Eady v. Waring (1974), 2 O.R. (2d) 627 (C.A.)

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  • Date: 2018

Eady et al. v. Waring

(1974), 2 O.R. (2d) 627

ONTARIO COURT OF APPEAL

EVANS, ARNUP and ESTEY, JJ.A.

1ST FEBRUARY 1974

 

 

Wills — Validity — Testamentary capacity — Suspicious circumstances — Whether principle that suspicion must be removed before Court can pronounce in favour of will applies only where person who takes benefit prepares will — Whether principle restricted to circumstances connected with actual preparation and execution of will.

Testator, aged 78 years, executed a will in May, 1969, two years before his death, and while he was living with his married brother as a paying guest. The will revoked an earlier one which had bequeathed certain securities worth approximately $11,000 to testator’s wife’s niece who had lived with testator and his wife from age 13 until her marriage, and divided the residue of his estate (worth over $100,000) among his married brother, his bachelor brother and his sister. The impugned will of May, 1969, left the major portion of the estate to the married brother and nothing to the other brother and sister or the niece. Testator had lived all his married life in Detroit, but after his wife’s death he determined in 1968 to return to Renfrew County where his family originated and to which he, his wife and his niece had made annual visits for many years. His niece drove him to Renfrew at his request and settled him with his bachelor brother and spinster sister as a paying guest until such time as he could be admitted to an old people’s home. At this time there was no question that the testator was capable although he suffered from a heart condition.

Furthermore there always had been and continued to be a warm relationship between him and the niece. In January, 1969, the testator quarrelled with his sister and was then persuaded to move in with his married brother. At the time the will was made, this brother’s son, one of the executors under the impugned will, drove the testator to a solicitor and remained in the solicitor’s office with his uncle and the solicitor while instructions were given for the will. The nephew again drove his uncle the same evening to the solicitor’s house to have the will executed. He had also accompanied his uncle to Detroit in March, 1969, for the purpose of closing out a safety-deposit box and of transferring some $87,000 from a Detroit bank to a Canadian bank into a joint account with his married brother. The solicitor testified that he spoke with the testator for about two hours concerning his testamentary wishes and concluded that the testator had the necessary capacity to make the will in that he answered questions put to him coherently and gave apparently satisfactory reasons for changing his will. The nephew also thought his uncle capable of making a will. He further stated that he never at any time discussed the making of the will with his father. A medical doctor who had attended upon the testator since his return to Renfrew also testified as to the testator’s capacity although he admitted that his patient suffered from progressive arteriosclerosis. Other evidence indicated that since the testator moved in with his married brother in January, 1969, his life-style changed completely in that he seemed to be constantly watched and supervised by his married brother’s family and did not appear to be free, either in a physical or mental sense, to continue his former associations with friends, relatives and neighbours from whom he was insulated by his brother’s family. This remained the case when his niece, having finally been informed of her uncle’s illness and hospitalization, came from California to visit him in November, 1969. She experienced great difficulty in seeing him alone without a member of the testator’s married brother’s family being present. Testator’s affection for her still subsisted, however, at this time and this fact was corroborated by the evidence of other witnesses. There was no question that at this time the testator was much deteriorated, a fact corroborated by several witnesses. In fact, several witnesses testified to testator’s failing memory dating from before the time he moved in with his married brother. The trial Judge, acting on the principle stated by Davey, L.J., in Tyrrell v. Painton et al., [1894] P. 151 at pp. 159-60, “that wherever a will is prepared under circumstances which raise a well-grounded suspicion that it does not express the mind of the testator, the Court ought not to pronounce in favour of it unless that suspicion is removed”, pronounced against the will on the ground that the suspicion raised by the facts had not been removed and that at the time the impugned will was executed the testator did not possess a disposing mind and memory in the sense that he was capable of his own initiative and volition of comprehending all the essential elements of making a will. On appeal from this decision, held, the appeal should be dismissed.

While the question whether or not a testator has capacity must be determined at the time the will is executed, evidence about the testator’s circumstances, his assets, his family and his relationship to them, as well as his capacity subsequent to the making of the will, is relevant and admissible if and to the extent that it assists the Court in determining capacty at the time the will was executed. The weight to be given to such evidence depends upon the circumstances of each case.

Furthermore, the principle regarding suspicious circumstances applied by the trial Judge is not restricted to cases in which a beneficiary is instrumental in drawing the will, as might have appeared from the second rule in Barry v. Butlin (1838), 2 Moo. 480 at pp. 482-3, 12 E.R. 1089, but is applicable wherever such a suspicion arises regardless of who prepared the will.

Moreover, the principle is not restricted in its application to the circumstances surrounding the preparation of the will. Facts antecedent to the actual preparation may throw light on the circumstances under which it was executed and are thus relevant to removing or confirming the suspicion.

 

[MacGregor v. Ryan, [1965] S.C.R. 757, 53 D.L.R. (2d) 126;

Lucier v. Lynch et al., [1947] O.R. 30, [1947] 1 D.L.R. 830,folld;

Tyrrell v. Painton et al., [1894] P. 151, apld; Re R., [1951] P. 10, not folld;

Barry v. Butlin (1838), 2 Moo. 480, 12 E.R. 1089, refd to]

 

APPEAL from a judgment of Dunlap, Surr. Ct. J., dismissing an application to propound a will in solemn form.

