Case Name:

Travica v. Mailloux

RE: Mary Travica, and

Lawrence Robert Mailloux, John Greenaway, et al.

[2008] O.J. No. 3880

43 E.T.R. (3d) 210

2008 CarswellOnt 5834

170 A.C.W.S. (3d) 434

Court File No. 06-CV-6950

Ontario Superior Court of Justice

W.U. Tausendfreund J.

Heard: September 15, 2008.

Judgment: September 18, 2008.

(24 paras.)

Civil litigation -- Civil procedure -- Judgments and orders -- Summary judgments -- No triable issue -- Respondents moved successfully for summary judgment of issues raised in one paragraph of a prior court order -- There was no evidence of undue influence, and the deceased's will and codicil were declared duly executed, and the respondents restored as estate trustees -- The simple fact that the respondents were the deceased's lawyer, doctor and accountant, respectively, did not amount to proof of undue influence.

Wills, estates and trusts law -- Wills -- Undue influence, fraud and mistake -- Undue influence -- Suspicious circumstances -- Burden of proof -- Onus on party alleging undue influence -- Respondents moved successfully for summary judgment of issues raised in one paragraph of a prior court order -- There was no evidence of undue influence, and the deceased's will and codicil were declared duly executed, and the respondents restored as estate trustees -- The simple fact that the respondents were the deceased's lawyer, doctor and accountant, respectively, did not amount to proof of undue influence.

Motion by respondents Mailloux, Greenaway and Moser seeking summary judgment on issues raised in para. 3 of an Oct. 10, 2006 court order. In that paragraph, the court directed a trial of the issues considering the validity of a series of wills executed by the now-deceased, an in particular, the issue of the testamentary capacity of the deceased to execute the March 12, 2001 will. The deceased died at 85 years of age in 2004. The applicant alleged the impugned will was invalid owing to the presumption of undue influence arising from the nature of the relationship between the deceased and the respondents, her lawyer, doctor and accountant, respectively.

HELD: Summary judgment issued declaring the will and codicil duly executed and not procured through undue influence. The respondents were restored as estate trustees. Although it would have been more appropriate for Mailloux to not only advise that the deceased obtain independent legal advice but to decline to take such instructions that she would not, as he was a beneficiary, the court was satisfied that it was not fatal to the position of the estate trustees who were propounding the validity of the will. It was admitted that there was no evidence that the deceased lacked core testamentary capacity, and she was presumed to have it, there was no evidence that her sight was impaired or that she was illiterate, and she signed each of the impugned wills in the presence of witnesses who signed in her presence and in the presence of each other. There was an absence of suspicious circumstances. The burden of proof with respect to undue influence remained with the applicant as the person attacking the will. All the issues that would have been raised at a trial had been addressed. The estate would pay the costs of all parties on a substantial indemnity basis, as the deceased's actions in failing to obtain independent legal advice as advised were in part responsible for the motion to resolve these issues.

Statutes, Regulations and Rules Cited:

Ontario Rules of Civil Procedure, Rule 20, Rule 75.03

Counsel:

James K. Ball, for the Applicant.

Raymond G. Colautti, Anita Landry, for the Respondents.

ENDORSEMENT

1 W.U. TAUSENDFREUND J.:-- This is a motion for summary judgment brought by the respondents, Lawrence Robert Mailloux, John Greenaway and Vincent W. Moser, on the issues raised in paragraph 3 of the order of Justice Gates of October 10, 2006.

2 The applicant brought a challenge to the validity of a series of wills executed by the now deceased, Liisa Maria Chappus ("Ms. Chappus") during the period 1998 to 2001.

