Sparovec v. Smith et al., 2025 ONSC 6530 (CanLII)
In estate law, undue influence occurs when a testator is unduly influenced by another party into enacting a will. The hallmarks of undue influence include circumstances of exploitation, breach or abuse of trust, manipulation, isolation, alienation, sequestering and dependency. However, often that type of conduct occurs exclusively behind closed doors. It can be difficult to determine whether conduct rises to the level of undue influence, without having the whole picture. When this happens, courts will look at a variety of surrounding factors and indicia to determine whether influencing conduct rises to the level of undue influence. Recently, in the culmination of a litigation bout lasting 8 years, Justice Gilmore of the Ontario Superior Court of Justice gave an in-depth decision on the analysis of an undue influence challenge in Sparovec v. Smith et al.[1]
Factual Background
The matter concerned the Estate of Dragica Sparovec (“Dragica” or the “Deceased”), who passed away on May 22, 2017. The application revolved around a dispute between the Applicant and son of the deceased, Valentin Sparovec (“Valentin” or the “Applicant”), and his sister Nevenka Smith (“Nevenka” or the “Respondent”) pertaining specifically to the ownership of a house originally owned by the Deceased (the “Property”).
The Deceased had lived in the Property from 1973 to her death. The Respondent had moved in to live with the Deceased in 1995 and has been residing there since. She did not pay rent though did pay for utilities and household bills.
Dragica’s first will was made in 2006 (the “2006 Will”). The 2006 Will named Valentin and Nevenka to be co-estate trustees and equal beneficiaries of the estate, with a $20,000 cash legacy to each of the Deceased’s four grandchildren. The 2006 Will also specified that the Property was to be sold “as soon as convenient” following her death, on the understanding that the sale proceeds would be needed to pay out the cash legacies. The drafting lawyer of the 2006 Will testified that the Deceased expressed to him that Nevenka was very controlling and that she didn’t want her to know about the instruction to sell the Property. In 2008, Dragica met again with the drafting lawyer to amend the 2006 Will to remove Nevenka as co-estate trustee and co-attorney for property and personal care on POAs that were also drafted in 2006. A codicil to the 2006 Will was prepared that appointed Valentin as sole Attorney and sole estate trustee.
In 2010, Nevenka drove Dragica to the same law office to make a new will (the “2010 Will”). During this occasion, Dragica wanted to put Nevenka back on as co-estate trustee and co-attorney. Additionally, she wanted to remove the provision requiring the Property be sold upon her death. A year later, in 2011, Nevenka returned to the office alone, and requested a change to the 2010 Will that would leave the Property solely to her. As Dragica was not present, no change was made.
In May of 2011, Nevenka testified that she once again returned to the same law office to enact a transfer of the Property to be held jointly between herself and Dragica. Again, as Dragica was not present, the office refused. Nevenka then made an appointment with another lawyer, Mr. Imran Khan, who assisted in enacting a transfer of the Property to be held in joint tenancy with a right of survivorship between Dragica and Nevenka.
In December of 2012, Nevenka retained Mr. Khan again to place a $50,000 mortgage on the Property in Nevenka’s name. Mr. Khan then contacted the drafting lawyer of the 2010 Will and POAs, to confirm them for title insurance purposes. The drafting lawyer of the 2010 Will and POAs expressed concerns to Mr. Khan, as the intended mortgage would seriously impact the estate plan of the Deceased. The mortgage was never registered, as Valentin became aware of what was happening and refused to sign off as co-attorney.
In July of 2011, a cognitive assessment was done in relation to Dragica and it was found that she had suffered significant cognitive decline over the last year. She was formally diagnosed with dementia in October of 2012. Throughout this time, Dragica became fully dependent on Nevenka.
In 2016, Dragica signed on as a joint debtor on a personal line of credit for $100,000 in her and Nevenka’s name. Following that, Nevenka used that line of credit to pay her personal credit card debts totalling $75,000. There was further evidence adduced to show that Nevenka withdrew $152,320 from her mother’s account between 2011 and 2017.