 

H.L. Morphy, for appellants.

J.D. Brownlie, for respondent.

 

The judgment of the Court was delivered by

 

ARNUP, J.A.:– This is an appeal from the judgment dated January 12, 1973, of His Honour Judge Frank E. Dunlap, sitting in the Surrogate Court of the County of Renfrew, which dismissed the application of the appellants to propound by proof in solemn form the will of Hugh Emerson Mullins, dated May 3, 1969. The appellants are the executors named in the will of which a grant of letters probate was sought. The respondent is a niece of the late wife of the testator. The testator died on May 28, 1971, at the age of 80.

Following proof in common form, letters probate of the will now in dispute were issued on August 4, 1971, to the appellants but an application to revoke the grant was made by the respondent and the trial of an issue was directed. The matter was dealt with at the trial of the issue and again before us as if the prior grant of letters probate had not been issued and accordingly I propose to deal with the appeal as if the disputed will was sought to be proved in solemn form in the first instance.

The trial Judge gave very detailed reasons for judgment which I have read several times. I have concluded that I would not be doing justice to those reasons, nor to the parties involved, if I were to attempt to summarize them, and I accordingly quote them in full. (I have omitted certain quotations from the authorities, and have abbreviated the names of the professional persons who gave evidence.):

At the commencement of these proceedings it was agreed by Counsel that the Style of Cause would show the Executors of the Estate of Hugh Emerson Mullins as Plaintiffs and Dorothy Ann Waring as Defendant. The Plaintiffs would bear the onus of proving the due execution of a certain Last Will and Testament of the said Hugh Emerson Mullins dated the 3rd of May, 1969, anf (sic) the testamentary capacity of the said Hugh Emerson Mullins at that time, while the Defendant would have the onus of establishing that the said Will was executed as a result of undue influence of the residual beneficiary Leonard Mullins, a brother of the Deceased.

A brief resume of the life of the Testator seems to be in order at this stage. The evidence discloses that he had been born in Horton Township and at some point in his youthfui years had moved to Detroit, Michigan, where he married his wife Vivian in the 1920’s. She predeceased him in 1965 leaving an estate of $80,000.00 plus a house, from the proceeds of the sale of which Dorothy Ann Waring, her niece, received $10,000.00. The Testator and his wife had no children but Dorothy Ann Waring lived with them from the time she was thirteen until her marriage at age twenty-three. All the evidence would indicate that the Testator maintained warm relations with his wife’s niece prior and subsequent to his bereavement.

The sole source of information as to the manner in which the Testator and his wife conducted their affairs is the evidence of Dorothy Ann Waring and I wish to state that I was much impressed with the candor and sincerity of this woman who alone of all the witnesses enjoyed that kind of intimate and long enduring association with the Testator so essential to a profound and sensitive assessment of his health and mental state. I accept her testimony that the wife had been the manageress of the couple’s business affairs and that upon her death the Testator sought her assistance to place these affairs in order. On all of the evidence I have no hesitation in finding that she not only enjoyed a position of trust and confidence with the Testator but that she was the object of his affection.

The Mullins family has its roots in the Township of Horton in the County of Renfrew and it was back to this area of his native origins that the Testator determined to move in the Fall of 1968. For many years he, his wife and Dorothy Ann Waring made annual visits to his father’s home. In 1938 his spinster sister Rachel and his bachelor brother Bob had built a house near the family homestead and it became the headquarters for the Testator and his family on these visits. In November of 1968 Mrs. Dorothy Ann Waring drove Hugh Mullins up to Horton Township from Detroit to establish accommodation for him at Bonnechere Manor in the Town of Renfrew.

Upon ascertaining that a year’s residence in the County was a prerequisite for his acceptance he arranged to stay this period with Bob and Rachel as a paying guest, and Mrs. Waring returned to California.

The Testator was deaf, and because of limited education and an inept hand, a very poor correspondent. No communication came to Mrs. Waring from the Horton hills but because of her knowledge of the impediments she was not concerned. Prior to his departure from Detroit the Testator had confided to her details of a Will executed by him with his solicitor, one Kenney, wherein he made provisions for his brother and sister, and herself. From time to time Mrs. Waring wrote and on occasion telephoned from California but his deafness and a rural party line made this latter type of communication unsatisfactory. In November of 1969 Mrs. Waring called Leonard Mullins to learn for the first time that her Uncle had been in hospital in June and then again in September and was presently in the Rehab. Annex in Renfrew.

This intelligence provoked her to fly to Renfrew to visit her ailing Uncle, she being somewhat bitter over the absence of any timely communication. She found her reception by Leonard Mullins and his family to he somewhat chilly and experienced considerable difficulty in arranging any private visit with her Uncle free from their overzealous vigilance.

Upon being informed that she would be notified when he died she arranged for Marjorie Lorene O’Brien, the wife of the local Minister of the Pentacostal Church her Uncle frequented, and an employee of the Rehab. Annex, to act as an intermediary between herself and her Uncle. Before leaving Renfrew, at her Uncle’s request, she attended upon solicitor Chown concerning the conduct of the Testator’s affairs and arranged for him to write to his attorney, Kenney, to ascertain the laws of Michigan as they applied to the management of his assets there. After returning to California she kept up a regular correspondence with Mrs. O’Brien and in due course learned of her Uncle’s death in May of 1971.