3 Paragraph 3 of the order of Justice Gates directing a trial of the issues considering the validity of the subject wills and in reference specifically to the last will signed by Ms. Chappus provides:

Para. 3

This court orders that the issues to be tried shall be:

(a) With respect what is propounded as the last will and testament of the deceased bearing date of March 12, 2001, as varied by codicil dated September 17, 2001 (as to all, "Impugned Will No. 1"), all as attached to that certain certificate of appointment issued out of this court under file number 2004-26316,

(i) Lawrence Robert Mailloux, John Greenaway, Vincent W. Moser together with any of the respondents who appear seek to uphold that will (as to all, "Propounders"), affirm and Mary Travica, together with any of the respondents appearing who seek to attack that will (as to all, "Challenges"), denies that the deceased had testamentary capacity at the time of the execution of that will;

(ii) The Propounders affirm and the Challengers deny that the deceased had requisite knowledge and approved of the contents of that impugned will;

(iii) The Propounders affirm and the Challengers deny that impugned will was duly executed;

(iv) The Challengers affirm and the Propounders deny that will was procured through undue influence;

4 Ms. Chappus died at age 85 on April 30, 2004, leaving no close relatives. She had no children of her own and her only other close relative was her brother, who had predeceased her for many years. She had six step-children, who were children of her late husband. She had made a provision under the will leaving them a legacy of $60,000 to be divided equally among them.

5 Ms. Chappus had made a previous will in 1986 prepared by her former solicitor. In that will she named the applicant as one of the Estate Trustees and left a bequest to her of $100,000.

6 In 1998, Ms. Chappus began to consult a solicitor, Lawrence Robert Mailloux ("Mailloux") about drafting a new will. In fact he prepared four wills for her and a codicil, the dates of which are:

(a) a will executed October 22, 1998;

(b) a will executed February 14, 2000;

(d) a will executed March 21, 2001;

(e) a codicil executed September 17, 2001.

7 The file, produced by Mailloux, indicates frequent and regular contacts between him and Ms. Chappus on various will instructions for more than three years between 1998 and 2001. It is clear from review of these documents that Ms. Chappus was a person who knew her mind, and was aware of her decision and the assets she proposed to leave as a bequest to a variety of beneficiaries. These documents also speak to a warm and ongoing professional relationship between lawyer and client. Mailloux died unexpectedly and shortly after having executed his affidavit in this application and before the applicant was in a position to cross-examine him. Both sides, in their submissions, made reference to the Mailloux affidavit. Based on the material disclosed in the record, I am satisfied Mailloux's evidence was reliable. Relying on R. v. Khelawon, [2006] 2 S.C.R. 787 and based on necessity and reliability, I accept the Mailloux affidavit as part of the record which I have considered.

8 A number of care givers and friends provided evidence on the issue of the testamentary capacity of Ms. Chappus:

(i) Margo Brown, as a personal support worker, provided services to her. She described her as mentally alert. She also stated that Dr. Greenaway came to see Ms. Chappus at least once per week on a house call and that Ms. Chappus considered him to be a son she never had;

(ii) Rosemary Lucas described her as intelligent, stubborn, feisty, set in her ways and of sound mind;

(iii) Susan Bezair was another care giver. She described her as competent with regards to her instructions and that she was mentally alert;

(iv) Dr. Timothy O'Callahan saw Ms. Chappus on several occasions in the absence of Dr. Greenaway. He described her to have a normal, cognitive status in 2002 when he saw her;

(v) Halina Karpala worked as a nursing/homemaking supervisor. She described Ms. Chappus to be of sound mind and a person who knew what and how she wanted things done.

9 Dr. Greenaway was the personal physician to Ms. Chappus as of 1990. I accept his uncontradicted evidence that he never asked her to leave him any part of her estate and that he at no time offered any inducements or issued any threats to her in an attempt to coerce her regarding the terms of her will.

10 Pursuant to a Certificate of Appointment of Estate Trustees with a Will issued on June 18, 2004, Dr. Greenaway, Mailloux and Vincent W. Moser, an accountant who had acted for Ms. Chappus for many years, were named as the Estate Trustees under her Last Will and Testament dated March 12, 2001, together with a codicil to that will dated September 17, 2001. These same parties had also been named Estate Trustees under her wills of October 22, 1998, February 14, 2000 and October 30, 2000.

11 The value of her estate was not insubstantial. It totalled about $2,000,000. Her bequests included a variety of charities, a municipality and a series of personal dispositions, including bequests to each of the three Estate Trustees. She left of bequest to Dr. Greenaway of $1,000,000, the sum of $200,000 to Mailloux and $100,000 to her accountant Vincent Moser. As indicated, the applicant was left $10,000.

