Décision

O'Neil c. Wallace O'Neil (Succession de)

2010 QCCS 2768

 

SUPerior JR1353    COURt
CANADA
PROVINCE of QUÉBEC
DISTRICT of			MONTREAL
N°:		500-17-034932-072
DATE :	June 17, 2010
_________________________________________________________________________
presiding:   the HONORABLE BRIAN RIORDAN, J.S.C.
_________________________________________________________________________
DANNY O'NEIL
Plaintiff
v.
SUCCESSION OF EVELYN WALLACE O'NEIL Represented by its liquidators JOHN O'NEIL -and- CHARLES O'NEIL   -and-   JOHN O'NEIL -and- KATHERINE FITZ O'NEIL
Defendants   -and-   MAUREEN O'NEIL -and- NOTARY GIUSEPPE MOLINARO
Mis-en-cause
_________________________________________________________________________
judgment
_________________________________________________________________________

It might not always be true that "where there's a will, there's a fight", but where there are two wills, the chance of a dispute is more than double.

THE PROCEEDINGS

[1]              In November 1998, a year after her husband's death, Evelyn[1] made her will (the "1998 Will").  In it, she left equal bequests to each of her three children: Danny, the Plaintiff here, John, one of the Defendants, and Maureen, one of the Intervenants. 

[2]              On May 11, 2004, seven months before her death on December 16^th and midway through a two-month hospital stay caused by "acute confusion", she made a new will (the "New Will": Exhibit P-3)[2].  It favours John and his wife, Kathie, also a Defendant.

[3]              As well, by cheque dated September 10, 2004, Evelyn made a gift to Kathie of $20,000 (the "Gift"). 

[4]              In his action, Danny alleges that Evelyn was not of sound mind at the time she made the New Will and the Gift and that John and Kathie unduly influenced her on these occasions.  He thus asks that the Court:

·        Declare that the New Will is invalid due to the lack of mental capacity of Evelyn and the complete absence of a free and enlightened consent at the time of its execution;

·        Declare that the 1998 Will is the only valid will of Evelyn;

·        Order John to produce the original of the 1998 Will and, failing which, declare that Evelyn died intestate;

·        Order John and Kathie to return the Gift to Evelyn's estate;

·        Reserve to Danny the right to claim all legal fees and expenses.

[5]              Evelyn's estate (the "Estate"), of which John and Evelyn's brother-in-law, Charles, are the liquidators, contests the action on the basis that Evelyn was, in fact, of sound mind on May 11, 2004 and that no undue influence was exercised over her.  By way of cross-demand, the Estate requests that the Court:

·        Accept and Homologate the final accounting;

·        Release the liquidators from their duties;

·        Authorize it to make delivery of the property to the heirs;

·        Authorize it to pay its attorneys from its assets.

[6]              John and Kathie contest the action on the same grounds and also allege that the Gift did not form part of the inventory of the Estate.  By way of cross demand, they claim their legal and extrajudicial costs and expenses, plus moral damages of $15,000 and punitive damages of $10,000.

[7]              As such, the main issue in this file is to determine Evelyn's mental capacity at the time of the New Will and of the Gift.  Was she of sufficiently sound mind to make a will and to enter into a contract of gift validly?

THE STATE OF THE LAW

[8]              Concerning the New Will, article 703 C.C.Q. serves as the starting point for any discussion of this nature.  It states, albeit somewhat lamely:

Art. 703.  Every person having the required capacity may, by will, provide otherwise than as by law for the devolution upon his death of the whole or part of his property.[3]   (The Court's underlining)

[9]              The case law and doctrine have interpreted this to mean that, in the making of a will, a testator's discretion is unlimited, except by the bounds of public order or the provisions of a law.  As for the "required capacity", there is a presumption that a testator is of sound mind, and his capacity in this regard "is considered relatively to the time he made his will".[4] 

[10]         In light of this presumption, the burden of proof in an action to declare a will invalid based on the mental incapacity of the testator is initially on the party alleging such incapacity: Danny, in the present instance.[5]

[11]         That burden shifts to the opposing party, however, where a prima facie case is made that the capacity of the testator is seriously in doubt.  Where that occurs, it is incumbent upon the party alleging the validity of the will to prove, on a balance of probabilities, that the testator had the required mental capacity at the time.[6]

[12]         Some remarks on the relative strength of a prima facie test versus a balance of probabilities test might prove useful. 