The executors seek to propound a certain Last Will and Testament executed by the Testator on the 3rd of May, 1969. To do so they must establish that the Testator was of sound disposing mind and memory in the sense established by Cockburn C.J. in Banks vs Goodfellow L.R. 5 Q.B., at p. 565.

The trial Judge then quoted from pp. 568-9 and continued:

The evidence on this most salient issue is of course in conflict. The proponents of the Will rely upon the testimony of Dr. B, Mr. C, the solicitor who took the Testator’s instructions and drew up the Will, and Leonard Mullins and his son Lloyd. Let us examine this testimony.

Dr. B testified that he had been treating the Testator for a mild congestive heart failure condition since June the 25th, 1968. He saw him in his office on June the 25th, November the 18th, 1968, and on the 18th of March, 1969, prior to his admission to hospital on June the 5th, 1969. At no time did he detect any sign of senility and, “it never crossed my mind that he was anything else but mentally alert”. In his opinion he possessed the competence to transact business prior to the 13th of June, 1969. When confronted with Dr. G’s admission notes of the 5th of June, 1969, he agreed that the Testator was suffering from arteriosclerosis which constituted a permanent and progressive debilitative effect on the mind but maintained his observations of the man supported his opinion to which he still adhered.

Mr. C met the Testator for the first time on Saturday the 3rd of May 1969, at his office in Renfrew. His impression was that he was in a reasonable state of health for a man of his years — he answered questions coherently, referred to a previous Will and expressed his intent to change it. For some two hours he addressed questions to the Testator in the presence of Lloyd Mullins and thereby obtained the instructions he ultimately incorporated in Exhibit No. 1. In all he amassed some six pages of “cryptic” notes which are filed with a typewritten summary as Exhibit No. 3.

It was his opinion that the Testator had asserted valid reasons for the change and that he had stated them without difficulty. He recalled that there was a sense of urgency about the matter as he typed the Will that day, and the Testator returned in the evening at his home for its execution, again in the company of Lloyd Mullins. He stated he had had to “pump” certain of the answers out of him as he displayed some reluctance to reveal his private affairs, but between the morning attendance and the evening visit the Testator had remembered the name of a woman who had befriended him in Detroit many years before and her name was inserted in ink. All in all he was satisfied that the inquiries he had launched removed any question about his capacity.

James B. Eady, one of the Executors named by the Testator, stated he had known the Deceased for many years but had had no close connection with him until he was living with his brother Leonard. In his words “he knew what he was talking about” and suffered from no loss of memory that he “saw”. He talked to him at the Renfrew Fair in the Fall of 1969 and observed no change in his condition from the previous Spring. Lloyd Mullins, age twenty-seven, son of the main beneficiary and one of the Executors named in the Will, gave evidence that he visited his father’s home approximately every second week-end and saw his Uncle Hugh on these occasions. On the 3rd of May, 1969, at his Uncle’s request, he drove him to Town to Mr. Chown’s office and first became aware of the purpose of this visit when his Uncle began to give instructions for his Will. He remained in the office with the Solicitor and his Uncle for the two hours this business consumed and returned to Mr. Chown’s home at six p.m. when the Will was executed. He maintained he had never discussed the Uncle’s Will with his father at any time. In March of 1969 he had driven his Uncle to Detroit to close out a safety deposit box and in November or December of the same year he was aware his Uncle transferred some $60,000.00 from an account in Detroit to an account he opened in Renfrew in the joint names of himself and Leonard. He maintained he had on occasion discussed business with his Uncle Hugh but never advised him. He gave his occupation as the administrative manager of the Merivale Road branch of the Bank of Montreal in Ottawa.

It was his view that his Uncle could handle his own affairs, that his general alertness was “A-1”, that he knew what he wanted to say and do and could do it. His assertion was that on the 3rd of May, 1969, he had satisfactory ability, “the same as myself”. Leonard Mullins, the brother and main beneficiary, testified that in January, 1969, the Testator had been badly confused after his row with Rachel and wanted to return to Detroit to a convalescent home. Under his persuasion the Testator decided to stay with him until Spring, paying $100.00 monthly for his room and board, on the understanding he would leave them if he did not like it. He said he was unaware that Hugh had made a Will on the 3rd of May, 1969, until a month or so later he mentioned it to him in Renfrew. He maintained that aside from a weak heart the Testator was “brighter than I am”.

The evidence for the Defence was advanced by Mrs. Waring, Marjorie Lorene O’Brien, Harvey J. McMillan, Ivan McMillan, Muriel Wall, The Reverend O’Brien, Lena McRae and Leonard Jones. Considerable significance must be given to the evidence of Dorothy Ann Waring because of my aforestated convictions as to its reliability and the mature assessment of her Uncle’s physical and mental condition her long association afforded. Prior to her Aunt’s death the Testator had suffered a minor stroke and in the summer of 1965 a more severe heart condition had developed just prior to a prostate operation. During his hospitalization in 1965 the medical reports indicated he was suffering from cerebral arteriosclerosis.

