion over whether to transfer any of Gertrude’s estate to Joan. During this span, James also facilitated Gertrude’s move from Waterloo to a facility in Toronto, and restricted Joan’s access to Gertrude.
After Gertrude’s death, James sought to keep all of Gertrude’s wealth, while Joan sought to obtain half of it. Sanfilippo J. identified two main issues: whether the Post-August 2013 documents were valid, and, if not, whether the 2013 Will was valid.
Decision
Sanfilippo J. ultimately ruled that the May 2013 Will was valid, as Joan had not proven incapacity or undue influence at that time. However, the Post-August 2013 Documents were found to have resulted from James’ undue influence, and therefore to be invalid.
Testamentary Capacity
Sanfilippo J. first examined the burden of proof in a capacity challenge. The party propounding a Will has an onus to establish due execution of the Will. By doing so, that party creates a rebuttable presumption of capacity,[1] unless the other party demonstrates suspicious circumstances.[2] Sanfilippo J. found that the questions surrounding Gertrude’s mental and emotional health prior to the execution of the 2013 Will, as well as the capacity assessment from that time, constituted suspicious circumstances, and imposed an onus of James to prove capacity.
Joan’s only challenge to Getrude’s capacity was that Gertrude had been influenced by “insane delusions,” based on her belief that Joan was an “uncaring, unkind, inattentive daughter who was untrustworthy”. Sanfilippo J. accepted the experts’ characterization of a delusion as “a fixed false belief that is out of keeping with one’s educational, cultural and religious background, that is incapable of being altered when shown to be unfounded”. The caselaw further indicated that a delusion can cause testamentary incapacity if it has “taken over the person’s will-making,” and that “[a]nger or resentment based on a factual basis that exists is not enough”.
Gertrude’s beliefs, even if mistaken in some parts, were grounded in facts. Her remarks about Joan not having visited, and about Joan’s management of her property, contained at least some grains of truth. She truly had experienced problems under Joan’s care, and at the facility that Joan had influenced her to move into.
Sanfilippo J. ruled that James had proven Gertrude’s testamentary capacity. Gertrude’s beliefs about Joan were “tenuous and perhaps unfair,” but were not delusions. A testator can make mistakes, and behave unreasonably, without being incapable.
Undue Influence
Sanfilippo J. first noted that although an inter vivos gift from a parent to an adult child is subject to a presumption of undue influence, this presumption does not apply to a testamentary gift, even when there are suspicious circumstances.[3] To prove undue influence, Joan needed to prove that James had exerted an influence “so great and overpowering that the document reflects the will of [James] and not of [Gertrude]”.[4]
Sanfilippo J. drew a list indicators of undue influence from Gironda[5] and Tate.[6] This list consisted of: physical or emotional dependence, social isolation, recent family conflict, recent bereavement, a new Will inconsistent with prior Wills, testamentary changes simultaneous with changes to other legal documents, substantial pre-death transfers of wealth, using a lawyer previously unknown to the testator and chosen by the alleged influencer, the alleged influencer communicating instructions to the lawyer, and the alleged influencer receiving a draft of the document before the testator.
Gertrude had made the 2013 Will on her own initiative, without input from James, and with help from her longtime lawyer. The Post-August 2013 documents, however, had been prepared by professionals retained by James, and seemingly on his instructions. Gertrude had experienced family conflict with Joan, had become socially isolated – especially after moving to Toronto – and had become dependent on James. James had restricted Joan’s access to Gertrude. He had received large transfers of wealth from Gertrude. The dispositions in the Post-August 2013 documents had inconsistent effects, and it was not always clear that Gertrude understood this.
Sanfilippo J. did not find undue influence in the making of the 2013 Will, but did find it in the making of the various subsequent documents.
—
[1] Vout v. Hay, [1995] 2 S.C.R. 876, 1995 CanLII 105 (SCC).
[2] Ibid; and Stekar v. Wilcox, 2017 ONCA 1010.
[3] Banton v. Banton, 1998 CanLII 14926 (ON SC).
[4] Ibid.
