1. Introduction

I have hesitated to write a blog on the recent case, Abbruzzese v Tucci,^[1] a decision of Madam Justice C. Gilmore, because it is very long. It runs to 325 paragraphs spread over 82 printed pages. But I decided to blog it nonetheless, because the reasons are most excellent and discuss the indicators that suggest undue influence, as well as those that suggest lack of testamentary capacity. Thus, in my opinion, the case is well worth a read.

2. Facts

The case concerns proceedings between two sisters, the Applicant, Angela Abbruzzese (’Angela’), and the Respondent, Bernadette Tucci (‘Bernadette’). Angela brought an application in which she challenged the 2016 Will of her mother Maria, on the grounds that she lacked capacity and was subjected to undue influence by Bernadette. Angela also challenged the 2016 inter vivos transfer of Maria’s house into the joint names of Maria and Bernadette.

Maria was a first-generation Italian immigrant. She had very little formal education, never learned to read or write English and did not speak English fluently. She and her husband Carlo bought their house in 1961. Carlo died in 2005, and Maria continued to live in the house until she died. Bernadette is 64 years old. When her first marriage ended, she married again and moved to Texas with her new husband. However, she and her husband later separated, she moved back to Toronto in 2009 and has lived with her mother ever since. Bernadette has not been gainfully employed. She has two children, Tamara and Stefan. Angela is 71 years old, was a teacher and continues to work part time. She and her husband had three children, one of whom died in 2000.

Carlo and Maria did not believe in investing their moneys but kept them in both a checking and a savings account. Whenever she needed money, Maria would go to the bank, and she always paid for everything in cash. The parents had been very generous to both daughters, giving them significant moneys to buy homes when they married. Maria was a homebody and did not go out very much. But by all accounts, she was mostly independent in all respects until 2012.

After her husband died, Maria went to her solicitor, Mr Tanzola, to make a new Will and Powers of Attorney. The Will, made in 2007, left her estate equally to her two daughters and named them jointly as her attorneys for property and personal care. Angela and Bernadette were aware of the terms of the Will.

In 2012 Maria was diagnosed with polymyalgia rheumatica (‘PMR’) and thereafter her health declined, and she needed assistance for household tasks. Her doctor referred her to a social worker, Ms. Stark, for a geriatric assessment in May 2014. Bernadette accompanied her to translate questions into Italian. Ms. Stark noted that Maria was very much dependent on Bernadette for her daily tasks. Maria got a low score on a Mini Mental State Exam and displayed poor insight into her declining cognition and memory.

In September 2014 Bernadette and Angela had a serious disagreement in which they made various allegations against each other. Thereafter, Bernadette did not allow Angela to visit often with her mother, and Angela alleged that Bernadette was keeping information about their mother from her and was cloistering her from the rest of the family.

Maria had surgery in September of 2015 for a hip replacement after a fall, but Bernadette failed to inform Angela about the surgery for five days. Then Angela visited her mother in the hospital and cared for her there. She discovered that her mother’s head was covered in lice. Bernadette also did not inform Angela about her mother’s discharge from hospital. But she told hospital staff that Angela had not seen her mother for 18 months. Maria returned to hospital in December of 2015. A former common law partner of Stefan, Bernadette’s son, informed Angela that Bernadette was planning to have Maria’s 2007 Will changed, that Angela would receive less under the new will, and that Bernadette had brainwashed Maria not to talk to Angela.

In March 2016 Bernadette arranged for two bank employees to see Maria at home and to change her banking arrangements. They presented her with a bank power of attorney, which Maria signed, and which named Bernadette as her attorney. One of the employees described Maria as being capable of giving instructions for the power of attorney and described her as being ‘on the ball’ and ‘very sharp’. The other employee had known Maria as a banking customer for years.

Also, in March 2014 Maria arranged for Maria to see a different lawyer, Mr. Vumbaca. In evidence, she claimed that she did not know the lawyer who prepared the 2007 Will. Maria told the lawyer that she had a strained relationship with Angela, and that she wanted to transfer title to her house into joint names with Bernadette. Mr. Vacumba’s notes indicated that Maria was very coherent and appeared to understand everything. The new Will was signed in April 2016. It appointed Bernadette as the executor and the attorney under the new Power of Attorney for Property and Power of Attorney for Personal Care. Then Maria signed the transfer of the house into joint names.