After her Aunt’s death she listed all her Uncle’s accounts to clarify them for him and in the winter of 1966 reviewed the list of his holdings with him at his request. She maintained that her Uncle’s health was faulty and she related an incident when he put papers in a safebox at Rachel’s and then became upset when he felt he had mislaid them. It was her view that he was confused in November of 1968, had been suffering from blackouts by his own admission to her, and was suffering from senility when she next saw him in November of 1969. She traced the change in his condition from the winter of 1966 when she noticed he was forgetful at times and confused about finances but his memory was quite good, to 1968 when she found him “much spottier” and was a little shocked by the physical and emotional changes. She found his memory then somewhat vivid for events of the distant past but no good re those of the day before. She gave incidents related to his concealing money and making insurance payments only to be confused and forgetful the very next day. The progressively worsening conditions she had observed in her view rendered her Uncle incapable of adequately managing his affairs or giving instructions for a Will in the Spring of 1969.

At this juncture I might also make reference to her testimony concerning her Uncle’s complaints during her unsuccessful attempts to interview him privately at the Rehabilitation Center Annex. It is of some significance that he asked her to communicate with Mr. C, which she did, and her testimony related to his request that she “get rid of the gang of vultures” around him is revealing. Granted, these events occurred in November of 1969 but they confirm the evidence of the high regard he held for Dorothy Ann Waring which came from Mrs. O’Brien and several other witnesses.

Again the comment “You’re still my girl — there are no changes” evinces a sentiment completely incompatible with his avowal to Solicitor C May the 3rd, 1969. Harvey J. McMillan and Ivan McMillan, both nephews of the Testator, gave evidence that they saw him regularly from November of 1968 until January of 1969 when he moved to his brother Leonard’s and his visits abruptly ceased. They both considered themselves close friends of their Uncle but after January of 1969 his attitude was strange in that he ignored them and failed to speak on chance meetings. In general they felt his mental condition was all right up to January of 1969 although it was apparent “he was slipping” and “could not recall present times betimes”. They both lived in close proximity to both the home of Bob and Rachel and Leonard’s.

Muriel Wall testified that the Testator’s memory had not been too good in November of 1968 and remembered his asking her of the year and date of his wife’s death, which had occurred in 1965. The Reverend Mr. O’Brien, the Pastor of a Pentecostal congregation in Horton Township, gave evidence that he had known the Testator as an adherent of his church. He showed considerable interest in the affairs of the congregation, contributed financially, assumed responsibility for certain repairs and was accepted on the Church Board although he never joined. This warm association also ceased in January of 1969. In the Pastor’s words “I approached him a few times as he never visited me but he didn’t seem free to answer”. In the Fall of 1968 he was quite certain that Hugh Emerson Mullins was quite capable of managing his own business affairs but in June of 1969 he felt the Testator was failing as he did not “seem on the ball in conversations”.

Lena McRae and Leonard Jones testified that on some six or seven occasions from 1964 on they had driven from Ottawa to visit Hugh at Rob and Rachel’s. It was their opinion that he was very forgetful but the truly significant feature of their evidence relates to a visit they made to Leonard’s home in May of 1969. On this occasion Leonard Jones drove Lena to the home and remained in the car outside while Lena sought Hugh in the house. A few minutes later Lena and Hugh came out to the car to chat. Within moments Leonard Mullins, his wife and his daughter descended upon them and rudely requested their immediate departure. This painful scene completely flabbergasted and confused the Testator and provoked only an embarrassed reaction of resignation. This is ample evidence of pre-existing difficulties between the families involved which perhaps goes some distance to dispel the rather odious inferences this unfortunate event provoked. But I am more concerned with the abject failure on the part of the Testator to take exception to such unseemly behaviour to his guests.

Here is a man who but four months before outspokenly denounced the behaviour of some relatives by marriage of his sister Rachel, thereby terminating his once happy association with his brother and sister. On this occasion when visitors and friends seek him out at his brother Leonard’s home, where he was a paying guest, and are rudely rejected by conduct which constituted an affront to him as well as to them, he meekly accepts the insult and is incapable of any virile reaction.

In MacGregor vs Ryan, [1965] S.C.R. 757 at 760, 53 D.L.R., (2d) 126 at page 133, Ritchie, J. refers to the language of Baron Parke in Barry vs Butlin (1838), 2 Moo. P.C. 480 at pp. 482-3, 12 E.R. 1089, where His Lordship formulated the following rules:

“(1) The onus probandi lies in every case upon the party propounding a Will; and he must satisfy the conscience of the Court that the instrument so propounded is the last Will of a free and capable testator …

(2) If a party writes or prepares a Will, under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the Court, and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true Will of the Deceased.” The second of these rules was stated with added force by Lord Hatherly in Fulton vs Andrews (1875), L.R. 7 H.L. 448 at pp. 471-2, where he referred to the nature of the onus lying upon the proponents of a Will under such circumstances in the following terms —

But there is a further onus upon those who take for their own benefit, after having been instrumental in preparing or obtaining a Will. They have thrown upon them the onus of showing the righteousness of the transaction.”

The same rule has been restated in a number of cases, most of which are referred to in the judgment of Crocket, J. in Riach et al. v. Ferris (1935), 1 D.L.R. 118 at p. 122, (1934) S.C.R. 725, in which case Sir Lyman P. Duff, C.J.C. (at p.119) expressly adopted and approved the principle as stated by Davey, L.J. in Tyrrell vs Painton, (1894) P. 151, at pp. 159-60, where it was stated in this form:

“… the principle is, that wherever a Will is prepared under circumstances which raise a well-grounded suspicion that it does not express the mind of the Testator, the Court ought not to pronounce in favour of it unless the suspicion is removed.”