[5] Gironda v. Gironda, 2013 ONSC 4133.
[6] Tate v. Gueguegirre, 2015 ONSC 844.
—
This paper is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This paper is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.
Menu
Written by: Henry Howe
Posted on: November 29, 2019
Categories: Commentary, WEL Newsletter
Slover v. Rellinger, 2019 ONSC 6497
Honouring a testator’s wishes is of fundamental importance in estate litigation, but this task is often complicated by the circumstances of the testator’s life. The court is, after all, ultimately asked to examine the thoughts of someone who is no longer able to explain them. A person’s opinions and values can change as they age, but when has a testator genuinely changed their mind, and when is the change a result of undue influence or a loss of capacity? Difficult family dynamics, particularly when the testator is vulnerable, can easily complicate this question further.
Slover v. Rellinger was a dispute between two siblings over their late mother’s estate. Sanfilippo J. carefully examined a complex series of estate planning decisions, to determine which of the testator’s many, and sometimes inconsistent, documents were valid. The lengthy trial decision canvassed existing caselaw on testamentary capacity and undue influence, and provided a thorough demonstration of the principles judges must rely on in this challenging area of law.
The Voir Dire http://welpartners.com/blog/2019/11/slover-v-rellinger-retrospective-capacity-assessment-is-admissible-evidence/
Even before the trial decision, this case was noteworthy for its voir dire on the admissibility of retrospective capacity assessment. Joan had retained Dr. Kenneth Shulman, who had never examined Gertrude, to provide this retrospective expert opinion. Sanfilippo J. rejected James’ argument that a retrospective assessment was based on “novel science,” and ruled that Dr. Shulman’s expert opinion was admissible, noting that “many types of medical and psychiatric opinions offered in trials are retrospective in nature”. At trial, however, Sanfilippo J. rejected Dr. Shulman’s opinion that Gertrude had suffered from delusions, and found that it was “based on presumed facts that I do not accept”.
Background
The deceased, Gertrude Rellinger (“Gertrude”), was a wealthy investor who died in 2016. She was described as “autocratic and strong-willed, dominant and controlling”. At trial, witnesses “recalled Gertrude’s philosophy… foisted on Gertrude as if life-defining, that those who treated her well would be rewarded and those who treated her poorly would be punished”.
Gertrude had two adult children: Joan Slover (“Joan”) and James Rellinger (“James”). Until 2005, Gertrude gifted money to her children in equal amounts, meticulously documented these gifts in two ledgers, and gave every indication that she intended to leave 50% of her estate to each of them.
In 2008, Gertrude executed a new Will that removed Joan as an Estate Trustee, leaving only James. The Will still provided equal bequests, except in that it forgave a loan that Gertrude had given to James, with no equivalent gift to Joan. The apparent reason for this move toward unequal gifts was that Gertrude’s relationship with Joan had worsened since 2005. Gertrude’s health had declined, she had suffered a fall in Joan’s home, and she had moved into a care facility that she disliked “with Joan’s input”. Gertrude appeared to lose trust in Joan, and made various allegations about Joan’s management of her property.
In 2013, after Gertrude’s relationship with Joan had deteriorated further, she changed her Will again. This time, she left 75% to James and 25% to Joan. Her lawyers obtained a capacity assessment that found that she “did not have a logical thought process,” and that her opinion of Joan was inconsistent with the care that Joan provided to her. Despite this opinion, the lawyers concluded that she did have testamentary capacity.
After the execution of the 2013 Will, James took significant steps to involve himself in Gertrude’s estate planning. He replaced her longtime lawyers, changed her banking arrangements, and – through a team of professionals that he had retained – presented her with several documents (“the Post-August 2013 Documents”) to execute in 2013 and 2014. These documents had wide-ranging and sometimes contradictory effects, which notably included: transferring Gertrude’s assets into joint tenancy with James with right of survivorship, disinheriting Joan, and granting James discretion over whether to transfer any of Gertrude’s estate to Joan. During this span, James also facilitated Gertrude’s move from Waterloo to a facility in Toronto, and restricted Joan’s access to Gertrude.