Valentin brought the Application following Dragica’s death in 2017 seeking a declaration that the Property was held in a resulting trust and therefore should revert back to the estate. He additionally made a claim against Nevenka for misappropriation of Dragica’s assets. Nevenka argued that her mother gifted her the property in May of 2011 by way of transfer into joint ownership, and in any event Valentin’s claims were not brought within the relevant limitation period and therefore he is statutorily barred from seeking relief.
Issues
Justice Gilmore of the Ontario Superior Court of Justice found three main issues arising from the facts:
- Were the Applicant’s claims outside of the Limitation Period?
- Should the Transfer of the Property be set aside based on Undue Influence?
- Are the Property and the alleged misappropriated funds held on a resulting trust in favour of the estate?
Issue 1: Limitation Period
Valentin commenced his application in August of 2017, one month after the Deceased’s passing. Nevenka argued that the limitation period for Valentin to challenge the transfer of the Property was a period of 2 years under the Trustee Act[2] and that clock would have begun to run at the date of discoverability, which would have been when Valentin became aware of the transfer in 2011. Valentin argued that a 10-year limitation period ought to apply under s.4 of the Real Property Limitations Act (“RPLA”).[3]
Justice Gilmore underwent a thorough review of the recent applicable case law and ultimately made a finding that the 10-year limitation period under the Real Property Limitations Act applied. In coming to her conclusion, Justice Gilmore agreed that the clock began running in December of 2012, as that was the date of discovery in relation to the transfer, but reasoned that this was not a claim against an estate, but rather a property claim against Nevenka. As such, they are claims in real property that fall squarely within the purview of s. 4 of the RPLA. Therefore, Valentin’s equitable claims were not statute barred.
Issue 2: Undue Influence
There are two types of undue influence in relation to inter vivos transfers; actual and presumed. Actual undue influence arises in situations where there has been actual and provable coercion. Those cases are rare. More often, a claim is made based on presumed undue influence. This arises where the relationship between the donor and the donee creates a rebuttable presumption that the donor was unduly influenced by the recipient to make the transfer.
Justice Gilmore found that, given the factual background of Nevenka’s and Dragica’s relationship, a presumption of undue influence was appropriate in the circumstances. In order to determine whether Nevenka could rebut that presumption, Justice Gilmore outlined four key considerations that she used in concluding.
First was the medical evidence of Dragica’s declining physical and cognitive condition. This decline led to an outright dependency on Nevenka. Of note was the fact that the alleged misappropriation and transfer of the Property occurred during the time where Dragica’s condition was significantly worsening. While Justice Gilmore did not go as far as to make a finding with respect to the Deceased’s capacity, she did note that her diminished cognitive ability was a factor to consider with respect to undue influence.
The second consideration that Justice Gilmore noted was the Deceased’s level of isolation. Dragica had no friends in Canada, could not drive, and very rarely saw anyone outside of Nevenka. Due to a strained relationship between Valentin and Nevenka, the Deceased rarely saw Valentin, as she lived with Nevenka. This isolation increased substantially as Dragica’s cognitive decline worsened.
Thirdly, Justice Gilmore found that there was credible evidence to show that Dragica had some level of fear toward Nevenka. This level of fear and trepidation that Dragica had towards Nevenka was illustrative to the Court of the dynamic and power imbalance between the two of them. This too pointed towards presumption of undue influence.
Finally, the last consideration was the fact that the transfer was inconsistent with Dragica’s previous estate planning. The Property was Dragica’s only real major asset. As such, the sale of the Property would have been necessary to satisfy the $80,000 in legacies that she had left to her grandchildren. The result of the transfer of the Property was that Dragica’s estate was depleted to almost nothing. Therefore, the Court found that it was clear that Dragica’s testamentary intentions were thwarted by Nevenka when the Property was transferred.
Therefore, the Court found that Nevenka was unable to rebut the presumption of undue influence with respect to the Property transfer as Dragica was vulnerable and dependent on Nevenka when the transfer took place and consequently could not resist Nevenka’s influence.
Issue 3: Are the Property and misappropriated funds held on a resulting trust?