In my view there are many circumstances in the case at bar which give rise to that kind of suspicion. The Testator was a man of seventy-eight years, subject to ailing health at the pertinent time; his previous disposition distributed the residue of his property equally among his brothers and sister and made provision for the niece of his wife for whom he had a continuing affection; the instructions for the Will were given to the solicitor in the presence of the son of the main beneficiary who was also named as executor; in the new Will his brother Bob, his sister Rachel and Dorothy Ann Waring were cut off from an bequest; and finally, on all of the evidence the Testator’s absorption into the family of his brother Leonard in January of 1969 resulted in such a marked transformation in his manner of living, his associations and his habits to give rise to well founded concern — a concern that it buttressed and re-enforced by a formidable body of evidence indicating an openly aggressive attitude on the part of Leonard Mullins family to insulate the Testator from any private contact or intercourse with other reasonable objects of his affection and interest.

On all of the evidence I find that the suspicion provoked in my mind by these circumstances has not been removed. Sir J. Hannen’s remarks quoted with approval by Roach J.A. in Re Price, Spence vs Price, 1946, O.W.N. 80 at page 84:

“I desire particularly now, and throughout the consideration which you will have to give to this case, to impress upon your minds that, in my opinion, this is eminently a practical question, one in which the good sense of men of the world is called into action, and that it does not depend on scientific or legal definition.”

In adopting a practical consideration to determining whether this Testator had a “disposing mind and memory” we must assess the evidence in the sense defined by Rand J. in Leger vs Poirier, (1944) 3 D.L.R., at pp. 11-2, (1944) S.C.R. 152, where he said:

“A ‘disposing mind and memory’ is one able to comprehend, of its own initiative and volition, the essential elements of will-making, property, objects, just claims to consideration, revocation of existing dispositions and the like …”

Of considerable significance to this issue is of course the evidence related to the discussions in the Solicitor’s office on May the 3rd, 1969. The Law imposes a heavy burden on a solicitor confronted with circumstances such as existed here and the conduct of his inquiries and the responses thereto must be minutely surveyed to divine from the vantage point of hindsight how free and unfettered was the mind of the Testator.

The interview occupied some two hours, was conducted in the presence of the son of the main beneficiary, one of the named executors, and in the words of the Solicitor was mainly devoted to the eliciting of background material. My review of the six pages of notes filed as Exhibit No. 3 indicates that immediately subsequent to an enquiry interjected by Lloyd Mullins, a monologue related to the quarrel with his sister Rachel occupies some two pages, and then at the top of page five it is recorded that “Lloyd says up to you — when Hugh Emerson Mullins turned to him. Balance to Leonard — (except $2,000.00 to Zella Mary)”.

The Court finds it difficult to reconcile this portion of the notes with Lloyd Mullins avowed lack of prior knowledge of the purpose of the excursion. A reasonable interpretation indicates this query triggered a reaction which could reasonably be anticipated by anyone cognizant of the Testator’s attitudes to his brother and sister. Again the impression emerges from this narrative that the Testator was not exercising a “disposing mind and memory” but was seeking a consensus with the views of an interested party. It can readily be appreciated that this exchange would be deemed innocuous by anyone unaware of all of the circumstances dating from January 21st, 1969, but at the very least it adds substance to the suspicion that Hugh Emerson Mullins did not possess the grasp of the situation so essential to the proper exercise of testamentary disposition.

Again, certain of the information proffered by the Testator on the 3rd of May, 1969, gives the Court cause for concern.

Page one of the Solicitor’s notes filed as Exhibit No. 3 state as follows:

“Have given daughter? Lot of money … she has had over $25,000.00 … $30,000.00. Has $5,000.00 Canada Life Policy

… leaving it to daughter.” In her evidence Dorothy Ann Waring maintained she had never received a cent from her Uncle Hugh but allowed she had inherited $10,000.00 from the sale of property under her late Aunt’s Will. I need not reiterate the regard I hold for the testimony of Mrs. Waring, and I have no hesitation in accepting it upon this most vital question. Whatever the cause I am persuaded that on this vital point the Testator’s memory was so defective as to effectively negate the presence of that “disposing” instrument so essential to the preparation and execution of a valid instrument.

Again the notes reveal that the Testator either was unable to divulge or refrained from divulging the extent of his assets. The following portion of the notes:

“Had Will before, quite a bit of money with it. Sister and Lloyd’s Dad and Bob & niece Dorothy Rachel divided between four equally.”is distinguished by the fact that the niece’s name is mis- stated as “Dorothy Rachel” which perhaps can be explained as a recording error, but gives no hint as to his holdings. “Quite a bit of money” is a rather nebulous phrase connoting different interpretations in Horton Township and in fact anywhere in the civilised world, and an intelligence which afforded little guidance to the Solicitor C in assessing the magnitude of the change contemplated by this man of seventy-eight years. Had he been aware that his assets totalled some $105,000.00 I feel certain that a more exhaustive enquiry into the vital questions he indeed pursued would have resulted. Was the Testator aware of the real extent of his holdings on the 3rd of May, 1969? Or was he merely suppressing his intelligence with a guile so characteristic of the folk of the Ottawa Valley? It is not the duty of this Court to speculate and another cloud encumbers a scene that must be distinguished by brightness and clarity to satisfy the onus confronting the proponents.

