1. Laframboise v. Laframboise <1>
This case concerned the deceased, Mr. Laframboise, who died on July 24, 2011. Prior to his death, he prepared a document which was called "the informal Will and Last Requests of Adam Laframboise." The document contained instructions for the disposition of many of the deceased's assets. However, it only provided that his wife, Mrs. Laframboise, be left with his wedding ring and pictures. Mrs. Laframboise challenged the validity of the document, asserting that it did not meet the formal requirement of a holograph Will, as set out in the Succession Law Reform Act, R.S.O. 1990, c. S. 26, sections 6 and 7, which are:
Holograph wills
6. A testator may make a valid will wholly by his or her own handwriting and signature, without formality, and without the presence, attestation or signature of a witness.
Position of signature
7.(1) In so far as the position of the signature is concerned, a will, whether holograph or not, is valid if the signature of the testator made either by him or her or the person signing for him or her is placed at, after, following, under or beside or opposite to the end of the will so that it is apparent on the face of the will that the testator intended to give effect by the signature to the writing signed as his or her will.
Idem
(2) A will is not rendered invalid by the circumstance that,
(a) the signature does not follow or is not immediately after the end of the will;
(b) a blank space intervenes between the concluding words of the will and the signature;
(c) the signature,
(i) is placed among the words of a testimonial clause or of a clause of attestation,
(ii) follows or is after or under a clause of attestation either with or without a blank space intervening, or
(iii) follows or is after, under or beside the name of a subscribing witness;
(d) the signature is on a side, page or other portion of the paper or papers containing the will on which no clause, paragraph or disposing part of the will is written above the signature; or
(e) there appears to be sufficient space on or at the bottom of the preceding side, page or other portion of the same paper on which the will is written to contain the signature.
Idem
(3) The generality of subsection (1) is not restricted by the enumeration of circumstances set out in subsection (2), but a signature in conformity with section 4, 5 or 6 or this section does not give effect to,
(a) a disposition or direction that is underneath the signature or that follows the signature; or
(b) a disposition or direction inserted after the signature was made.
Moreover, Mrs. Laframboise challenged the validity of the document on the basis that Mr. Laframboise did not have testamentary capacity when he signed it.
The Court found that contrary to the assertions of Mrs. Laframboise, that the document created a clear intention with respect to the deceased's testamentary disposition. The Court stated: "his words are a clear indication of a deliberate, fixed and final expression of his intention."<2> The Court went on to state at paragraph 16: "the use of the word "informal" does not act to negate the clear intention contained in the balance of the document. Read as a whole, the use of this word is more consistent with the Will being informal in the sense of not being typed, witnessed and undertaken with the assistance of a lawyer."<3>
On the issue of testamentary capacity, the Court referred to the fact that there was no medical evidence adduced to establish that Mr. Laframboise was suffering from a mental disorder that would affect his testamentary capacity.
As part of the argument of incapacity, Mrs. Laframboise also asserted that the deceased was delusional in that he wrongly believed that she had been unfaithful to him. The Court on the review of evidence before it did not accept the argument of a delusion.
As to the allegation of suspicious circumstances surrounding the preparation of the testamentary document, the Court found that the propounder of his Will met the burden of establishing capacity on a balance of probabilities.
The Court concluded that the document is a valid holograph Will to be given full effect according to its terms.
On the issue of costs, the Court found that there were no reasonable grounds upon which to question the execution of the Will, or the deceased's capacity to make the Will. The Court therefore concluded there is no public policy reason to support an order that costs be paid by the estate. The Court therefore found that this case was an appropriate one such that the unsuccessful party, the Applicant, pay the costs of the Respondents. Moreover, the Court had not been advised of any offers to settle. The Court found that the partial indemnity costs claimed by the Respondents were reasonable and ordered that the costs be paid by the Applicants.
2. Zandersons Estate (Re):<4>
This matter involved an Application brought for directions to have the Applicant appointed as the Estate Trustee of her deceased brother's estate. The two Respondents were the deceased's common law spouse and the deceased's maternal grandmother.
The deceased died intestate. The Applicant would be the beneficiary of the estate together with her sister.
The Respondent common law spouse however made it clear that she intended to proceed with a Succession Law Reform Act dependant's support claim. She alleged that the Applicant was in a conflict of interest position in her request to be appointed as the Estate Trustee of the deceased's estate. The Respondent maternal grandmother, did not have a financial interest in the estate and she took the position that she would agree to be appointed as the Estate Trustee, or agree to a third party neutral to act as an Estate Trustee.