The Supreme Court stated in Pecore v. Pecore[4], that gratuitous transfers between a parent and an adult child are subject to the presumption of resulting trust in favour of the deceased parent’s estate. This presumption is rebuttable, and only a general rule that applies to gratuitous transfers.[5] In this case, there was no dispute that the transfers were made in the absence of consideration, so the issue becomes whether the transfers were intended to be made as outright gifts by the Deceased.
Justice Gilmore found that there was no evidence of clear intention for the transfers to be gifts. Nevenka hid some of the transfers from Valentin while the Deceased was in a vulnerable and dependent position. Furthermore, the Court found that much of the impugned transactions made were done so without evidence that Dragica knew about it. Justice Gilmore found based on the evidence before the court that the impugned transactions were made solely for the benefit of Nevenka.
As there was no evidence of intention to make an outright gift, and the impugned transactions did not benefit Dragica in any way, Justice Gilmore found that the Property and the misappropriated funds were in fact held on a resulting trust for the Estate. As such, Nevenka was ordered to transfer the Property to the estate and additionally pay back half of the funds that were alleged to have been misappropriated to the Deceased’s estate as well.
Final Thoughts
This decision is a useful case study on how courts will approach the analysis when there is suspicion of undue influence. As shown, a successful claim for undue influence demands a high level of influence and vulnerability, which can be difficult to prove. Justice Gilmore’s decision demonstrates yet again the court’s insistence on following testamentary intention. In this case, there was sufficient objective evidence to show that the Deceased had been unduly influenced. However, it is all too common an occurrence where such objective evidence is not present, especially in situations where aging, vulnerable people are isolated in their homes for the majority of their days. As such, it can be critical to ensure that we are checking in on our loved ones as often as possible, and not to wait until the harm has already been done.
—
[1] Sparovec v. Smith et al., 2025 ONSC 6530
[2] Trustee Act, R.S.O. 1990, c. T.23.
[3] Real Property Limitations Act, R.S.O. 1990 c. L. 15 at s.4
[4] Pecore v. Pecore, 2007 SCC 17, 1 S.C.R. 795 at para 36
[5] Ibid at para 24
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Written by: Mark Polese
Posted on: January 27, 2026
Categories: Commentary
Sparovec v. Smith et al., 2025 ONSC 6530 (CanLII)
In estate law, undue influence occurs when a testator is unduly influenced by another party into enacting a will. The hallmarks of undue influence include circumstances of exploitation, breach or abuse of trust, manipulation, isolation, alienation, sequestering and dependency. However, often that type of conduct occurs exclusively behind closed doors. It can be difficult to determine whether conduct rises to the level of undue influence, without having the whole picture. When this happens, courts will look at a variety of surrounding factors and indicia to determine whether influencing conduct rises to the level of undue influence. Recently, in the culmination of a litigation bout lasting 8 years, Justice Gilmore of the Ontario Superior Court of Justice gave an in-depth decision on the analysis of an undue influence challenge in Sparovec v. Smith et al.[1]
Factual Background
The matter concerned the Estate of Dragica Sparovec (“Dragica” or the “Deceased”), who passed away on May 22, 2017. The application revolved around a dispute between the Applicant and son of the deceased, Valentin Sparovec (“Valentin” or the “Applicant”), and his sister Nevenka Smith (“Nevenka” or the “Respondent”) pertaining specifically to the ownership of a house originally owned by the Deceased (the “Property”).
The Deceased had lived in the Property from 1973 to her death. The Respondent had moved in to live with the Deceased in 1995 and has been residing there since. She did not pay rent though did pay for utilities and household bills.
Dragica’s first will was made in 2006 (the “2006 Will”). The 2006 Will named Valentin and Nevenka to be co-estate trustees and equal beneficiaries of the estate, with a $20,000 cash legacy to each of the Deceased’s four grandchildren. The 2006 Will also specified that the Property was to be sold “as soon as convenient” following her death, on the understanding that the sale proceeds would be needed to pay out the cash legacies. The drafting lawyer of the 2006 Will testified that the Deceased expressed to him that Nevenka was very controlling and that she didn’t want her to know about the instruction to sell the Property. In 2008, Dragica met again with the drafting lawyer to amend the 2006 Will to remove Nevenka as co-estate trustee and co-attorney for property and personal care on POAs that were also drafted in 2006. A codicil to the 2006 Will was prepared that appointed Valentin as sole Attorney and sole estate trustee.