Again, did the presence of Lloyd Mullins inhibit the enquiry so vital to this issue? I am loathe to be critical of a solicitor who rightfully enjoys the respect and regard Mr. C is accorded in the Ottawa Valley, but it is difficult for the Court to accept that such an investigation can be pursued other than in complete privacy. In my considered view his presence materially weakens the effect to be given to this portion of the Plaintiff’s testimony and poses a further obstacle in the path of those seeking to propound this Will.

Whatever the effect of my findings on the suspicious circumstances herein I hasten to assert that these circumstances fall far short of proof of undue influence because there is no evidence of active interference or coercion. Nonetheless, the cumulative effect of the evidence of ailing health, faulty memory, lack of control re personal affairs, episodes of confusion and distress, coupled with the drastic change in his personal habits and pursuits dating from January the 21st, 1969, persuades me that with his removal from usual haunts his mind had become remote from the reality of his circumstances vis-a-vis those matters so vital to a “disposing mind and memory”. In so finding, my conclusions fly in the face of the testimony of the doctor and solicitor, but in my view their observations and conclusions were limited and inhibited … capacity not being an immediate concern of Dr. B and the seemingly reliable conclusions emanating from Mr. C’s sole interview now are challenged in one material respect and of questionable validity in the light cast by hindsight.

In Murphy vs Lamphier 31 O.L.R. 287 Chancellor Boyd makes a pertinent comment on page 295 when he says:

“In 1828, Sir John Nicholl pointed out a great and not uncommon error — which is perpetuated in the case at hand — namely, “to suppose that because a person can understand a question put to him and can give a rational answer to such question, he is of perfect, sound, mind, and is capable of making a Will for any purpose whatever, whereas the rule of Law, and it is the rule of common sense, is far otherwise: the competency of the mind must be judged of by the nature of the act to be done, and from a consideration of all the circumstances of the case:’                      — Marsh vs. Tyrrell (1828) 2 Hogg. Ecc 84, 122.”

The circumstances of this case prohibit my saying judicially that the Testator thoroughly understood the effect of the Will of the 3rd of May, 1969, and deliberately intended it to have that effect. The application to propound this Will will therefore be dismissed. The parties shall have their costs payable out of the Estate, those of the Executors to be on a solicitor-client basis.

There are two additional factual matters that should be mentioned. The previous will of the testator was executed on April 12, 1968, and was prepared by an attorney in Detroit. It bequeathed to the respondent (correctly describing her as “my wife’s niece”) all of the stock owned by the testator in five named corporations. At the date of his death the testator still owned shares in all five of those corporations; the shares had a value of $11,009.96. The residue of his estate was given in equal shares to his brother Leonard Mullins, his sister Rachel Mullins, and his brother Robert Mullins, with a gift over, in the event of either Rachel Mullins or Robert Mullins predeceasing him, of the share of such person to the surviving children of Howard Highland. It is clear that the solicitor C either was not given the correct information by the testator when the solicitor inquired about the terms of the former will, or else misunderstood what he was told. There is no indication that he was told that shares worth $11,000 had been bequeathed to the respondent. The solicitor’s notes would seem to indicate that he thought the respondent was one of the four residuary beneficiaries who were to share equally in the residue.

In addition, it appears that after the testator had returned to the County of Renfrew, he transferred a very large amount of cash ($87,751 at the date of his death) into the joint names of himself and his brother Leonard. The appellant Lloyd Mullins, son of Leonard, although a banker, professed not to know why this transfer had been made into the joint names, although he had assisted his uncle when the funds were brought from Detroit and deposited in a Canadian bank. Leonard Mullins himself was not asked about the joint account but nowhere in the evidence does any practical reason appear for the opening of a joint account by the testator.

Counsel for the appellants made two principal submissions:

(1)In considering the question of the testamentary capacity of the deceased, the trial Judge erred in considering the testator’s capacity at a time other than the time of the making of the will.

(2) The trial Judge erred in finding that this was a case in which there were “suspicious circumstances” (as that phrase is used in the decided cases), the onus of removing which was on the appellants.

In support of the first point, reference was made to Williams & Mortimer on Executors, Administrators and Probate (1970), p. 141, and to Pocock v. Pocock et al., [1950] O.R. 734 at p. 736. In my view, the trial Judge did not misdirect himself in his approach to the facts of this case, nor did he take into account matters of fact which he ought not to have considered. While the ultimate probative fact which a Probate Court is seeking is whether or not the testator had testamentary capacity at the time of the execution of his will, the evidence from which the Court’s conclusion is to be drawn will in most cases be largely circumstantial. It is quite proper to consider the background of the testator, the nature of his assets, his relatives and others having claims upon his bounty, and his relationship to them, and his capacity at times subsequent to the execution of the will, to the extent that it throws light upon his capacity at the time of the making of the will. Proven incapacity at a later date obviously does not establish incapacity at the time of execution of the disputed will, but neither is that fact irrelevant. Its weight depends upon how long after the crucial time the incapacity is shown to exist, and its relationship to matters that have gone before or arose at or near the time of the execution of the will itself. I would not give effect to this ground of appeal.