In May 2016 Maria had a second hip operation and was diagnosed with dementia among other conditions. Angela was able to visit her mother in hospital, but her Power of Attorney was rejected because of the more recent one. Angela videotaped her mother during some visits. During the videotapes, Maria could not remember signing the new Powers of Attorney. She assured Angela that her money was in the bank, that Bernadette could not touch it, and that the moneys, as well as the house, belonged to both daughters. However, by June 2016 Angela became aware that large amounts of money had been taken out of the bank accounts. In fact, Bernadette withdrew most of the funds from her mother’s accounts within three months after Maria signed the Bank Power of Attorney. During that period, the moneys in the account were reduced from some $80,000 to about $3,000.

Angela had brought earlier proceedings to force Bernadette to pass her accounts. In 2023 Gilmore J., ordered Bernadette to bring an application to pass accounts for the period of 1 January 2015 to the date of Maria’s death on 5 March 2018 and her Honour ordered Bernadette to repay some $60,000 to her mother’s estate. Angela brought this application in August 2016.

3. Analysis and Judgment

3.1 Evidence

Justice Gilmore considered the evidence of a large number of witnesses, both non-party and expert witnesses. Of the former, some testified that Maria lacked capacity and may have been subjected to undue influence; others countered that evidence. One of those witnesses was Joseph Nazzicone whom Bernadette dated for six years and who remained a friend. Of particular interest was the evidence of Section 3 Counsel, who testified that she had a sense that there might have been some undue influence because Bernadette seemed to have been coaching her mother about what to say. Her Honour considered the evidence of Joseph Nazzicone to be entirely unreliable because he attempted to influence Maria against Angela and was acting in concert with Bernadette.

There were two expert witnesses. The first, Dr Bruto, was a certified Clinical Neuropsychologist. She relied on Maria’s medical records and prepared eight reports, consisting of contemporaneous assessments of Maria’s capacity to name attorneys for personal care and property, of her ability to manage her personal care and her finances, and an assessment of Maria’s testamentary capacity. She testified that much of what Maria said did not make sense. She thought her statements were ritualistic because she could not explain why she was making them. The second expert, Dr Mitchell, had postgraduate and specialty training in behavioural neurology and neuropsychiatry. She never met Maria but was of opinion that Maria had capacity at the relevant times.

Justice Gilmore began her analysis with the following statement:

187      Maria Iannarelli was the subject of a plan by her daughter Bernadette. Through coercion, persuasion and indoctrination, over time she convinced her mother that her sister Angela was undeserving and absent. Through repetition and coaching at a time when her mother was vulnerable, she persuaded her mother that her caregiving efforts were worthy of her receiving almost the entire family estate. What was left to be divided between Bernadette and her sister was then conveniently dissipated to almost nothing by Bernadette by their mother’s date of death.

She agreed (para 188) that the parties conduct toward each other and toward their mother was at times ‘shameful, vengeful and shocking’. However, the Judge stated, ‘in the end I accept that had it not been for Bernadette’s influence over her mother at a time when her mother was most vulnerable, the Estate would have been divided between the parties as originally intended by the testator’. Her Honour preferred the evidence of Angela when there was a conflict in the evidence, and found Bernadette to be a less credible witness. She found that Bernadette was instrumental in proclaiming that Angela was a bad person who had little contact with her mother, and that she attempted to minimize Angela’s contact with her mother. In consequence, Bernadette had Maria sign a new Will and Powers of Attorney, for which she did not use the original lawyer.

Her Honour then turned to the legal issues of undue influence (testamentary and inter vivos), and testamentary capacity.

3.2 Testamentary Undue Influence

On this issue her Honour relied on the indicia of undue influence set out in Gironda v Gironda:^[2]

(a) where the testator is dependent on the beneficiary for emotional and physical needs;

(b) where the testator is socially isolated;

(c) where the testator has experienced recent family conflict;

(d) where the testator has experienced recent bereavement;

(e) where the testator has made substantial pre-death transfer of wealth to the respondent;

(f) where the testator has made a new will not consistent with prior wills;

(g) where the testator has failed to provide a reason or explanation for unexpectedly excluding a family member;

(h) where the testator uses a lawyer previously unknown to him or her and chosen by the respondent.