The Honourable Justice W.L. MacPherson stated at paragraph 5 as follows:
"In my reasons, I stated that it was clear that the Applicant had a financial interest in the estate, which placed her in a conflict in being able to administer the estate fairly and impartially. While the Motion for Directions initially may have been properly brought, once the conflict became obvious and alternatives were presented (either to have Luise Klotsch or a solicitor, Mr. Melville appointed as Estate Trustee) then the Motion should have resolved."<5>
It is interesting that the Court determined that the Applicant was in a conflict in being able to administer the estate. It is often the case where there are conflicting interests in the estate, that in spite of those conflicting interests, an applicant is appointed even where contested as the Estate Trustee. In this case however, the reason probably has much to do with the fact that this is an intestate estate and the deceased did not leave any wishes or direction in a Will which would otherwise have a particular person appointed in spite of what may have always been a potential conflict of interest situation.
The Court further held in this instance, that the Applicant, not having been successful on the motion, entitled the Respondents to their costs. The Court fixed the costs payable to each of the Respondents, and ordered that they be paid personally by the Applicant. The reasons given for this order were as follows:
[12] In estate matters, emotions can run high and can often cloud one's judgment when initially assessing positions that are taken. Once it became clear that the Respondent, Melissa Weiland, would be proceeding with a dependent's relief claim and that the Applicant would be in a conflict of interest position by virtue of her financial interest in the estate, the Applicant should not have maintained her position that she should be appointed as an Estate Trustee. While the Applicant might have been entitled to oppose the appointment of the Respondent, Luise Klotsch, based on a perceived bias in favour of the other Respondent, once a neutral third party had consented to act, that should have been the end of the opposition by the Applicant."<6>
Moreover, the Court stated at paragraph 14:
"The necessity of this motion being argued arose from the unreasonable position taken by the Applicant. As stated by Justice Brown in Bilek v. Salter Estate [2009] O.J. No. 2328 (ON SC)
Given the charged emotional dynamics of most pieces of estate litigation, an even greater need exists to impose the discipline of the general costs principle of "loser pays" in order to inject some modicum of reasonableness into decisions about whether to litigate estate-related disputes."<7>
3. Calderaro v. Meyer <8>
In this case the Plaintiff sought the following Orders:
(a) A declaration that the Last Will and Testament of Clark Ross Meyer, since deceased, is a valid subsisting Last Will and Testament;
(b) A declaration that she is the owner-at-law of the property known municipally as 1975 Rosefield Road, Unit #13, Pickering, Ontario under the provisions of that Will.
In the alternative:
(c) A declaration that pursuant to an instrument dated July 14, 2007, between herself and Clark Ross Meyer, as amended by an amending instrument dated July 15, 2009, that she is the owner-at-law of 1975 Rosefield Road, Unit #13, Pickering, Ontario.
(d) A declaration that the agreements of July 14, 2007 and July 15, 2007, are binding on the estate of Clark Ross Meyer.
The defendant however, being the wife of the deceased, argued that the Will and instruments relied on by the Plaintiff are invalid and have no binding authority.
In this case, prior to the deceased's death, he had been hospitalized. The deceased had filled out a Will Questionnaire, and instructed the Applicant to forward it to a solicitor to have a Last Will and Testament prepared. The deceased also met with his financial advisor to review his financial affairs.
The Will Questionnaire was faxed to the deceased's solicitor with instructions to prepare a Will in accordance with the instructions in the Will Questionnaire. The solicitor had never previously met the deceased, nor the Applicant.
During the period of hospitalization preceding death, the medical condition of the deceased deteriorated further, and involved his being moved to a critical care unit. By the date that the Plaintiff asked the solicitor to attend the hospital to have the Will executed, the deceased was unable to speak. The deceased was physically unable to sign the Will.
The drafting solicitor confirmed that the instructions were those provided by the Applicant. The drafting solicitor also testified that he relied on section 4(1)(a) of the Succession Law Reform Act, which states:
Execution
4.(1)Subject to sections 5 and 6, a Will is not valid unless,
(a)at its end it is signed by the testator or by some other person in his or her presence and by his or her direction.<9>
In this case, however, the Court found that there was no evidence that the deceased communicated instructions to a surrogate to sign his Will, and therefore that given the deceased was unable to communicate, the requirements of the Act were not met, and accordingly the Will was not duly execution.