After Gertrude’s death, James sought to keep all of Gertrude’s wealth, while Joan sought to obtain half of it. Sanfilippo J. identified two main issues: whether the Post-August 2013 documents were valid, and, if not, whether the 2013 Will was valid.
Decision
Sanfilippo J. ultimately ruled that the May 2013 Will was valid, as Joan had not proven incapacity or undue influence at that time. However, the Post-August 2013 Documents were found to have resulted from James’ undue influence, and therefore to be invalid.
Testamentary Capacity
Sanfilippo J. first examined the burden of proof in a capacity challenge. The party propounding a Will has an onus to establish due execution of the Will. By doing so, that party creates a rebuttable presumption of capacity,[1] unless the other party demonstrates suspicious circumstances.[2] Sanfilippo J. found that the questions surrounding Gertrude’s mental and emotional health prior to the execution of the 2013 Will, as well as the capacity assessment from that time, constituted suspicious circumstances, and imposed an onus of James to prove capacity.
Joan’s only challenge to Getrude’s capacity was that Gertrude had been influenced by “insane delusions,” based on her belief that Joan was an “uncaring, unkind, inattentive daughter who was untrustworthy”. Sanfilippo J. accepted the experts’ characterization of a delusion as “a fixed false belief that is out of keeping with one’s educational, cultural and religious background, that is incapable of being altered when shown to be unfounded”. The caselaw further indicated that a delusion can cause testamentary incapacity if it has “taken over the person’s will-making,” and that “[a]nger or resentment based on a factual basis that exists is not enough”.
Gertrude’s beliefs, even if mistaken in some parts, were grounded in facts. Her remarks about Joan not having visited, and about Joan’s management of her property, contained at least some grains of truth. She truly had experienced problems under Joan’s care, and at the facility that Joan had influenced her to move into.
Sanfilippo J. ruled that James had proven Gertrude’s testamentary capacity. Gertrude’s beliefs about Joan were “tenuous and perhaps unfair,” but were not delusions. A testator can make mistakes, and behave unreasonably, without being incapable.
Undue Influence
Sanfilippo J. first noted that although an inter vivos gift from a parent to an adult child is subject to a presumption of undue influence, this presumption does not apply to a testamentary gift, even when there are suspicious circumstances.[3] To prove undue influence, Joan needed to prove that James had exerted an influence “so great and overpowering that the document reflects the will of [James] and not of [Gertrude]”.[4]
Sanfilippo J. drew a list indicators of undue influence from Gironda[5] and Tate.[6] This list consisted of: physical or emotional dependence, social isolation, recent family conflict, recent bereavement, a new Will inconsistent with prior Wills, testamentary changes simultaneous with changes to other legal documents, substantial pre-death transfers of wealth, using a lawyer previously unknown to the testator and chosen by the alleged influencer, the alleged influencer communicating instructions to the lawyer, and the alleged influencer receiving a draft of the document before the testator.
Gertrude had made the 2013 Will on her own initiative, without input from James, and with help from her longtime lawyer. The Post-August 2013 documents, however, had been prepared by professionals retained by James, and seemingly on his instructions. Gertrude had experienced family conflict with Joan, had become socially isolated – especially after moving to Toronto – and had become dependent on James. James had restricted Joan’s access to Gertrude. He had received large transfers of wealth from Gertrude. The dispositions in the Post-August 2013 documents had inconsistent effects, and it was not always clear that Gertrude understood this.
Sanfilippo J. did not find undue influence in the making of the 2013 Will, but did find it in the making of the various subsequent documents.
—
[1] Vout v. Hay, [1995] 2 S.C.R. 876, 1995 CanLII 105 (SCC).
[2] Ibid; and Stekar v. Wilcox, 2017 ONCA 1010.
[3] Banton v. Banton, 1998 CanLII 14926 (ON SC).
[4] Ibid.
[5] Gironda v. Gironda, 2013 ONSC 4133.
[6] Tate v. Gueguegirre, 2015 ONSC 844.
—
This paper is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This paper is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.
Author
View all posts