12 At the time of taking the will instructions in 2001 and on other previous occasions when Ms. Chappus indicated to Mailloux that she intended to include him as a beneficiary, he advised her to obtain independent legal advice. She declined to so. Mailloux prepared each of the four wills and the codicil in question. Although I find that it would have been more appropriate for Mailloux to not only advise that she obtain independent legal advice, but to decline to take such instructions, I am satisfied that under these circumstances, it is not fatal to the position of the named Estate Trustees who are propounding the validity of the will.

13 Dr. Greenaway also accessed personal funds for the benefit of Ms. Chappus during the latter stages of her life on the strength of a power of attorney she had given him. I accept his evidence that he had a conversation with her to advise her that she should move certain of her savings in the amount of $850,000, which she had invested in a GIC, to other investment vehicles which would provide her with a better return than the conservative interest rate of 4% which she was then receiving. She was a very conservative investor and declined to do so. Dr. Greenaway indicated to her that he would guarantee her the same return of 4%, collapse the GIC and invest it in what he believed would generate a more lucrative return, all for the benefit of Ms. Chappus. The applicant points to this action by Dr. Greenaway to suggest that various factual and legal issues surrounding this arrangement may give rise to the conclusion that Dr. Greenaway had acted out of self-interest. I do not accept that proposition. He had disclosed this issue during the course of the application to pass the accounts of the estate. He made full disclosure. In the event that the investment he had made for her should have generated a negative return, such a potential loss to the other beneficiaries could have been offset against his bequest.

14 The applicant also points to an occasion where Dr. Greenaway received $100,000 in cash from Margo Brown, one of the care givers to Ms. Chappus. Ms. Brown told Dr. Greenaway that she had received this money from Ms. Chappus in cash over a period of time. Ms. Brown did not spend it, but had set it aside. She did not feel comfortable in making use of these funds in cash and requested that Dr. Greenaway, on the strength of his power of attorney, give her a cheque in return for the cash. This he did and then deposited the cash for the benefit of Ms. Chappus. He had Margo Brown sign a note acknowledging receipt of a cheque of $100,000 at the direction of Ms. Chappus and in recognition of the care and companionship which Margo Brown had provided to her. The applicant suggests that these actions by Dr. Greenaway are subject to more than one interpretation and for that reason it should be tested by way of cross-examination at a hearing. I do not agree. In fact, Dr. Greenaway was cross-examined on that and other issues. There is nothing in the evidence to suggest any ambiguity in Dr. Greenaway's actions, other than to assist Ms. Chappus and Margo Brown.

15 The applicant alleges that the impugned will is invalid owing to the presumption of undue influence arising from the nature of the relationship between the deceased and the respondents, Mailloux, Greenaway and Moser, her lawyer, doctor and accountant respectively. The only evidence to support this statement is the allegation in paragraph 5 in the affidavit of Joyce Lamoreux which states:

In respect to all of the Mailloux drafted wills, it appears that the estate trustee - beneficiaries, Lawrence Robert Mailloux, John Greenaway and Vincent W. Moser, respectively were, in relation to the deceased, her lawyer, doctor and accountant. It appears that each, in common with the other and in relation to the deceased, was a person who occupied a position of a confidential or fiduciary nature.

16 The principles of law which apply generally to will challenges are set out by the Supreme Court of Canada in Vout v. Hay, [1995] 2 S.C.R. 876. The Supreme Court held that:

Although the propounder of the will has the legal burden with respect to due execution, knowledge and approval, and testamentary capacity, the propounder is aided by a rebuttable presumption. 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 testamentary capacity.

17 I note that with respect to Ms. Chappus, it is admitted that:

(a) there is no evidence that she lacked core testamentary capacity and that she is presumed to have had it;

(b) there is no evidence that her sight was impaired or that she was illiterate; and

(c) she signed each of the impugned wills in the presence of witnesses who signed in her presence and in the presence of each other.