[13]         The prima facie test is the easier to satisfy.  All that is required there is to show that the situation exists "at first sight - on the face of it"[7], disregarding other proof to the contrary.  A prima facie case is sufficient to establish a fact until contradicted by other evidence.[8] 

[14]         That being said, this test requires that the proof raise more than a simple doubt about the testator's capacity.  It must lead to a presumption of fact that she was inapt.[9]

[15]         A presumption is defined in the Civil Code as "an inference established by law or the court from a known fact to an unknown fact" (Art. 2846 C.C.Q.).  As well, although presumptions are left to the discretion of the Court, article 2849 requires it to take "only serious, precise and concordant presumptions into consideration".  Those three terms were defined by the Court of Appeal, through the pen of Antonio Lamer, J.C.A. (as he then was), as follows:

Presumptions are serious when the connection between the known fact and the unknown fact is such that the existence of one establishes the existence of the other in a clear and obvious manner.

Presumptions are precise when the conclusions that flow from the known fact tend to establish the contested unknown fact in a direct and specific manner.

Finally, they are concordant, whether or not they each spring from a common or different source, when they tend to establish the fact to be proven through their overall relationship and consistency. [10] (translation)

[16]         Professor Royer is of the view that a presumption cannot be drawn where the known facts can reasonably lead to a conclusion incompatible with the unknown fact that a party is trying to prove, or where they do not reasonably allow one to exclude other causes[11].  Although this follows from the burden of proof being on the party evoking the presumption, the Court would still consider deciding in favour of the "unknown fact" where it is clearly the most likely conclusion that can be drawn, even though other conclusions could not be excluded. 

[17]         The balance of probabilities test, on the other hand, requires a party to show that the existence of the fact to be proven is more likely than its non-existence (Art. 2804 C.C.Q., reproduced below), but not necessarily certain.  Put another way, this test requires proof that the fact is at least 51% certain, not 100%.[12]  But, unlike the prima facie case, the assessment of the proof for this test must take all the evidence into consideration, including elements tending to contradict the assertion.

[18]         To succeed in attacking a will, it is not necessary to show that the testator was "totally insane".  It is enough to show that, at the time of making her will, she was unable, in the words of Mr. Justice Taschereau of the Supreme Court of Canada in the case of McEwen:

to comprehend, of (her) own initiative and volition, the essential elements of will-making, property, objects, just claims to consideration, revocation of existing dispositions and the like.  "Merely to be able to make rational responses is not enough, nor to repeat a tutored formula of simple terms.  There must be a power to hold the essential field of the mind in some degree of appreciation as a whole." (Léger v. Poirier, [1944] S.C.R. 152 )[13]

[19]         Such a test will generally require the Court to make a judgement call based on rather subjective, non-quantifiable factors.  To assist it in that duty, the Court finds it helpful to turn again to the reasoning of Mr. Justice Taschereau.  In a decision on the same subject rendered some three years after the judgement in McEwen, he wrote:

Si le contractant, ou le testateur, n'a pas la capacité de comprendre la portée de son acte, s'il n'a pas la volonté de l'apprécier, d'y résister ou d'y consentir, si à raison de la faiblesse de son esprit, il ne peut peser la valeur des actes qu'il pose ou les conséquences qu'ils peuvent entraîner, si en un mot il ne possède pas le pouvoir de contrôler son esprit, son acte sera nul faute de consentement valide.[14]

[20]         Finally, in order to have a new will invalidated, the party contesting it need not necessarily prove that the beneficiary was guilty of wrongdoing: undue influence, inveigling or any other sort of improper or faulty acts.  That being said, however, proof of such behaviour, is most relevant on two levels. 

[21]         First, where it affects the contents of the will, it indicates that the testator could be easily influenced and reflects negatively on her state of mind and mental capacity.  It would cast doubt on whether she was able to give the required consent to its provisions.

[22]         On another level, undue influence (captation, in French), where it appears to have influenced the contents of a will, has been held to be a cause for invalidating a will.  In Ciarallo v. Ciarallo[15], our colleague Guylène Beaugé provides a complete yet concise explanation of the principle, and the Court can do no better than to cite her textually:

[51]    La liberté de tester est absolue.  Cependant, même si le testament est un acte unilatéral, le consentement du testateur peut être vicié par la captation. 

[52]    En l'absence de définition au Code civil du Québec, une jurisprudence constante depuis un arrêt de principe de la Cour suprême[16], enseigne que la captation consiste en des manœuvres frauduleuses destinées à amener une personne à consentir un legs.

[53]    Ne sont pas illégaux le fait de s'attirer les faveurs d'un testateur par le zèle ou les marques d'affection, même dans un but intéressé[17]. Il est cependant illicite de profiter de cette proximité pour s'emparer de la volonté d'une personne, et lui suggérer comment tester.

[54]    Par ailleurs, la capitation s'exerce parfois de manière évidente.  Elle peut également résulter d'une série de comportements non déterminants en soi, mais qui, combinés, constituent une influence indue de nature frauduleuse: le fait pour un héritier d'appeler le notaire[18] ou d'être présent lors de la signature du testament[19] en sont des exemples.  