On the second point — “suspicious circumstances” — counsel for the appellants made two related submissions. In the first place, he submitted that the application of the doctrine is confined to circumstances relating to the actual preparation and execution of the will. In other words there is a “cut-off” date behind which one cannot go, that date being when “preparation” begins. The second branch of this submission was that the doctrine is only to be applied in cases where the person preparing or giving instructions for the will is a person who takes a benefit under it.

The doctrine which, for convenience I have called “the suspicious circumstances principle” did not originate with the case of Barry v. Butlin (1838), 2 Moo. 480, 12 E.R. 1089 (P.C.), but was there stated by Baron Parke in a passage which has been quoted literally hundreds of times since. As noted by the trial Judge, the passage was quoted by Ritchie, J., giving the judgment for four members of the Court in MacGregor v. Ryan, [1965] S.C.R. 757 at p. 760, 53 D.L.R. (2d) 126 at pp. 133-4 (see above). Ritchie, J., went on to discuss the pronouncement of Lord Hatherley on the second rule in Fulton et al. v. Andrew et al. (1875), L.R. 7 H.L. 448 at pp. 471-2, and referred to Riach et al. v. Ferris, [1934] S.C.R. 725, [1935] 1 D.L.R. 118, in which Sir Lyman Duff had (in the words of Ritchie, J.) “expressly adopted and approved” the principle stated by Davey, L.J., in Tyrrell v. Painton et al., [1894] P. 151 at pp. 159-60 (quoted in the trial judgment herein — see above):

… the principle is, that wherever a will is prepared under circumstances which raise a well-grounded suspicion that it does not express the mind of the testator, the Court ought not to pronounce in favour of it unless the suspicion is removed.

Ritchie, J., continued:

If a will has been shown to have been duly executed after having been read over to or by a testator who appears to understand it, then it will generally be presumed that he had testamentary capacity at the time of its execution but if, in the course of proving the will, it becomes apparent that there are circumstances raising a well-grounded suspicion as to whether the document indeed expresses the true will of the deceased, then a heavy burden lies on the Court to look beyond the presumption created by compliance with these formalities and be satisfied that the will was the free act of a testator who at the time had a “disposing mind and memory” in the sense defined by Rand J. in Leger et al. v. Poirier, [1944] S.C.R. 152 at 161.

(which Ritchie, J., then proceeded to quote).

At p. 765 S.C.R., p. 138 D.L.R., of MacGregor v. Ryan, supra, Ritchie, J., pointed out the distinction between producing sufficient evidence to satisfy the Court that a suspicion raised by the circumstances surrounding the execution of the will had been dispelled, and producing the evidence necessary to establish an allegation of undue influence, and set out upon whom the burden lay with respect to each of these issues. (There is a passage in his judgment at p. 767 S.C.R., p. 140 D.L.R., in which Ritchie, J., and I say this with great respect, appears to consider certain suspicious circumstances from the standpoint of whether or not they constituted grounds for a suspicion that undue influence had been exercised; this appeal fortunately does not turn upon the interpretation of that passage.)

In my view, the cases make it clear that the doctrine is not confined to situations in which a beneficiary was instrumental in the preparation of the will. The statement of the principle by Davey, L.J., in Tyrrell v. Painton, supra, quoted by Ritchie, J., and reproduced above goes a long way towards demonstrating this and the paraphrase of that passage by Ritchie, J., himself at the same page makes it even clearer. At p. 766 S.C.R., p. 139 D.L.R., Ritchie, J., said:

In the case of Barry v. Butlin, supra, and in most of the cases which have followed it, including the case of Wintle v. Nye, [1959] 1 All E.R. 552, upon which much reliance was placed by the appellant, the circumstances giving rise to suspicion were that a person who benefited under the will in question had actually prepared the document, but it is apparent from the decision in Tyrrell v. Painton, supra, that any well-grounded suspicion is sufficient to put the Court on its guard to scrutinize the circumstances so as to ensure that it has been put at rest before deciding in favour of the will.

Even before this pronouncement was made, there was a judgment of this Court which I think is decisive on the point. In Lucier v. Lynch et al., [1947] O.R. 30, [1947] 1 D.L.R. 830, Robertson, C.J.O., at p. 39 O.R., p. 837 D.L.R., quoted the passage from Davey, L.J., and held that the evidence in the case before him did raise “such a well-grounded suspicion”. This was said notwithstanding that at p. 38 O.R., p. 836 D.L.R., Robertson, C.J.O., said:

There is no evidence whatever as to the preparation of a will, except the document itself.

At p. 32 O.R., p. 831 D.L.R., he had said:

The alleged will bears date the 25th April 1945. It is on a printed form, in which certain particulars, including the date, have been filled in on a typewriting machine. Not all the blanks in the form are filled in that one expects to see filled in, and as there is no evidence as to when, or by whom, the document was prepared, there is reason for supposing that it was not prepared by one who had experience in the drawing of wills.

[Emphasis added.] While it is true that the facts in the case disclosed a strong case of suspicious circumstances, the case was decided upon the failure of the appellant proponent to remove the suspicions, and not upon the respondents’ allegation of undue influence.