18 The applicant suggests that suspicious circumstances surround the preparation and signing of this will based simply on the fact that the three named trustees are the lawyer, doctor and accountant of the deceased. I disagree. I rely on the comments of Cullity J. in Scott v. Cousins [2001] O.J. No. 19 at para. 113:

The presumptions in favour of undue influence that arise out of certain family relationships and that are applied to various kinds of transactions inter vivos play no part in the law of wills. The persons against whom the presumptions arise in such transactions are typically those that a testator might naturally wish to share in the estate. Such persons are entitled to press what they perceive to be their moral claims. The following comment in Williams and Mortimer, Executors, Administrators and Probate, (17th ed., 1993), at page 184 ... is, I believe, an accurate statement:

Thus undue influence is not bad influence but coercion. Persuasion and advice do not amount to undue influence so long as the free volition of the testator to accept or reject them is not invaded ... The testator may be led but not driven and his will must be the offspring of his own volition, not the record of someone else's. There is no undue influence unless the testator if he could speak his wishes would say "this is not my wish but I must do it."

19 In my view, there is an absence of suspicious circumstances. The burden of proof with respect to undue influence remains with the applicant, as the person attacking the will. I turn again to Vout v. Hay, supra, at paragraph 29 where the Supreme Court said:

... If it is established that the testator knew and appreciated what he was doing, in many cases there is little room for a finding that the testator was coerced.

... an allegation of undue influence. ... is a burden assumed by those who are attacking the will and can only be discharged by proof of the existence of an influence acting upon the mind of the testator of the kind described by Viscount Haldane in Craig v. Lamoureux ... [1920] A.C. 349 at p. 357 where he says:

Undue influence, in order to render a will void, must be an influence which can justly be described by a person looking at the matter judicially to have caused the execution of a paper pretending to express a testator's mind, but which really does not express his mind, but something else which he did not really mean.

20 Accordingly, I find that:

(a) Ms. Chappus had, at all relevant and material times, the requisite testamentary capacity, including at the time of the execution of her March 12, 2001 Last Will and Testament together with her codicil to that will of September 17, 2001;

(b) she had knowledge of and approved of the contents of the said will and codicil;

(d) the applicant has not shown sufficient evidence to discharge her evidentiary burden which rests upon her to prove undue influence.

21 The applicant advances the position that a combination of Rule 20 and 75.03 of the Rules of Civil Procedure do not permit for a summary judgment in this matter. For reasons that follow, I do not agree. In my view, the order for directions setting out the issues are no less explicit than any pleadings would be. Based on the findings which I have already made, I am satisfied that all of the issues which would have been raised at a trial have been addressed.

22 I note this comment by Cullity J. in Ettore v. Ettore Estate, [2004] O.J. No. 3646 at para. 40:

The provision of orders for directions carries over into the Rules of Civil Procedure the former surrogate court practice under which the court had a wide discretion to determine the appropriate procedures in contested wills cases. ... there appears to be no reason to infer that the discretionary control of the court with respect to the appropriate procedures in contested will matters is less extensive than it was previously. It is, also, clear from the words of rules 75.06(3)(d) that the discretion extends to determining summary procedures, if any, that may be appropriate. This, I believe, must mean that the hallowed practice of requiring a contested will to be proved in solemn form, with viva voce evidence, is no longer immutable.

23 Accordingly, summary judgment will go:

(a) with respect to what is propounded as the Last Will and Testament of the deceased, Liisa Marie Chappus, dated May 12, 2001, as varied by her codicil dated September 17, 2001,

(i) declaring that the deceased, Liisa Marie Chappus, had testamentary capacity at the time of the execution of the said will;

(ii) declaring that the deceased, Liisa Marie Chappus, had the requisite knowledge and approved of the contents of the said will and codicil;

(iii) declaring that the said will and codicil were duly executed; and

(iv) declaring that the said will and codicil were not procured through undue influence.

(b) restoring the Certificate of Appointment of the Estate of Lawrence Robert Mailloux, once an order to continue has been issued and filed and, in any event, of John Greenaway and Vincent W. Moser, as Estate Trustees with a Will of the Estate of Liisa Marie Chappus, deceased.

24 Based on my finding that Liisa Marie Chappus had been advised by Mailloux to obtain legal advice but had declined, I find that her actions are in part responsible for this motion to resolve the issues raised herein. Accordingly, I order that the estate will pay the costs of all parties on a substantial indemnity basis.

W.U. TAUSENDFREUND J.

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