She noted that all these indicia were present in this case, but added that there may also be another indicium, namely, when the influencer gives instructions directly or indirectly to the testator’s solicitor. She found that: (1) Maria was dependent on Bernadette; (2) Bernadette physically isolated her mother; (3) Maria was aware of the conflict between her daughters; (4) Maria continued to be greatly affected by her husband’s death even though that occurred some years ago; (5) Maria transferred her wealth to Bernadette before her death; (6) She made a new Will in 2016 that was inconsistent with her 2007 Will; (7) Maria’s reasons for rewarding Bernadette were delivered in a ritualistic manner and later she did not recall that she wanted both her daughters to be her attorneys; and (8) She repeated in a rote-like manner what Bernadette had told her to say to the new solicitor.

By reference to Banton v Banton,^[3] her Honour stated that, in addition to the Gironda indicia, the court may also consider the effect of the testator’s physical and mental condition on her vulnerability. Her Honour found that Maria’s physical constraints, coupled with the evidence of cognitive deterioration, meant that she was vulnerable and fully dependent on Bernadette, particularly after she was discharged from hospital in October 2015.

When she considered whether the evidence met the test, her Honour noted, rightly, that there is no presumption of undue influence for testamentary undue influence. While there was no evidence of overt threats, her Honor stated, ‘it is clear that Maria was changing her Will for reasons that were ‘programmed’. Moreover, there was evidence that Maria had no choice but to do what Bernadette asked of her. Thus, her intentions were not her own, and she was unable to explain why she made those programmed statements. Consequently, Justice Gilmore concluded that the 2016 Will had to be set aside for testamentary undue influence.

3.3 Inter Vivos Undue Influence

Her Honour noted that there are two types of undue influence in connection with inter vivos transfers: actual and presumed. Actual undue influence consists of actual and provable coercion. Presumed undue influence when there is a relationship between the parties that has the potential for domination. Thus, the presumption may arise if the relationship between parent and child is one of dependency. Indicia may include fear of the child, isolation of the parent by the child, and reliance on the child for companionship, help in the home, and assistance with the parent’s financial and business matters. Her Honour found that all these indicia were present in this case, so that the presumption was triggered. Consequently, the onus fell on Bernadette to rebut the presumption. Her Honour concluded that Bernadette failed to adduce sufficient evidence to rebut the presumption of undue influence. She went on to say that if she was wrong, there was sufficient evidence to find that the house was held on a resulting trust for the estate based on testamentary undue influence.

3.4 Testamentary Capacity

Her Honour noted that not only was Maria vulnerable with respect to dependency and her relationship with Bernadette, but that vulnerability was exacerbated by the fact that Maria was incapable when a contemporaneous assessment was done in 2017 and when she executed the new Will, Powers of Attorney, and the transfer document of the house. On this issue her Honour accepted the evidence of Dr. Bruto, who interviewed Maria personally and testified to her cognitive disabilities, which was supported by other medical and non-medical evidence. She rejected the evidence of Dr. Mitchell, who had been unable to interview Maria in person.

Her Honour agreed with Dr. Bruto that the totality of Maria’s health records led to the ineluctable conclusion that when she signed the new Will, Powers of Attorney, and the real property transfer, she had at least slight dementia. Moreover, Maria’s mood issues, depression, and other significant comorbidities would have affected her cognition. In addition, it was questionable whether Maria really understood the nature and extent of her assets when Mr. Vumbaca interviewed her. She did not know whether she had an RRSP and stated that she had $80,000 in the bank when that was not the case, since Bernadette had already withdrawn significant moneys from the accounts. There were also concerns about whether Maria truly understood the effect of what she was doing, and her Honour questioned why Maria named Joseph Nazzicone as her alternative attorney, instead of her grandson, and why she left nothing to her grandchildren in her will. Consequently, Justice Gilmore accepted Dr. Bruto’s findings and held that Maria lacked testamentary capacity when she gave instructions for and executed the 2016 Will.

Justice Gilmore made the following orders:

(1) She allowed the claims in Angela’s Application.

(2) She directed that Maria’s house be listed for sale immediately.

(3) The amounts owed by Bernadette from the Passing of Accounts Application and any costs owed to Bernadette from this Application should be paid out of Bernadette’s share of the sale proceeds.

(4) The costs payable to Bernadette for preparing the accounts for the Passing of Accounts should be paid from the joint sale proceeds.

(5) She would entertain the appointment of a neutral executor, since it was unlikely that the sisters would be able to work together.

(6) She encouraged the parties to come to an agreement on costs.

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[1] 2024 ONSC 957.

[2] 2013 ONSC 4133, paras 77, 113.

[3] (1998), 164 DLR 4th 176 (Ont SC).