[55]    Le comportement que la jurisprudence associe à la capitation varie d'un cas à l'autre; néanmoins, les tribunaux tiennent généralement compte de l'âge et de l'état de santé du testateur pour apprécier sa capacité de résister aux manœuvres dolosives.

[56]    Souvent, la capitation s'infère d'une prévue établie par présomption de faits, car l'héritier mal intentionné n'agit pas ouvertement.  Le Tribunal évaluera donc si cette preuve révèle de façon prépondérante des éléments graves, précis et concordants[20] rendant probable la thèse de la captation. 

[57]    Dans l'affirmative, et si la manipulation a réellement provoqué la décision du testateur, le Tribunal annulera le testament.

[23]         Concerning the Gift, the law is similar both with respect to the reversal of the burden of proof and to the test of competency[21].  Here, the main difference on this point, of course, is the fact that the Gift was made some four months after the New Will, in a period of progressive decline in Evelyn's mental state.

THE NEW WILL

[24]         It is almost inevitably the case that the testator is no longer with us when the time comes to analyze her mental capacity to make the will.  It is thus necessary to try to establish her capacity after the fact.  To that end, three types of evidence were offered in this file: expert, documentary and eye-witness.  We shall analyze each in turn.

THE EXPERT PROOF on the new will

[25]         Evelyn was clearly a very sick woman throughout 2004.  By October, she was not able to recognize even family members.  Given that her condition was obviously deteriorating over time, and that the two events contested by this action took place some four months apart, i.e., in May and September, her mental capacity at the time of the Gift was probably not the same as at the time of the New Will.

[26]         Each side's expert proof was restricted to the New Will only.  It is important to note that, when Evelyn signed that document on May 11, 2004, she had been hospitalized at Santa Cabrini Hospital in Montreal since April 13^th, having been admitted because of "acute confusion".  She was discharged on June 11^th.  The New Will was signed, therefore, midway through her hospitalization period.

[27]         Danny produced an expert's opinion from Dr. Catherine Ferrier (Exhibit P-19), who was qualified by the Court as an expert in geriatrics and competency testing.  Defendants produced the opinion of Gregory Meterissian (Exhibit D-8), whom the Court qualified as an expert in psychiatry.

[28]         Dr. Ferrier's mandate was to analyze Evelyn's hospital records from April 13 to June 11, 2004 (the "Records": Exhibit P-2) in order to evaluate Evelyn's capacity to change her will on May 11, 2004.  She did that and her conclusion was best stated before us at trial, where she declared:

Nothing in the chart establishes that she was not competent that day, but nothing establishes that she was, either.  However, there were many factors that could have negatively influenced her capacity to make a competent decision.

[29]         The Conclusions section in her written report is only slightly more emphatic:

In summary, the chart contains no formal documentation of this patient's cognitive status or level of consciousness on May 11, 2004.  There is occasional documentation of her being somewhat forgetful at her baseline.  She had euphoria caused by medication (Decadron or Prednisone), that had resolved by this date.  Her many medical problems, and in particular her unstable diabetes and recurrent dehydration, could have been adversely affecting her mental status.  She was taking at least one other medication (Amitriptyline) that could cause altered mental status.  It is unlikely that on May 11, 2004, she was fully alert and aware enough to understand or appreciate the decision being made to change her will. 

[30]         Dr. Ferrier pointed to six entries in the Records to support the last two lines of her conclusion, including the admission notes.  She agreed that the acute confusion at the source of the hospitalization resulted from dehydration and that this had been corrected within days of Evelyn's admission. 

[31]         She also admitted that the other incidents were likely induced by outside causes, rather than Evelyn's general mental condition, and that they were quickly corrected.  For example, the "Decadron high" and the memory losses noted on April 19^th would have been caused by the fact that she was taking that drug, which is a stimulant, while the "down" on May 7^th resulted from its discontinuation.

[32]         Not having been asked to do so, she performed no other investigation and questioned no witness with respect to Evelyn's demeanour.

[33]         Dr. Meterissian did the same analysis of the Records as Dr. Ferrier.  He also considered her contemporary medical records at another hospital (the Jewish General) and in other departments of Santa Cabrini (Endocrinology, Pulmonary Services and Infectious Diseases).  As well, he interviewed not only John and Kathie (although not Danny or Maureen), but also, and more importantly, the notary who did the New Will and Dr. André Claveau, Evelyn's treating physician at the time.  It is critical to note that Dr. Claveau signed as witness to the New Will.

