In the recent decision of Dujardin v. Dujardin, 2018 ONCA 597, the Court of Appeal for Ontario considered the validity of wills executed by a testator suffering from chronic alcoholism.
Jack and Noel Dujardin (“Jack” and “Noel”) were brothers who jointly owned a farm property that had been in their family since 1958. The brothers lived on the farm together and ran the farming business as a partnership.
In 1998, the brothers executed mirror wills, leaving their entire estates to each other. In 2000, Jack married Loretta June Dujardin (“Loretta”), with whom he had been in a relationship since 1994.
In August 2006, the brothers met with the same lawyer who had prepared their 1998 wills in order to prepare new corporate and personal wills, with a view to minimizing probate fees. Although the lawyer sent them drafts of the wills in September 2006, the brothers did not execute their wills until March 2009 (the “2009 Wills”). In the 2009 Wills, the brothers left their interests in the farm to each other. Jack left nothing for Loretta in the 2009 Wills, although he designated her as the beneficiary of a RRIF, and she received some other benefits from him in the form of income from the farm business and pensions following his death.
Jack suffered from alcoholism. Although he was productive during the work day, he drank heavily into the night, and purchased 40 ounces of liquor per day.
In 2007, at age 65, Jack suffered a heart attack and spent two weeks in the hospital. In a discharge summary, a doctor wrote that Jack’s “problem was with cognitive dysfunction and confusion disorientation thought to be due to organic brain syndrome secondary to alcohol abuse.” However, the same doctor saw Jack again in May 2008 and noted no cognitive impairment relating to Jack’s ability to drive.
Despite a brief period of abstinence following his release from hospital, Jack began to drink again. Jack suffered a stroke and died on December 26, 2011.
Loretta challenged the validity of the 2009 Wills, claiming that Jack lacked testamentary capacity due to his chronic alcoholism. Loretta’s claim was dismissed at trial, 2016 ONSC 6980.
Loretta appealed to the Court of Appeal for Ontario, on the grounds that the trial judge erred in finding that: (i) the doctor’s expert evidence on testamentary capacity was inadmissible; (ii) Jack knew and approved the contents of the 2009 Wills; (iii) Jack possessed testamentary capacity; and (iv) the 2009 Wills were properly executed.
The appeal was dismissed for the following reasons:
(i) Admissibility of Doctor’s Evidence
The doctor retained by Loretta to provide an opinion about Jack’s testamentary capacity had never met Jack. The doctor based his opinion on Jack’s hospital records following his 2007 heart attack, and discovery transcripts, among other documents related to the litigation. The doctor’s initial opinion was a categorical assertion of Jack’s incapacity, but after being challenged by experts from the other side, the doctor offered a tentative, even speculative, opinion. The trial judge exercised her discretion as gatekeeper of the evidence and refused to admit the expert’s evidence, which was diluted from his original opinion and merely raised the possibility that Jack may have suffered from a cognitive impairment making him unable to fully comprehend the legal advice he received in 2009. The expert’s evidence was of little assistance to the court when weighed against the time the doctor’s testimony and that of responding experts would consume in trial time. The Court of Appeal saw no error in this conclusion. Rather, the case was fought and decided on the evidence of those who knew and interacted with Jack, and not on the basis of experts who never met or examined him. As the trial judge was best placed to assess the potential value of the expert’s evidence, her conclusion is entitled to deference. The fact that Loretta was self-represented at trial did not entitle her to rely on otherwise inadmissible evidence.
(ii) Instructions to Prepare Wills
The Court of Appeal dismissed this ground of appeal as it was not listed in Loretta’s Notice of Objection, nor did Loretta raise it at trial. Although some of Loretta’s questions and submissions at trial touched on this issue, it would be unfair for Noel to respond to this issue on an inadequate record.
(iii) Validity of the Wills
At trial, Noel acknowledged the presence of suspicious circumstances related to Jack’s mental capacity on account of Jack’s alcoholism and his hospitalization in 2007, such that the onus fell upon Noel to establish that Jack knew and approved of the 2009 Wills’ contents, and that he had testamentary capacity.
Here, the formal requirements of the validity of the 2009 Wills under s.4 of the Succession Law Reform Act (“SLRA”) were met, as there was evidence to support that Jack signed the 2009 Wills at the end of each document, in the presence of two witnesses, who in turn signed the 2009 Wills in Jack’s presence. The lawyer who prepared the 2009 Wills for the brothers had known them for years. By the time they signed the 2009 Wills, they had been in possession of the drafts for 2.5 years. The lawyer and his law clerk gave evidence at trial, and testified that they had no reason to believe Jack had been drinking on the day he signed the 2009 Wills and believed that Jack “was completely with it.” Noel testified that Jack had not been drinking on the day he signed the 2009 Wills. The trial judge found that Noel, as the propounder of the 2009 Wills, had the onus of proving compliance with the SLRA, which he had done on the basis of the evidence. The Court of Appeal saw no basis to disturb this finding.
The Court of Appeal also agreed with the trial judge that the evidence supported the trial judge’s finding that Jack had all of the elements of testamentary capacity in that he (i) understood the nature and effect of the 2009 Wills; (ii) recollected the nature and extent of his property; (iii) understood the extent of what he was giving under the 2009 Wills; (iv) remembered the people he might be expected to benefit under the 2009 Wills; and (v) understood the nature of the claims that may be made by persons he is excluding under the 2009 Wills.
Although Jack had issues with alcohol, and his health suffered as a result, including his hospitalization in 2007, the trial judge made no error in finding that Jack was of sound mind when he executed the 2009 Wills.
Although the testator’s chronic alcoholism and his hospitalization may be sufficient to raise suspicious circumstances regarding the validity of the will, the medical evidence must support the finding that the testator lacked capacity when executing the will. Moreover, where the propounder of a will can muster sufficient evidence from those who knew the testator when the will was executed in support of the testator’s capacity, this will likely be sufficient in discharging the evidentiary burden in upholding the validity of the will.