Milner v. Milner, 2024 ONSC 4232 https://canlii.ca/t/k6stc

In Milner v Milner, 2024 ONSC 4232 (“Milner”) the court dismissed an application seeking that the Applicant’s mother lacked the requisite testamentary capacity to execute her Last Will and Testament (the “Will”). The application also asserted that the Will was prepared under suspicious circumstances and that the testator was unduly influenced at the time of the Will’s execution.

All these claims were dismissed by the Court on the basis that the Applicant’s uncorroborated evidence was insufficient to prove such claims.

Facts

The Deceased had two sons, the Applicant and the Respondent. The Respondent had three children, all of whom assisted in the Deceased’s care prior to her death. The Deceased executed her Will on May 17, 2018, at the age of 91 alongside Continuing Power of Attorney for Property (“CPOAP”), a Power of Attorney for Personal Care (“POAPC”).[1] On October 18, 2021, the Deceased passed away. In the Deceased’s Will, the Respondent was appointed as her Estate Trustee, as well as her attorney under the CPOAP and the POAPC.

Due to the Deceased’s declining health, she was unable to live in her own home located at 3 Kellogg Street, Toronto (the “home”) shortly prior to her passing. In 2019, the Deceased moved into the Respondent’s home. The Deceased was assisted by the Respondent and his children until her death. In the same year, the Deceased had vocalized the desire to renovate the home and rent it to tenants to cover her health care costs. Soon after, the Respondent completed a renovation of the Deceased’s home and rented it to tenants for one year, at a monthly cost of $2,700.

The court stated it was clear that the Respondent had a distant relationship with the Deceased. In 2019, the Respondent re-emerged into the Deceased’s life and requested two wellness checks be conducted in 2020 and 2021.

The Deceased had multiple assets on her death, including a few million dollars in savings, as well as her home that was worth $1.5 million dollars.[2]

The Will

The Deceased’s Will divided the residue of the Estate (the “Estate”) into three equal shares between the Respondent, his children and the Applicant. In November of 2021, the Applicant filed a Notice of Objection to the Respondent’s Application for a Certificate of Appointment of Estate Trustee with a Will. This Notice of Objection was filed on the “on grounds of lack of testamentary capacity, undue influence, suspicious circumstances, and unfitness to act as estate trustee”.[3] The Respondent alleged that the Deceased had made an earlier Will that divided the residue of the Estate between the Applicant and the Respondent, instead of between the Respondent, his children and the Applicant.[4]

The Law:

The court asserted that the presumption “to prove a Will” lays on the propounder. In other words, the individual upholding the Will has the “the legal burden of proof with respect to due execution, knowledge and approval and testamentary capacity”.[5] In this case, the propounder of the Will was the Respondent.

[28]     As set out in Vout v. Hay, 1995 CanLII 105 (SCC), [1995] 2 S.C.R. 876 (S.C.C.), at para. 26, if a will is 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 testamentary capacity.

[29]    However, the presumption may be rebutted by evidence of suspicious circumstances relating to one or more of:

• circumstances surrounding the preparation of the will;
• circumstances tending to call into question the capacity of the testator; or
• circumstances tending to show that the free will of the testator was overborne by acts of coercion or fraud: Vout v. Hay, para. 25. Where suspicious circumstances are present, the presumption is spent and the propounder of the will reassumes the legal burden of proving knowledge and approval: Vout v. Hay, para. 27.

Evidence:

The Applicant provided only his own affidavit evidence, consisting of uncorroborated statements said by the Respondent.[6] These included statements such as “[the Deceased] told him that “… [the Applicant] forced her to change her prior will”[7] or “[the Respondent] told [the Deceased] to question the making of a new will and to tell the lawyer that she understood everything and agreed …”.[8] The Deceased also purportedly asserted that the Respondent was taking thyroid medication that could have affected her testamentary capacity.

As per the Respondent’s own evidence, he submits a police report that stated the Deceased was being taken care of in proper conditions with round the clock care. the Respondent denied all of the Applicant’s allegations.[9]

Evidence from the Deceased’s solicitor indicated that the Deceased did not exhibit symptoms of diminished testamentary capacity during the execution of the Will on May 17, 2018.[10] Additionally, the court pointed to a referral letter written by the Deceased’s family doctor on July 31, 2018, that also did not to raise any concerns regarding the Deceased’s mental capacity.[11]

Analysis
Claim #1 – Testamentary Capacity:

The court stated that there was no independent evidence to support a finding that the Deceased lacked testamentary capacity to execute the Will. Additionally, according to the solicitor’s evidence, it was clear that the Deceased had fulfilled the requirements set out in Orfus Estate v. Samuel & Bessie Orfus Family Foundation, 2011 ONSC 3043, aff’d 2012 ONCA 225[12], as the following:

Testamentary capacity is established where the testator:

(i)     understands the nature and effect of a will;

(ii)    recollects the nature and extent of his or her property;

(iii)   understands the extent of what he or she is giving under the will;

(iv)   remembers the people he or she might be expected to benefit under his or her will; and

(v)  understands the nature of the claims that may be made by persons he or she is excluding under the will.

The Applicant was unable to “rebut the presumption that the testator had testamentary capacity at the time the Will was executed”.[13]

Claim #2 – Unduly Influenced:

The Applicant was unable to prove, on a balance of probabilities, that there was actual coercion used to influence the Deceased into executing her Will. Additionally, the court found that the Applicant did not submit sufficient evidence to prove this claim.

Concluding Comments

It is clear from Milner that there is a high burden of proof that must be put forth to successfully contest a will. This includes evidence that is independently corroborated as per s. 13 of the Evidence Act, R.S.O. 1990, c. E.23.

—

[1] Ibid at para 5

[2] Ibid at para 11

[3] Ibid at para 11

[4] Ibid at para 14

[5] Ibid at para 31

[6] All Will Challenges in Ontario are subject to s. 13 of the Evidence Act R.S.O. 1990, c.E.23

[7] Ibid at para 26

[8] Ibid at para 26

[9] Ibid at para 28

[10] Ibid at para 30

[11] Ibid at para 44

[12] Orfus Estate v. Samuel & Bessie Orfus Family Foundation, 2011 ONSC 3043, aff’d in R. v. Brown, 2012 ONCA 225

[13] Ibid at para 41