[34]         Dr. Meterissian's opinion as to the medical implications in the Records was essentially the same as Dr. Ferrier's, however their conclusions differed as to their impact on Evelyn's capacity to make a valid will on May 11^th.  That said, he went further in his investigation.  He based his final opinion on more information than did Dr. Ferrier.  He made deductions based on his observation that the charts of the Jewish General and the other departments at Santa Cabrini contain no indication of any sort of mental frailty on Evelyn's part.  He also relied heavily, and rightly so, on what he learned from the notary and, especially from Dr. Claveau.

[35]         Both told him that on May 11^th they were sensitive to the issue of Evelyn's mental state, given that she was changing her will.  Both told him that they were satisfied that she appeared to know full well what she was doing.  Dr. Claveau's input was of particular interest, since he advised that he would never have signed as a witness if he had not been convinced that Evelyn was in a state of mind to understand both the content and the impact of her actions.

[36]         Dr. Meterissian also referred to Evelyn's May 13, 2004 letter to her children (the "May Letter": Exhibit D-9A).  As we describe in the next section of this judgment, he found that its form and content indicated both clear thinking and that her cognition was intact on the date she wrote it, two days after signing the New Will.

[37]         Danny's attorney finds fault in Dr. Meterissian's opinion for his failure to interview either Danny or Maureen after having obtained the view of the opposing parties.  Dr. Meterissian explained that this was because he was told that, serving as John's expert, he could not expect the cooperation of his two siblings.  That likelihood surely existed, but his opinion would have been all the stronger had he at least made an effort in that regard.

[38]         Nevertheless, we prefer his opinion to that of Dr. Ferrier because of its broader scope of investigation, its analysis of additional factors, such as the May Letter, and its consideration of information from disinterested parties, especially that of Dr. Claveau.  This finding supports Defendants' position that Evelyn was of sound mind at the time she signed the New Will.  That said, the Court does not consider this, in itself, to be conclusive and will review the other evidence presented.

THE DOCUMENTARY PROOF on the new will

[39]         Apart from the Records, this evidence includes a number of communications, for the most part within the family, as well as several financial documents. 

[40]         Since the experts analyzed the Records in detail and no other witness based his or her position on them, the Court sees no need to go further into them than did the experts.  In any case, we see nothing therein to indicate that Evelyn was not competent to make a will on May 11, 2004.

[41]         Of the other documents, the one that most impresses the Court is the May Letter, both in its form and its substance. 

[42]         As for its form, the handwriting is well formed and most legible.  Its physical appearance is neat and orderly, with straight lines and few errors, i.e., several cross-outs that are not excessive in number.  As Dr. Meterissian testified, her writing is neat; the lines are straight; the document is well organized; the spelling is good.  He felt that it indicated that her cognition was intact at the time she wrote it.

[43]         It is useful to compare the appearance of this document with Evelyn's letter of April 12^th to her children (the "April Letter": Exhibit P-20).  That letter was written the day before her hospitalization for acute confusion and it provides a useful basis on which to judge her situation a month later.  The handwriting in it is shaky; the lines are not straight and the content is confused.  For example, she appears to have initially omitted the "1" in the date, unnecessarily capitalizes "My" in the first line, spells Kathie wrong in the second line, repeats the word "after" in the third line and repeats the word "Kathie" in the seventh line.

[44]         The improvement in the May Letter over the April Letter is striking.  It supports what all the doctors who testified stated, i.e., that Evelyn's mental problems at the time of admission to hospital had to all intents and purposes been corrected shortly thereafter.  This is further supported by comparing the April Letter to the notes she wrote on April 20^th (Exhibits P-21 through 24).

[45]         As for the substance of the May Letter, the Court is impressed by the lucidity of its contents.  Dr. Meterissian was also, testifying that it shows clear thinking.  In it, Evelyn is able to recall specific facts relating to her previous will, to her past life and to her present life. 

[46]         The fact that she appears to be concerned that there might be some question of her mental state, writing: "I want you to know that my mind is clear & I am thinking straight as I am now writing this letter to the best of my ability", does not change the Court's view.  To the contrary, it demonstrates that she understood that this was an issue and that she best deal with it in a forthright manner.

[47]         Thus, the Court agrees with Dr. Meterissian that the May Letter is convincing in favour of Evelyn's mental capacity.  It supports Defendants' position that Evelyn was of sound mind at the time she signed the New Will.

THE EYE-WITNESS PROOF on the new will

[48]         The Court benefited from the testimony of her treating physician, Dr. André Claveau, who coincidentally also signed as a witness to the New Will.  His testimony was categorical: "I would have never signed as witness if I was not convinced that she was competent to sign the will" (translation).  He added that she was alert and understood what was going on.

[49]         He was in a perfect situation to make that assessment, since he had been Evelyn's doctor for some time and was well aware of the general state of her cognition.  He saw her every day during her hospitalization in 2004 and testified that he did not feel the need to consult her records or have a competency test done before witnessing the New Will because he knew first-hand that she was capable of understanding the content and import of her acts.

