1. Introduction
Since a large proportion of our population is now elderly, it is not surprising that more cases come before the courts in which a disgruntled heir alleges that mother or father cut him out of her or his will because he or she was delusional. Typically, it is coupled with an allegation of lack of capacity in general, lack of knowledge and approval, and undue influence. In other words, it’s a kitchen sink approach: if one doesn’t work, maybe the other one will. One important issue that comes into play, is the onus of proof. Roe v Roe[1] is such a case and although the judgment is unexceptional, it is good to reacquaint ourselves with these issues.
2. Facts
The testator, Beverly Roe, was a widow when she died in 2014 at age 90. Her husband died in 1995. She was an astute manager of her finances and property, her four sons, Rick, Randy, Mark, and Chris, survived her. In her 2001 Will, Beverly left her estate equally to her four sons and named them her executors. However, she made a new Will in 2005 in which she excluded Mark.
Mark brought an application to have the 2005 Will declared invalid for lack of capacity. He also brought a related action in which he sought to set aside inter vivos gifts made by Beverly to his three brothers. The court heard the two matters together. In a trial management conference, Mark agreed that if he did not succeed in having the will set aside, he had no standing to challenge the inter vivos gifts. Rick died in 2020. His estate and Randy opposed Mark’s application. Chris settled with Mark and took no position on the application but agreed to testify.
The evidence the parties adduced was copious and I outline it below.
Excursus 1
I was going to call the amount of the evidence voluminous because it is so complex and an early meaning of the word is ‘Full of turnings or windings, containing or consisting of many coils or convolutions’. As it happens, that is also the definition of a much less common but very useful adjective, anfractuous. However, I desisted because Justice Sugunasiri simplified the evidence greatly by noting that the issue was quite simple: ‘Did Beverly have capacity when she made the will’ (para 3).
Much of the evidence was concerned with family dynamics. Rick lived with his parents and later his mother and was said to be controlling and intimidating. But in fact, all family members, including Beverly, had strong personalities, and did not hesitate to express their feelings and opinions. The problem arose principally from a dispute about what Beverly should do with the title to the family chalet, which began in 2000. Rick and Randy suggested that she transfer it into her sons’ names or into Rick’s name to avoid adverse tax consequences on her death. Mark’s big fear seems to have been that Beverly would transfer the chalet solely into Rick’s name. He insisted that the parties enter into a transfer agreement, but that got nowhere, so Beverly decided to transfer the chalet equally to her four sons without an agreement, over Mark’s objections. She did so in 2001.
Mark’s wife, Kathy, took notes of conversations with Beverly. She seems to have suggested that Beverly should not tolerate Rick’s behaviour. Kathy and Mark consulted with a family services worker and wrote her a letter. Beverly told Randy that Mark and Kathy were pressuring her to see a counselor and that she denied any elder abuse by Rick. The family services worker did not pursue recommendations she made, but Mark and Kathy took the matter to the police and an officer met with Beverly, Rick, Mark, Randy, and Chris. Beverly denied any abuse, but the officer did not believe her. In 2003, during a phone call, Beverly told Mark to call off the police because there was no problem. Around the same time Kathy called Beverly’s doctor and suggested that Beverly might need counselling. When Beverly learnt of this, she removed Mark as one of her attorneys.
In 2004 Beverly told her sons that she wanted to sell the chalet and threatened to disinherit anyone who sought to prevent it. She sold the chalet in February 2004. It is not entirely clear from the reasons how she was able to do so since she had already transferred the chalet to her sons in 2001. Presumably, her sons sold the chalet at her insistence.
In 2005 Beverly’s doctor referred her to Dr Roussev for a neurological assessment and Dr Roussev confirmed early Alzheimer’s and some memory and other cognitive deficits. Also on 2005 Beverly failed her driver’s test and lost her licence.
In May 2005 Beverly complained to her family doctor about Kathy’s false statements. Then she told Mark that she intended to sever her relationship with him and Kathy. She made her new will later that year. The family doctor informed the lawyer that Beverly was competent, and that Beverly was only at the very early stages of Alzheimer’s. In a sworn statement commissioned by the lawyer, Beverly listed her reasons for disinheriting Mark: reporting Rick to the police for elder abuse; being called a liar by the police officer; Mark’s unwillingness to back down; and Kathy’s ‘pack of lies’ to Beverly’s family doctor.
3. Analysis and Judgment
3.1 Legal Framework
Justice Sugunasiri first laid out the legal framework. He Honour quoted the well-known passage from Banks v Goodfellow[2] in which Cockburn CJ states that a will is not valid if any insane delusions ‘influence [the testator’s] 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’.
