1. Introduction

Having just written a blog on Graham v McNally Estate and Blais,^[1] a case that concerned the issue of the evidentiary threshold applicants must meet when they attack a will, it seems appropriate to write another blog on the more recent, but similar case, Bobby Gian and Vasiliki (Bessie) Giannopoulos,^[2] which addresses the same issue.

2. Facts

The testator, Fotios Giannopoulos, died in October 2022, survived by four children, Nick Giannopoulos, Bobby Giann, Bessie Giannopoulos, and Domniki Sakellaris. He had two major assets, a house in Toronto, and his dry-cleaning business and premises on Danforth Avenue. In his prior will of 2016, the testator directed that both properties be divided equally among his four children. However, he made a new will on 1 April 2021 in which he directed that his house be divided equally among Bobby, Bessie, Nick, and the children of Domniki, but left his business assets only to Nick. He named a family friend, Panagiota Papastafanou (‘Yiota’) as substitute beneficiary of the business assets if Nick predeceased his father. On 9 April 2021 the testator transferred the title to the Danforth property to himself and Nick as joint tenants.

Bobbie and Bessie (the appellants) applied for a declaration that their father lacked testamentary capacity or was unduly influenced by Nick and Yiota (the respondents) as of 1 September 2018, including when he made the 2021 Will and when he transferred the business assets into joint tenancy. They sought an order declaring he 2016 Will to be the testator’s valid last Will. The appellants then brought a motion for directions that would permit them to access the testator’s financial records, his lawyer’s files, and his medical records under r. 75.6 of the Rules of Civil Procedure.^[3] The application judge, Frederick L Myers J, dismissed the application and motion, holding that the applicants failed to meet the evidentiary threshold that would permit them to be granted access to the documents. In reaching his decision, his Honour applied the seminal case, Neuberger v York,^[4] which requires that a moving party under r. 75.06 must ‘adduce, or point to, some evidence which, if accepted would call into question the validity of the testamentary instrument that is being propounded’. In this ‘preliminary vetting process’ the application judge does not assess the truth of the evidence, but only assesses ‘whether the evidence, if accepted, would support the claim advanced’.

The appellants appealed and argued that the application judge:

1. made palpable and overriding errors in relation to the evidence about the testator’s testamentary capacity;
2. made palpable and overriding errors in relation to the evidence that undue influence was exercised over the testator;
3. applied an uneven standard in his treatment of the evidence; and
4. failed to provide sufficient reasons for dismissing the claim to set aside the Danforth transfer.

3. Analysis and Judgment

The court dismissed the appeal. It held that the application judge did not err in his analysis and his findings, and that it was open to him to find that the appellants’ evidence was insufficient to call the validity of the 2021 will or the Danforth transfer into question. It held further that in any event the respondents had successfully answered any challenge raised by the appellants.

Evidentiary background. The court noted that the testator was predeceased by his wife in 2016, that this took a large toll on him, and that he became depressed and unmotivated in running his business. Nick took over most of the testator’s care and worked in the dry-cleaning business. Bobby and Domniki were estranged from the testator. Bessie maintained a positive relationship with her father but lived in Florida with her family.

Yiota also supported the testator as he grieved the loss of his wife. She moved into his home during the Covid-19 pandemic to assist with his care, which allowed him to remain at home. At the end of 2018 the testator retired and went to Florida to spend time with Bessie and her family. While there, he suffered a couple of falls and a small stroke. However, the falls were caused by a potassium shortage that was cured by medication. He returned to Toronto in 2019 and was cared for in hospital. A geriatric assessment suggested that he had ‘an element of Alzheimer’s dementia’ and possibly a major depressive disorder. However, after he enrolled in a day program at the hospital, his mental state improved greatly. When he made his 2021 Will, he left a note with his lawyer in which he said that he left Domniki’s share to her children because he feared that she and her husband would squander his property and because Domniki had written him off as her father. The note also said that he left the Danforth property solely to Nick because he stood by him and cared for him.

Standard of Review

The court noted, as one would expect, that Justice Myers’ assessment of the evidence and findings of fact were owed considerable appellate deference, unless there was an error in principle.

Capacity

The court found that there were no palpable and overriding errors in Justice Myers’s findings. The testator was not in a downward cognitive spiral as alleged by the appellants. Instead, he suffered only from two discrete episodes of ill health in 2019 and 2021, which affected his capacity. However, as found by Justice Myers, those episodes had no bearing on the testator’s capacity when he executed the 2021 Will. Medical records at that time showed that his mental state had improved markedly and that he suffered no episodes of confusion. Thus, the appellants failed to meet the requisite evidentiary threshold on this issue.

Undue Influence

The appellants argued that the testator was isolated and dependent on the respondents when he grieved the loss of his wife and was dealing with family conflict. In their view, that explained why he benefited only the respondents. Justice Myers concluded that the appellants presented nothing more than ‘bald assertions of wrongdoing’ on the part of the respondents and that the evidence adduced by them was fully answered by the respondents. Among other things, the gerontologist who attended the testator noted that he frequently expressed his gratitude for the assistance given him by Nick and Yiota. The gerontologist did not note any concerns of abuse.

Uneven Treatment of the Evidence

The appellants argued that Justice Myers unfairly allowed criticisms of their motion counsel to impact his assessment of their credibility and that this resulted in his applying uneven scrutiny to their evidence. The court noted that Justice Myers recognized that the appellants might have little transparency into an abusive relationship if the gatekeeping caregiver covers his or her tracks. However, he concluded that the appellants’ allegations were not supported by the facts they presented, and that their suspicions were fully answered by the respondents. The court found that Justice Myers did not allow his criticism of the appellants’ motion counsel to cloud his credibility analysis and assessment of the evidence. Hence, he did not commit a palpable and overriding error, and therefore there was no basis for the court to interfere with Justice Myer’s assessment of the evidence.

Danforth Transfer

The court held that Justice Myer’s reasons for dismissing the challenge against the Danforth transfer were sufficient. That transfer was part of the testator’s estate plan and since it took place at almost the same time as the execution of the 2021 Will, the validity of both was one and the same issue. Hence, Justice Myers did not have to conduct a separate analysis of the validity of the transfer. His reasons for rejecting the concerns about the testator’s capacity and alleged undue influence regarding the Will were sufficient to dispose of the identical issues regarding the Danforth transfer.

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[1] 2024 ONSC 4006, a decision of Justice Sylvia Corthorn.

[2] 2024 ONCA 928.

[3] RRO 1990, Reg 194.

[4] 2016 ONCA 191, para 89.