[50]         This is strong evidence, indeed, in favour of Defendants' position.

[51]         The Notary who drafted the New Will and took Evelyn's signature also testified.  He met her twice, on May 11^th and probably a week or so earlier.  He was experienced in these matters and aware of the concerns that can arise when a hospitalized person changes her will.  In spite of this, he did not take any particular precautions or measures to confirm Evelyn's state of mind at the time of the signing.  He assessed her from their discussions of the contents of the will during the two meetings.

[52]         Nor did he feel the need to question Dr. Claveau about Evelyn's capacity when the doctor coincidentally entered her room on the 11^th and was asked to sign as a witness.  He stated that the doctor's mere agreement to sign was indication enough for him that Evelyn was fit for the purposes at hand.  Overall, the Court is not impressed by the type of investigation done by the notary with respect to such a critical element.

[53]         On another point, the Court recognizes that there is a divergence between his testimony to the effect that Kathie was present in Evelyn's room on both of his visits and that of Kathie and John to the effect that she was not.  To the extent that this has any relevance to the matter, which is far from obvious in light of the other findings of fact here, the Court prefers Kathie's version.  She was a most credible witness, as was the notary, however, it is to be expected that such an event would stick out more clearly in the mind of a lay person than in that of a professional who experiences such things regularly in the normal course of his professional duties.

[54]         As for the testimony of family members, the Court prefers to put that aside, except as otherwise mentioned, if corroborated by independent evidence, or where admissions contrary to their interest are made.  Given that they are interested parties, coupled with the necessarily subjective and imprecise nature of the issue at hand, it is unrealistic to expect useful information from them.

[55]         As such, Charles was the only disinterested family member who testified before us.  He was a most credible witness but lacked experience in matters of this kind.

[56]         He visited Evelyn in hospital on May 21, 2004 and discussed, among other things, the fact that he had been removed as liquidator in the New Will.  The Court takes from his testimony that Evelyn had done that so as not to impose a burden on him, since he had recently had a medical problem.  This indicates that Evelyn was aware of what was going on around her and was able to make decisions accordingly.

[57]         As well, his report of the visit indicates that Evelyn knew what she had done in the New Will ten days before, for she advised him that she had "left something to Kathie".  It also shows that she was able to defend her position and resist interference on a specific issue, since she at one point "screamed" at him that she would not discuss the matter further when he attempted to bring up the subject of Danny's loans.

[58]         Charles' testimony that "knowing the woman, I cannot believe she would not treat all three of her children equally" does cause some concern, but it is small in comparison to the other evidence in the record.  Moreover, it does not address the issue of the house going to Kathie.

[59]         In light of all this, Danny fails to make even a prima facie case for Evelyn's mental incapacity around the time of the New Will.  The same goes for any type of undue influence.  The burden of proof, therefore, is not shifted and the Defendants are not required to demonstrate anything further in order to defeat the action.

[60]         This being said, the Court can understand a certain frustration on Danny's part.  There is much that is "curious" about Evelyn's actions around May 2004:

·        She chose to change her will while being hospitalized for acute confusion;

·        She wrote to her children in the April Letter that she would like to leave Kathie $100,000, but changed her mind only eight days later to state that she "would love to give Kathie my house" (See exhibit P-21), which she, in fact, did in the New Will three weeks later;

·        She wrote to her children in the May Letter that "My goal is to treat equally my three children", in spite of not having done this with respect to Danny two days earlier;

·        She signed a loan document with Danny in March 2004 (Exhibit P-8) acknowledging that his debt was $105,000, which was far less than a one-third share of even the balance of the Estate (excluding the house), and then limited his share of the estate to forgiveness of that amount, again, in spite of her declared intention to treat her children equally;

·        Last but not least, in spite of all the above, she excluded her main asset, her house, from her legacies to her own children and left it to her daughter-in-law alone;

[61]         Nevertheless, it seems probable that her decisions with regard to the New Will were taken in full awareness and appreciation of their content and consequences. 

[62]         That being the case, the Civil Code and our traditions allow her to deal with her property as she saw fit.  She saw fit to benefit her daughter-in-law above her own children and grandchildren.  She was free to do that, and the fact that this person was not a blood relative is of no relevance. 

[63]         Moreover, there is nothing really "curious" about her decision on the house.  The evidence shows the close bond that developed between her and Kathie over a number of years, no doubt to a certain extent due to the fact that Evelyn's own daughter has lived in Hawaii since 1994 and Danny and his family live in Ontario.  The Court is convinced that Kathie's loving and generous care towards Evelyn was motivated by nothing other than human kindness and concern for a family member in need but, even if it were otherwise, that is not in itself cause to break a will. 