On the question of knowledge and approval of the contents of the Will, the Court determined that the deceased was unable to speak and that there was no evidence that any communication was established with the deceased. The Court therefore found that there was no evidence of communication consisting of approval of the provisions of the Will, and therefore that the propounder of the Will did not establish that the deceased approved of the contents of the Will.
On the question of testamentary capacity, the Court found that the Applicant did not provide evidence of capacity. Moreover, the Court found that the medical evidence negated any finding that when the Will was executed, the deceased had a 'sound disposing mind'.
The Court at paragraphs 63 - 65 interestingly comments as follows, in respect of the obligations of the attending drafting solicitor:
[63] Further, as set out in the Bennett case, the attending solicitor has an obligation to take steps to determine whether the testator has a "sound disposing mind" where there is any doubt. That obligation requires the solicitor, amongst other things, to:
(a) To obtain a medical status examination of the testator.
[64] As previously reviewed, although Kaplan had expressed concerns that a medical report regarding Clark's competency be obtained, there is no evidence that such a report was sought or requested. Further, Kaplan failed to speak with Clark's doctors, and failed to review Clark's medical records in lieu of obtaining a medical report.
(b) To interview the testator if there is any question of testamentary capacity
[65] Kaplan did not interview Clark in any sufficient depth prior to or on April 21, 2009. Prior to April 21, 2009, Kaplan had never met Clark or communicated with him. His only contact with Clark was the 45 minutes required to execute the will. There is no evidence that Kaplan interviewed Clark, to inquire whether Clark understood the nature and effect of the proposed will, whether Clark recollected the nature and extent of his property, whether Clark understood the extent of what he would give under the will, and whether Clark remembered the persons he might be expected to benefit under the will."
At paragraph 67, the Court noted that the legal requirement of testamentary capacity often overlaps with the issue of knowledge. The Court found that the deceased did not have knowledge of the contents of the Will. The Court found that the evidence or lack of evidence did not establish that the deceased had testamentary capacity to make a Will.
Accordingly, the Court found that the Last Will and Testament of the deceased was invalid as a testamentary instrument, and therefore of no force and effect.
On the issue of the transfer of real property to the Applicant, the Court on the evidence reviewed, found that firstly, there was no corroborative evidence provided as required, pursuant to Section 13 of the Evidence Act, (Ontario) to secure a judgment on her testimony, since it was not supported by corroborative evidence. The Court reviewed the emails as between the deceased and Applicant with respect to the property ownership, and that paragraphs 141 and 142 stated as follows:
[141] Evidence of consideration is pivotal in binding parties to a contract.
While other features are of great relevance, consideration is the hallmark of a contract. It is consideration which functions as a major test of contract;...In order words, a promise to pay, give, etc. , is nothing more than a bare undertaking, nudum pactum, which may bind a party's conscience and affect him morally, religiously, or otherwise, but never legally...Only if that promise is made for, or supported by consideration is a "serious promise" of which the law will take official cognizance...
[142] Additionally:
...Only if that promise is made for or supported by consideration, that is something which is regarded by the law as consideration will it amount to a contractual promise and the agreement that results therefrom will be a contract.
Accordingly, the Court dismissed the action of the Applicant in its entirety.
There is no indication as yet with respect to the cost treatment of this matter.
1. Laframboise v.Laframboise, 2011 CarswellOnt 15490, 2011 ONSC 7673
2. Laframboise v.Laframboise, 2011 CarswellOnt 15490, 2011 ONSC 7673, para 15
3. Laframboise v. Laframboise, 2011 CarswellOnt 15490, 2011 ONSC 7673, para 16
4. Zandersons Estate (Re), 2011 ONSC 6755 (CanLII)
5. Zandersons Estate (Re), 2011 ONSC 6755 (CanLII), para 5
6. Zandersons Estate (Re), 2011 ONSC 6755 (CanLII), para 12
7. Zandersons Estate (Re), 2011 ONSC 6755 (CanLII), para 14
8. Calderaro v. Meyer, 2011 CarswellOnt 15508, 2011 ONSC 5395
9. Succession Law Reform Act, R.S.O. 1990, c. S. 26, section 4(1)(a)