Henderson, J.A., agreed with Robertson, C.J.O. Hogg, J.A., in a separate judgment concluded it as follows (at p. 44 O.R., p. 841 D.L.R.):

I have reached the conclusion upon the whole of the evidence that “the conscience of the Court” is not satisfied, because of the circumstances which were present surrounding the making of the will in question, that it was, in the words of Parke, B., “the last will of a free and capable testator”

…I think it is clear, however, that when Hogg, J.A., was speaking of “circumstances which were present surrounding the making of the will in question”, he was speaking of circumstances which were “surrounding”, but not part of, the preparation and making of the will in question.

It is quite true that even a cursory reading of the cases based on the “suspicious circumstances” doctrine reveals that most of them have in fact been cases where a person taking substantial benefit under the will has been instrumental to some degree in its preparation or execution, or both.

Nevertheless, while such participation is obviously an important factor which may frequently give rise to “suspicion”, it is not the only factor which will bring the doctrine into play. Furthermore, I do not accept the proposition that the “beginning of preparation” of the will is the boundary beyond which one cannot go in seeing whether there are suspicious circumstances. Facts antecedent to the actual preparation of the will in question may well throw much light upon the events and circumstances under which the will was later executed.

Much reliance was placed by the appellant on the judgment of Willmer, J., in Re R., [1951] P. 10, which was given on a motion by way of appeal from an order of the Registrar refusing to strike out certain allegations in the pleadings in a probate action. After discussing the rule in Barry v. Butlin, supra, and its approval and application in Fulton v. Andrew, supra, Willmer, J., said at pp. 16-7: With one exception, to which I will presently refer, in all the subsequent cases in the reports in which the rule in Barry v. Butlin has been applied, the circumstance giving ground for suspicion has been the fact that the will was prepared, or its execution procured, by a person taking a benefit under it. The exception is Tyrrell v. Painton, [1894] P. 151, where the will was prepared by the son of the defendant, the defendant being the person in whose favour the will was made. In that case the Court of Appeal held that the rule in Barry v. Butlin, 2 Moo. P.C. 480, [1894] P. 157, is not, to quote the words of Lindley L.J., “confined to the single case in which a will is prepared by or on the instructions of the person taking large benefits under it, but extends to all cases in which circumstances exist which excite the suspicion of the court”. Lindley L.J. however, went on to make it clear that the circumstances to which he was referring must be circumstances attending the preparation or execution of the will, for a few lines lower down he said: “Here the circumstances under which the will of the 9th was prepared and signed are such as to cause the gravest suspicions”. In a previous passage, Ibid. 156, he had said substantially the same thing. A.L. Smith L.J. speaks Ibid. 158 of “the grave suspicions surrounding the will”, and a little later uses the significant phrase, “especially a will brought into existence as this will was”. Davey L.J. neatly and concisely sums up the rule which the Court of Appeal were laying down in the following words Ibid. 159:  “The principle is, that whenever a will is prepared under circumstances which raise a well-grounded suspicion that it does not express the mind of the testator, the court ought not to pronounce in favour of it unless the suspicion is removed”.

The conclusion which I draw from these authorities to which I have referred is that, when it is a question of knowledge and approval of the contents of a will the circumstances which are held to excite the suspicions of the court must be circumstances attending, or at least relevant to, the preparation and execution of the will itself.

This view of the narrow limits of the application of the “suspicious circumstances” principle is one which I am unable to reconcile with the judgment of the Supreme Court of Canada in MacGregor v. Ryan, supra, or with that of our own Court in Lucier v. Lynch, supra. I therefore respectfully decline to adopt it. I am aware that the late Dean C.A. Wright in a commentary found in 16 Can. Bar Rev. 405 (1938), appears (without discussion by him) to regard the Barry v. Butlin rule as applicable to a situation where the person who draws the will is himself a beneficiary. The commentary was written before either of the last-mentioned Canadian cases was decided. It follows that I prefer the wider statement in Macdonnell, Sheard and Hull, Probate Practice, 2nd ed. (1972), by Rodney Hull, Q.C., p. 26 (1st ed. (1953), p. 24), as follows:

A not uncommon, and very difficult, class of case is that in which the will propounded was prepared, or its preparation obtained, by someone who takes a substantial benefit under it, or in which there are other circumstances tending to make the Court suspect that the document is not the true will of the deceased.

There are in the reasons for judgment of the trial Judge clear findings of fact on questions of credibility. With those findings this Court cannot interfere. Reading the evidence in the light of the findings, both favourable (as to the respondent) and unfavourable (as to the appellants’ witnesses), it is quite impossible to say that the trial Judge was “clearly wrong” in the conclusion which he reached. On the contrary, there is strong support for the view which he took of the facts in this matter. There were a number of “suspicious circumstances”, many of which were unexplained, or were explained in a way which the trial Judge did not accept; some related to the preparation of the will, others did not. At the end of the case, against the background of the findings on credibility, the suspicions were not removed.

The appeal should therefore be dismissed. The trial Judge allowed the costs of all parties out of the estate of the testator. This was, I think, a perfectly proper order, because the executors had a duty to bring forward what purported to be the last will of the testator. I do not think their duty extended to appealing from the adverse finding against the will, particularly when one of the appellants was a son of a principal beneficiary, and had himself been a participant in the circumstances leading up to the execution of the will in respect of which probate has been refused.

I would therefore dismiss the appeal with costs against the appellants, who are not to have recourse to the assets of the estate in this regard.

Appeal dismissed.