In 2010, Nevenka drove Dragica to the same law office to make a new will (the “2010 Will”). During this occasion, Dragica wanted to put Nevenka back on as co-estate trustee and co-attorney. Additionally, she wanted to remove the provision requiring the Property be sold upon her death. A year later, in 2011, Nevenka returned to the office alone, and requested a change to the 2010 Will that would leave the Property solely to her. As Dragica was not present, no change was made.
In May of 2011, Nevenka testified that she once again returned to the same law office to enact a transfer of the Property to be held jointly between herself and Dragica. Again, as Dragica was not present, the office refused. Nevenka then made an appointment with another lawyer, Mr. Imran Khan, who assisted in enacting a transfer of the Property to be held in joint tenancy with a right of survivorship between Dragica and Nevenka.
In December of 2012, Nevenka retained Mr. Khan again to place a $50,000 mortgage on the Property in Nevenka’s name. Mr. Khan then contacted the drafting lawyer of the 2010 Will and POAs, to confirm them for title insurance purposes. The drafting lawyer of the 2010 Will and POAs expressed concerns to Mr. Khan, as the intended mortgage would seriously impact the estate plan of the Deceased. The mortgage was never registered, as Valentin became aware of what was happening and refused to sign off as co-attorney.
In July of 2011, a cognitive assessment was done in relation to Dragica and it was found that she had suffered significant cognitive decline over the last year. She was formally diagnosed with dementia in October of 2012. Throughout this time, Dragica became fully dependent on Nevenka.
In 2016, Dragica signed on as a joint debtor on a personal line of credit for $100,000 in her and Nevenka’s name. Following that, Nevenka used that line of credit to pay her personal credit card debts totalling $75,000. There was further evidence adduced to show that Nevenka withdrew $152,320 from her mother’s account between 2011 and 2017.
Valentin brought the Application following Dragica’s death in 2017 seeking a declaration that the Property was held in a resulting trust and therefore should revert back to the estate. He additionally made a claim against Nevenka for misappropriation of Dragica’s assets. Nevenka argued that her mother gifted her the property in May of 2011 by way of transfer into joint ownership, and in any event Valentin’s claims were not brought within the relevant limitation period and therefore he is statutorily barred from seeking relief.
Issues
Justice Gilmore of the Ontario Superior Court of Justice found three main issues arising from the facts:
Issue 1: Limitation Period
Valentin commenced his application in August of 2017, one month after the Deceased’s passing. Nevenka argued that the limitation period for Valentin to challenge the transfer of the Property was a period of 2 years under the Trustee Act[2] and that clock would have begun to run at the date of discoverability, which would have been when Valentin became aware of the transfer in 2011. Valentin argued that a 10-year limitation period ought to apply under s.4 of the Real Property Limitations Act (“RPLA”).[3]
Justice Gilmore underwent a thorough review of the recent applicable case law and ultimately made a finding that the 10-year limitation period under the Real Property Limitations Act applied. In coming to her conclusion, Justice Gilmore agreed that the clock began running in December of 2012, as that was the date of discovery in relation to the transfer, but reasoned that this was not a claim against an estate, but rather a property claim against Nevenka. As such, they are claims in real property that fall squarely within the purview of s. 4 of the RPLA. Therefore, Valentin’s equitable claims were not statute barred.
Issue 2: Undue Influence
There are two types of undue influence in relation to inter vivos transfers; actual and presumed. Actual undue influence arises in situations where there has been actual and provable coercion. Those cases are rare. More often, a claim is made based on presumed undue influence. This arises where the relationship between the donor and the donee creates a rebuttable presumption that the donor was unduly influenced by the recipient to make the transfer.