Then, by reference to Vout v Hay,[3] her Honour notes that the propounder of the Will, that is, the executors, have the legal burden of establishing due execution, knowledge and approval, and testamentary capacity. If they do so, there is a rebuttable presumption that Beverly knew and approved the will. However, if Mark has adduced sufficient evidence to excite the suspicion of the court about testamentary capacity, that displaces the presumption. Then the propounders must establish on a balance of probabilities that Beverly had the necessary knowledge and approval and testamentary capacity, did not suffer from insane delusions, and understood the assets forming her estate. If they meet this burden, then the onus rests on Mark to prove on a balance of probabilities that Rick exercised undue influence over Beverly when she made her will.
Excursus 2
Her Honour does not quote what Sopinka J actually said on the matter in Vout. He said in para 26:
Upon proof that the will was duly executed with the requisite formalities, after having been read over to or by a testator who appeared to understand it, it will generally be presumed that the testator knew and approved of the contents and had the necessary capacity.
When that has been proved the rebuttable presumption is raised. The point was not relevant in Roe, but the italicised clause has received much attention in a number of cases, a number of which conclude that an actual reading is not necessary.[4] That may have to be the topic of another blog and this excursus serves as a prolepsis of that discussion.
Her Honour concluded that Mark established that Beverly executed her Will under suspicious circumstances. But she also found that the executors proved on a balance of probabilities that Beverly understood the assets forming her estate and was not affected by insane delusions that affected the disposition of her assets. Moreover, she held that Mark failed to establish on a balance of probabilities that Beverly was subject to undue influence.
3.2 Suspicious Circumstances
The totality of the evidence raised the spectre of suspicious circumstance. These included the facts about the family dynamics, the dispute about the chalet in 2000, the naming of all the children as executors and beneficiaries of the will and attorneys, allegations of elder abuse on the part of Rick, Kathy’s interaction with Beverly’s doctor, Beverly’s decision to sell the chalet, the family doctor’s referral of Beverly for a neurological assessment, and ultimately the disinheritance of Mark and the reasons for it.
3.2 Testamentary Capacity
Justice Sugunasiri defined ‘delusion’ by reference to the evidence of two geriatric psychiatrists and a number of cases as a false and fixed belief which is inconsistent with a person’s background, which is incapable of explanation or rationalization and which the person is unable or refuses to alter when told that it is unfounded. A delusion involves a belief in something that is extremely improbable and that takes over a person’s will-making power.
Her Honour concluded that Beverly was not suffering from such insane delusions. Her disinheritance of Mark had a factual basis in Mark and Kathy’s allegation of elder abuse and their reporting of Rick to the police, in her understanding of what Kathy told the family doctor, and in her belief that Mark and Kathy were trying to frame Rick.
3.3 Undue Influence
Although Rick (and Mark and Randy) went out of their way to influence their mother about the handling and disposition of her assets, including the chalet, none of it amounted to undue influence. Another expert outlined the typical conditions that can lead to elder abuse. He opined that, based on some of those conditions, Beverly was vulnerable to elder abuse. However, her Honour disputed the facts he assumed and the emphasis he placed on them. In her view, Beverly was not at risk from elder abuse from Rick. As she says (para 54), ‘Beverly was a feisty matriarch who knew exactly what was happening to herself and her family’ at the time she executed her Will in 2005. The fact that Rick lived with her did not make her particularly vulnerable to Rick and therefore she was not an ‘isolated person entirely dependant [sic] on a tyrannical adult child’ (para 56).
Excursus 3
It is unfortunate that her Honour referred to cases involving the equitable doctrine of undue influence, such as Geffen v Goodman Estate,[5] and Allcard v Skinner.[6] Although probate law also has a doctrine of undue influence, it differs from the equitable doctrine. Thus, for example, the equitable doctrine raises a presumption of undue influence against a beneficiary of an inter vivos transaction; such a presumption does not arise under the comparable probate doctrine.[7]
4. Order
Accordingly, her Honour dismissed the application. She also dismissed the action on the basis that Mark has no standing to challenge the inter vivos gifts to his brothers.
—
[1]2022 ONSC 5821.
[2] (1870), LR 5 QB 549 at 565
[3] [1995] 2 SCR 876, para 26.
[4]See e.g., my earlier blogs: https://welpartners.com/blog/2022/10/the-presumption-of-due-execution-re-grace-estate/; https://welpartners.com/blog/2022/11/delusions-and-testamentary-capacity-2/.
[5] [1991] 2 SCR 353, 1991 CarswellAlta 557.
[6] (1887), 36 Ch D 145 (CA).
[7] Re Pearson, 2018 ONCA 355. (Her Honour does cite this case in para 9, but not for this point.) See also Albert H Oosterhoff, ‘The Discrete Functions of Courts of Probate and Construction’ (2017), 46 Adv Q 316 at 339.