[64]         The Court will dismiss Danny's action with respect to the New Will.

THE gIFT - ABUSE OF PROCEDURE

[65]         During the trial, John and Kathie amended their cross demand to base it on articles 54.1 and following of the Code of Civil Procedure, which were not yet in existence at the time the cross demand was initially made.  They base their claim on two grounds:

·        that it was patently obvious that Danny had no legal standing to sue John and Kathie for the reimbursement of the Gift to the Estate, since only the Estate could make such a claim and, if that was not obvious, they had advised him of this on several occasions, thus making the claim abusive, and

·        that to contest the Gift was frivolous and in bad faith, and that Danny's motive for doing so was to keep them "hostage" in this action.

[66]         On the issue of standing, John and Kathie's attorney argued that, although Danny would have a financial interest to contest the Gift, he did not have a legal interest to do so, since "as long as the seisin of the liquidator is not terminated, the rights of the legatee are subordinated to the liquidator's, with the result that the legatee cannot immediately exercise his or her rights in the property bequeathed"[22]. 

[67]         Although the Court agrees with Justice Gonthier in the above quote, it does not see how this acts as a bar to Danny's efforts to have the Gift returned to the Estate.  He is not attempting to exercise his rights to any of the bequeathed property.  His action is in the way of a conservatory measure under articles 1626 and following of the Civil Code.

[68]         True, before he sued in this file he neither requested the Estate to institute such a proceeding nor contested the inventory pursuant to article 797 C.C.Q., both of which John and Kathie allege he should have done.  According to their lawyer, Danny should have sued the Estate in order to force it to sue John and Kathy over the Gift. 

[69]         Danny saw no hope for the first measure and the Court sees no logic for the second.

[70]         Concerning the contestation of the inventory and the request for the Estate to sue John and Kathie, Danny reasoned that, since John was one of the two co-liquidators, this would have been pointless.  This reasoning was borne out by the fact that, after the institution of this suit, the Estate did not offer to take up the action in his stead, which it could have done.  As for requesting it to do so, the action itself served as a "putting in default" in that regard: article 1594 C.C.Q.

[71]         Concerning the option of suing the Estate to force it to sue in turn to recover the Gift, this would have required two trips to the same well.  In the first action, Danny would have had to make at least some proof on the validity of the Gift in order to convince a judge to order the Estate to sue to recover it in a second action, in which the same proof would have had to be made anew.  Such a process flies in the face of the quest for proportionality that the Code of Civil Procedure requires jurists to favour, particularly given the amount involved.

[72]         The Court therefore rejects this first ground of the cross demand.

[73]         As for whether it was frivolous and in bad faith for Danny to contest the Gift, the Court deals with that in the following section.

THE gIFT - ANALYSIS

[74]         Since the experts limited their opinions to the making of the New Will in May 2004, the proof on the Gift is limited to certain documents and the testimony of ordinary witnesses reflecting on Evelyn's mental state in September and October.  Given that, John and Kathie argue that the Court cannot make a finding on mental capacity in the absence of expert opinion.

[75]         The Court disagrees.  Absent a provision requiring otherwise, our law does not specify the type of evidence that must be made to prove a fact.  Article 2804 of the Civil Code sets out the rule in this regard: "Evidence is sufficient if it renders the existence of a fact more probable than its non-existence, unless the law requires more convincing proof".

[76]         For the period after her hospitalization, there was little or no possibility of making expert proof and, in any event, neither side attempted to do so.  Since there is no requirement in law to make more convincing proof in such cases, the Court will consider the evidence in the record and determine if it is sufficient to show that Evelyn's incapacity was more probable than the contrary.

[77]         As a factual backdrop, John testified that the Gift was made as a birthday gift to Kathie, meant to allow her to bring John and their four children on a cruise.  Evelyn apparently also wanted to fund a trip for the couple alone after the cruise.  It is noteworthy that she had already paid for a cruise for the couple the previous summer (2004).

[78]         She initially tried to make a cheque to Kathie for $30,000, according to John, but he refused.  He also tried to persuade her to give less than $20,000, saying it was more than what was required, but Evelyn was adamant, so he prepared a cheque in the amount of $20,000 (the "cheque": Exhibit P-9).  She signed and kept it in her possession.

[79]         The document that most attracts the Court's attention on this issue is the cheque itself.  Two aspects are of particular interest: the number of the cheque in relation to other cheques drawn around that time and the apparent deterioration in Evelyn's handwriting compared to that in the May Letter. 