Justice Gilmore found that, given the factual background of Nevenka’s and Dragica’s relationship, a presumption of undue influence was appropriate in the circumstances. In order to determine whether Nevenka could rebut that presumption, Justice Gilmore outlined four key considerations that she used in concluding.
First was the medical evidence of Dragica’s declining physical and cognitive condition. This decline led to an outright dependency on Nevenka. Of note was the fact that the alleged misappropriation and transfer of the Property occurred during the time where Dragica’s condition was significantly worsening. While Justice Gilmore did not go as far as to make a finding with respect to the Deceased’s capacity, she did note that her diminished cognitive ability was a factor to consider with respect to undue influence.
The second consideration that Justice Gilmore noted was the Deceased’s level of isolation. Dragica had no friends in Canada, could not drive, and very rarely saw anyone outside of Nevenka. Due to a strained relationship between Valentin and Nevenka, the Deceased rarely saw Valentin, as she lived with Nevenka. This isolation increased substantially as Dragica’s cognitive decline worsened.
Thirdly, Justice Gilmore found that there was credible evidence to show that Dragica had some level of fear toward Nevenka. This level of fear and trepidation that Dragica had towards Nevenka was illustrative to the Court of the dynamic and power imbalance between the two of them. This too pointed towards presumption of undue influence.
Finally, the last consideration was the fact that the transfer was inconsistent with Dragica’s previous estate planning. The Property was Dragica’s only real major asset. As such, the sale of the Property would have been necessary to satisfy the $80,000 in legacies that she had left to her grandchildren. The result of the transfer of the Property was that Dragica’s estate was depleted to almost nothing. Therefore, the Court found that it was clear that Dragica’s testamentary intentions were thwarted by Nevenka when the Property was transferred.
Therefore, the Court found that Nevenka was unable to rebut the presumption of undue influence with respect to the Property transfer as Dragica was vulnerable and dependent on Nevenka when the transfer took place and consequently could not resist Nevenka’s influence.
Issue 3: Are the Property and misappropriated funds held on a resulting trust?
The Supreme Court stated in Pecore v. Pecore[4], that gratuitous transfers between a parent and an adult child are subject to the presumption of resulting trust in favour of the deceased parent’s estate. This presumption is rebuttable, and only a general rule that applies to gratuitous transfers.[5] In this case, there was no dispute that the transfers were made in the absence of consideration, so the issue becomes whether the transfers were intended to be made as outright gifts by the Deceased.
Justice Gilmore found that there was no evidence of clear intention for the transfers to be gifts. Nevenka hid some of the transfers from Valentin while the Deceased was in a vulnerable and dependent position. Furthermore, the Court found that much of the impugned transactions made were done so without evidence that Dragica knew about it. Justice Gilmore found based on the evidence before the court that the impugned transactions were made solely for the benefit of Nevenka.
As there was no evidence of intention to make an outright gift, and the impugned transactions did not benefit Dragica in any way, Justice Gilmore found that the Property and the misappropriated funds were in fact held on a resulting trust for the Estate. As such, Nevenka was ordered to transfer the Property to the estate and additionally pay back half of the funds that were alleged to have been misappropriated to the Deceased’s estate as well.
Final Thoughts
This decision is a useful case study on how courts will approach the analysis when there is suspicion of undue influence. As shown, a successful claim for undue influence demands a high level of influence and vulnerability, which can be difficult to prove. Justice Gilmore’s decision demonstrates yet again the court’s insistence on following testamentary intention. In this case, there was sufficient objective evidence to show that the Deceased had been unduly influenced. However, it is all too common an occurrence where such objective evidence is not present, especially in situations where aging, vulnerable people are isolated in their homes for the majority of their days. As such, it can be critical to ensure that we are checking in on our loved ones as often as possible, and not to wait until the harm has already been done.
—
[1] Sparovec v. Smith et al., 2025 ONSC 6530
[2] Trustee Act, R.S.O. 1990, c. T.23.
[3] Real Property Limitations Act, R.S.O. 1990 c. L. 15 at s.4
[4] Pecore v. Pecore, 2007 SCC 17, 1 S.C.R. 795 at para 36
[5] Ibid at para 24
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