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Written by: Albert Oosterhoff
Posted on: March 20, 2023
Categories: Commentary, WEL Newsletter
1. Introduction
Since a large proportion of our population is now elderly, it is not surprising that more cases come before the courts in which a disgruntled heir alleges that mother or father cut him out of her or his will because he or she was delusional. Typically, it is coupled with an allegation of lack of capacity in general, lack of knowledge and approval, and undue influence. In other words, it’s a kitchen sink approach: if one doesn’t work, maybe the other one will. One important issue that comes into play, is the onus of proof. Roe v Roe[1] is such a case and although the judgment is unexceptional, it is good to reacquaint ourselves with these issues.
2. Facts
The testator, Beverly Roe, was a widow when she died in 2014 at age 90. Her husband died in 1995. She was an astute manager of her finances and property, her four sons, Rick, Randy, Mark, and Chris, survived her. In her 2001 Will, Beverly left her estate equally to her four sons and named them her executors. However, she made a new Will in 2005 in which she excluded Mark.
Mark brought an application to have the 2005 Will declared invalid for lack of capacity. He also brought a related action in which he sought to set aside inter vivos gifts made by Beverly to his three brothers. The court heard the two matters together. In a trial management conference, Mark agreed that if he did not succeed in having the will set aside, he had no standing to challenge the inter vivos gifts. Rick died in 2020. His estate and Randy opposed Mark’s application. Chris settled with Mark and took no position on the application but agreed to testify.
The evidence the parties adduced was copious and I outline it below.
Excursus 1
I was going to call the amount of the evidence voluminous because it is so complex and an early meaning of the word is ‘Full of turnings or windings, containing or consisting of many coils or convolutions’. As it happens, that is also the definition of a much less common but very useful adjective, anfractuous. However, I desisted because Justice Sugunasiri simplified the evidence greatly by noting that the issue was quite simple: ‘Did Beverly have capacity when she made the will’ (para 3).
Much of the evidence was concerned with family dynamics. Rick lived with his parents and later his mother and was said to be controlling and intimidating. But in fact, all family members, including Beverly, had strong personalities, and did not hesitate to express their feelings and opinions. The problem arose principally from a dispute about what Beverly should do with the title to the family chalet, which began in 2000. Rick and Randy suggested that she transfer it into her sons’ names or into Rick’s name to avoid adverse tax consequences on her death. Mark’s big fear seems to have been that Beverly would transfer the chalet solely into Rick’s name. He insisted that the parties enter into a transfer agreement, but that got nowhere, so Beverly decided to transfer the chalet equally to her four sons without an agreement, over Mark’s objections. She did so in 2001.
Mark’s wife, Kathy, took notes of conversations with Beverly. She seems to have suggested that Beverly should not tolerate Rick’s behaviour. Kathy and Mark consulted with a family services worker and wrote her a letter. Beverly told Randy that Mark and Kathy were pressuring her to see a counselor and that she denied any elder abuse by Rick. The family services worker did not pursue recommendations she made, but Mark and Kathy took the matter to the police and an officer met with Beverly, Rick, Mark, Randy, and Chris. Beverly denied any abuse, but the officer did not believe her. In 2003, during a phone call, Beverly told Mark to call off the police because there was no problem. Around the same time Kathy called Beverly’s doctor and suggested that Beverly might need counselling. When Beverly learnt of this, she removed Mark as one of her attorneys.
In 2004 Beverly told her sons that she wanted to sell the chalet and threatened to disinherit anyone who sought to prevent it. She sold the chalet in February 2004. It is not entirely clear from the reasons how she was able to do so since she had already transferred the chalet to her sons in 2001. Presumably, her sons sold the chalet at her insistence.
In 2005 Beverly’s doctor referred her to Dr Roussev for a neurological assessment and Dr Roussev confirmed early Alzheimer’s and some memory and other cognitive deficits. Also on 2005 Beverly failed her driver’s test and lost her licence.
In May 2005 Beverly complained to her family doctor about Kathy’s false statements. Then she told Mark that she intended to sever her relationship with him and Kathy. She made her new will later that year. The family doctor informed the lawyer that Beverly was competent, and that Beverly was only at the very early stages of Alzheimer’s. In a sworn statement commissioned by the lawyer, Beverly listed her reasons for disinheriting Mark: reporting Rick to the police for elder abuse; being called a liar by the police officer; Mark’s unwillingness to back down; and Kathy’s ‘pack of lies’ to Beverly’s family doctor.
3. Analysis and Judgment
3.1 Legal Framework
Justice Sugunasiri first laid out the legal framework. He Honour quoted the well-known passage from Banks v Goodfellow[2] in which Cockburn CJ states that a will is not valid if any insane delusions ‘influence [the testator’s] 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’.