[80]         The cheque is number 49 from Evelyn's cheque book and is dated September 10, 2004.  As part of his duty as liquidator, Charles, who is an accountant, made up a list of the cheques drawn on Evelyn's account in September and October 2004 (Exhibit P-16).  It shows the following cheques and dates:

#44     September 5             to Maureen

#45     September 15           to Canada Customs

#46     not processed during the period

#47     September 20           to Revenue Québec

#48     not processed during the period

#49     September 10           to Kathie (the Gift)

#50     September 29           to AXA Assurances

[81]         Kathie testified that Evelyn gave her the cheque in a birthday card at the end of September.  Her birthday is October 9^th and she cashed it on October 4^th. 

[82]         Danny argues that the cheque must have been written after the 10^th and pre-dated, since cheques #45 and #47 are dated later.  In his view, because of its numbering, the cheque must have been written sometime between September 20^th (cheque #47) and September 29^th (cheque #50).  John denies any pre-dating, but offers no explanation as to why he used cheque #49 to prepare the Gift when, based on the cheques numbers, it seems that a cheque drafted on September 10, 2004 should have been #45.

[83]         Danny puts great emphasis on the point because, as noted in more detail below, Evelyn's mental capacity was fading fast that Fall and each passing week saw her sink deeper into mental incompetence.

[84]         His argument is bolstered by Kathie's admission that she only received the Gift at the end of September.  This corresponds to the numerical sequence of the cheque. 

[85]         Thus, the proof is not clear as to when the cheque was, in fact, written.  In any event, since it was given to Kathie only at the end of September, that is the relevant time at which to consider Evelyn's mental capacity with respect to the Gift.

[86]         As for the deterioration in Evelyn's handwriting, the only thing she wrote on the cheque is her signature, but that is enough to raise doubt in the Court's mind.  In the same way that a comparison of the handwriting in the April Letter and May Letter indicates an adequate state of mind on May 11^th, a comparison of her writing in the May Letter and on the cheque raises suspicions of a much lower aptitude by September.

[87]         On the cheque, the writing is shaky and disorderly.  The "E" and the "v" in Evelyn, the latter being hardly legible, are below the line, while the apostrophe in O'Neil is over the "O" and the "l" is not connected to the preceding "i".  It is a far cry from her handwriting in the May letter and in other samples of her writing and signature in April (Exhibits P-21 through 24). 

[88]         The Court recognizes that her eyesight had seriously deteriorated by September due to cancer of the eye.  As well, no expert proof was offered to allow us to equate a diminished ability to write with lessened mental capacity.  Nevertheless, this is an element that must be considered, particularly in light of other indicators at the time, which we analyze below. 

[89]         Turning to the Gift itself, this type of almost-aggressive generosity was uncustomary of Evelyn.  It was by far the largest amount she had ever gifted to anyone, according to all witnesses.  Although she had always made an effort to recognize her children's birthdays and Christmas with thoughtful gifts, she had never given more than one thousand dollars before 2004, and that was to help Maureen with her Master's degree expenses.  This factor also supports Danny's position that Evelyn was not of sound mind at the time she made the Gift.

[90]         There are other facts supporting Danny's position.  All observers felt that Evelyn was going downhill fast at least by the Fall of 2004, if not earlier.  John's wife, Kim, saw this in October, and perhaps as early as June.  During Kim's visit in mid-October 2004 with Danny and their four children, Evelyn called Kim by her (Evelyn's) sister's name and wanted to know the names of her own grandchildren.

[91]         Maureen, who because of distance could not see Evelyn regularly, spoke with her every Sunday for about an hour and spent several weeks with her in the summer of 2004, as well as several days at the time of the signing of the New Will.  She noted serious deterioration in Evelyn's cognitive abilities in mid-May and is convinced that by October 2004 she could not have understood what she was doing with respect to the Gift.

[92]         By the time of Charles' late-November visit, he not having seen Evelyn since May, her decline was complete.  She did not know who he was and thought that she was back in New Brunswick at the school she attended as a child.

[93]         There is also John's testimony concerning Evelyn's almost euphoric desire to shower gifts on Kathie.  She had already given her the house and a cruise that summer, and now she wanted to give her an additional $30,000 for another cruise.  John admits that this was excessive and he stated that he told her that even the amount of $20,000 was too much.  The fact that he felt the need to rein her in like this is significant.

[94]         Most tellingly, John and Kathie told Dr. Meterissian of the evolution of Evelyn's state right up to her death, information which he recounted in his report.  At page 6 of his report, he writes that "It was in September of 2004 that the O'Neils began to notice that their mother was not doing quite so well … they felt that she could no longer be left alone and by the end of September 2004 came to the decision that she should come to live with them in their own home.  Evelyn was no longer managing by herself and Katherine was obliged to spend many nights with her … From October until December of 2004 Evelyn's condition continued to deteriorate … certainly they all noticed that by the end of October 2004 her mental condition had changed for the worse and that she was now displaying all of the following:".  He goes on to list five examples of serious mental incapacity.