Then, by reference to Vout v Hay,[3] her Honour notes that the propounder of the Will, that is, the executors, have the legal burden of establishing due execution, knowledge and approval, and testamentary capacity. If they do so, there is a rebuttable presumption that Beverly knew and approved the will. However, if Mark has adduced sufficient evidence to excite the suspicion of the court about testamentary capacity, that displaces the presumption. Then the propounders must establish on a balance of probabilities that Beverly had the necessary knowledge and approval and testamentary capacity, did not suffer from insane delusions, and understood the assets forming her estate. If they meet this burden, then the onus rests on Mark to prove on a balance of probabilities that Rick exercised undue influence over Beverly when she made her will.
Excursus 2
Her Honour does not quote what Sopinka J actually said on the matter in Vout. He said in para 26:
Upon proof that the will was duly executed with the requisite formalities, after having been read over to or by a testator who appeared to understand it, it will generally be presumed that the testator knew and approved of the contents and had the necessary capacity.
When that has been proved the rebuttable presumption is raised. The point was not relevant in Roe, but the italicised clause has received much attention in a number of cases, a number of which conclude that an actual reading is not necessary.[4] That may have to be the topic of another blog and this excursus serves as a prolepsis of that discussion.
Her Honour concluded that Mark established that Beverly executed her Will under suspicious circumstances. But she also found that the executors proved on a balance of probabilities that Beverly understood the assets forming her estate and was not affected by insane delusions that affected the disposition of her assets. Moreover, she held that Mark failed to establish on a balance of probabilities that Beverly was subject to undue influence.
3.2 Suspicious Circumstances
The totality of the evidence raised the spectre of suspicious circumstance. These included the facts about the family dynamics, the dispute about the chalet in 2000, the naming of all the children as executors and beneficiaries of the will and attorneys, allegations of elder abuse on the part of Rick, Kathy’s interaction with Beverly’s doctor, Beverly’s decision to sell the chalet, the family doctor’s referral of Beverly for a neurological assessment, and ultimately the disinheritance of Mark and the reasons for it.
3.2 Testamentary Capacity
Justice Sugunasiri defined ‘delusion’ by reference to the evidence of two geriatric psychiatrists and a number of cases as a false and fixed belief which is inconsistent with a person’s background, which is incapable of explanation or rationalization and which the person is unable or refuses to alter when told that it is unfounded. A delusion involves a belief in something that is extremely improbable and that takes over a person’s will-making power.
Her Honour concluded that Beverly was not suffering from such insane delusions. Her disinheritance of Mark had a factual basis in Mark and Kathy’s allegation of elder abuse and their reporting of Rick to the police, in her understanding of what Kathy told the family doctor, and in her belief that Mark and Kathy were trying to frame Rick.
3.3 Undue Influence
Although Rick (and Mark and Randy) went out of their way to influence their mother about the handling and disposition of her assets, including the chalet, none of it amounted to undue influence. Another expert outlined the typical conditions that can lead to elder abuse. He opined that, based on some of those conditions, Beverly was vulnerable to elder abuse. However, her Honour disputed the facts he assumed and the emphasis he placed on them. In her view, Beverly was not at risk from elder abuse from Rick. As she says (para 54), ‘Beverly was a feisty matriarch who knew exactly what was happening to herself and her family’ at the time she executed her Will in 2005. The fact that Rick lived with her did not make her particularly vulnerable to Rick and therefore she was not an ‘isolated person entirely dependant [sic] on a tyrannical adult child’ (para 56).
Excursus 3
It is unfortunate that her Honour referred to cases involving the equitable doctrine of undue influence, such as Geffen v Goodman Estate,[5] and Allcard v Skinner.[6] Although probate law also has a doctrine of undue influence, it differs from the equitable doctrine. Thus, for example, the equitable doctrine raises a presumption of undue influence against a beneficiary of an inter vivos transaction; such a presumption does not arise under the comparable probate doctrine.[7]
4. Order
Accordingly, her Honour dismissed the application. She also dismissed the action on the basis that Mark has no standing to challenge the inter vivos gifts to his brothers.
—
[1]2022 ONSC 5821.
[2] (1870), LR 5 QB 549 at 565
[3] [1995] 2 SCR 876, para 26.
[4]See e.g., my earlier blogs: https://welpartners.com/blog/2022/10/the-presumption-of-due-execution-re-grace-estate/; https://welpartners.com/blog/2022/11/delusions-and-testamentary-capacity-2/.
[5] [1991] 2 SCR 353, 1991 CarswellAlta 557.
[6] (1887), 36 Ch D 145 (CA).
[7] Re Pearson, 2018 ONCA 355. (Her Honour does cite this case in para 9, but not for this point.) See also Albert H Oosterhoff, ‘The Discrete Functions of Courts of Probate and Construction’ (2017), 46 Adv Q 316 at 339.
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