[95]         Although Dr. Meterissian indicates that John and Kathie couched their descriptions of the pre-October problems as being physical or medical, these statements were made to him in the context of the present litigation and it would be surprising for the defendants to emphasize anything else.  As well, they immediately followed through on the decision taken at the end of September.  Evelyn moved in with John and Kathie on October 4^th, as soon as Kathie could get her room ready.

[96]         Dr. Meterissian's reporting of John and Kathie's concerns for Evelyn in September, coupled with their decision to have her move into their home at that time, strongly supports Danny's position that Evelyn was not of sound mind at the time she made the Gift.  Their declarations to him concerning Evelyn's serious change for the worse "by the end of October" can but reinforce this conclusion.

[97]         In summary, the various elements of evidence analyzed above all point to a probable mental decline in Evelyn to the point that where she would be unable to appreciate the nature, content and impact of her actions as of September 2004.  The Court thus concludes that Evelyn was not competent to make a valid gift as of at least September 10, 2004.[23] 

[98]         Our law holds that a gift is invalid for incapacity of the donor whether or not it is a logical action on her part.  For reasons we describe above, it would certainly not have been illogical for Evelyn to want to be very generous with Kathie in her last days.  Nevertheless, given our holding that Evelyn no longer had the mental capacity to evaluate her actions properly as of September, the Gift is invalid.

[99]         In light of that, it is not necessary to consider whether there should be a reversal of the burden of proof as a result of a prima facie case of incapacity having been made or whether undue influence might have been exercised, although the Court sees no evidence of the latter.  The proof establishes a probability of incapacity in relation to the Gift, and this, after full consideration of the proof to the contrary.  Consequently, the Court will grant Danny's action with respect to the Gift and will order Kathie to pay $20,000 to the Estate in reimbursement thereof.

THE CROSS DEMANDS

[100]     The Estate's cross demand should be granted.  In light of our finding of validity of the New Will, it is time to close out the Estate.  Under the hypothesis that the New Will was upheld, Danny accepted that.  The Court will grant the conclusions that the Estate seeks in its cross demand and, given the acceptance of the final account and the delivery of the property to the heirs, will discharge the liquidators of their administration. 

[101]     On the other hand, John's and Kathie's cross demand, based on abuse of procedure in Danny's claiming reimbursement of the Gift, will be refused.  Since we maintain the action on that issue, it cannot easily be said that it was an abuse of procedure to institute it.

interest and COURT COSTS

[102]     Although we shall order Kathie to pay interest on the amount of the Gift from the date of service of the action, we shall not add on the additional indemnity.  Kathie is guilty of absolutely no wrongdoing here - to the contrary.  As such, she should not be caused to suffer prejudice as a result of the reimbursement ordered, which would be the case were she to have to pay the additional indemnity on top of the legal rate of interest.  That rate, five percent, is more than adequate in today's world to compensate the Estate for any damages it might have suffered by not having the amount of the Gift earlier.

[103]     Finally, since each side had some success in this file, the Court sees no reason to award costs to one or the other.  Each has his lawyer and expert to pay and it seems just to leave it at that.  Consequently, the Court will render a judgment "without costs".

[104]     BASED ON THESE REASONS, the court:

[105]     Grants Plaintiff's action in part;

[106]     maintains the Defence of Defendant Succession of Evelyn Wallace O'Neil;

[107]     dismisses the Defence of Defendants John O'Neil and Katherine O'Neil;

[108]     orders Defendant Katherine O'Neil to pay to the Estate of the late Evelyn Wallace O'Neil the sum of $20,000, plus interest only since the date of service of the action.

[109]     grants the Cross Demand of the Succession of Evelyn Wallace O'Neil;

[110]     accepts and homologates the final account of the estate of the late Evelyn Wallace O'Neil;

[111]     authorizes the liquidators to make delivery of the property to the heirs in accordance with the terms of the May 11, 2004 will of the late Evelyn Wallace O'Neil;

[112]     authorizes the liquidators to pay the fees of their attorney from the estate's assets;

[113]     discharge the liquidators of their administration;

[114]     DISMISSES the Cross Demand of John O'Neil and Katherine O'Neil;

[115]     the whole without costs.

	_____________________________ BRIAN RIORDAN, J.S.C.
Mtre. David McIninch Mtre. Darren Henriet Attorneys for Plaintiff   Mtre. Joseph Ionata Attorney for Defendant Succession of Evelyn Wallace O'Neil   Mtre. John Bracaglia Attorney for Defendants John O'Neil and Katherine Fitz O'Neil   Hearing Dates:  May 31 and June 1, 2 and 7, 2010