Forrest v. Forrest Estate

Forrest v. Forrest Estate Court Supreme Court Date 2025-10-02 Citation 2025 NSSC 314 Docket Syd No. 535009 Judge/Registrar/Adjudicator Chipman, James L. (Honourable Justice) Document Type Decision Decision Content SUPREME COURT OF NOVA SCOTIA (In the Probate Court of Nova Scotia) Citation: Forrest v. Forrest Estate, 2025 NSSC 314 In the Estate of Darlene Forrest, Deceased Date: 20251002 Docket: Syd No. 535009 Probate Court Docket : 25906 Registry: Sydney Between: Donald Joseph Forrest Applicant v. The Estate of Dorothy Darlene Forrest Respondent D E C I S I O N Judge: The Honourable Justice James L. Chipman Heard: September 3 and 4, 2025, in Sydney, Nova Scotia Written Decision: October 2, 2025 Counsel: Christopher T. Conohan, for the Applicant Danielle Arseneau, for the Respondent By the Court: Introduction [1] By Notice of Application filed February 24, 2025, The Applicant moves for an Order declaring that the transfer of two motor vehicles by the testator Dorothy Darlene Forrest to the personal representative Ernest Devoe is an invalid inter vivos gift. [2] The Applicant relies on his affidavits filed February 13 and August 29, 2025, along with the affidavits of the following individuals filed on the given dates: • Nancy Devoe –February 13, 2025 • Glen MacLean –February 13, 2025 • Donald Devoe –February 13, 2025 • Alexander Devoe –February 13, 2025 • Myra MacDonald –August 29, 2025 • Debbie Brown –August 29, 2025 [3] The Respondent, Ernest Devoe relies on his affidavit and the affidavit of his wife, Leisa Devoe both filed May 30, 2025. [4] During the two-day hearing each of the affiants were cross-examined and by consent one additional witness was called, Andrea Rizzato. As well, four documents were entered by consent as exhibits. [5] In addition to the evidence, the Court received briefs and authorities together with oral submissions from the parties. Further, the Court received an April 16, 2025 brief and accompanying authorities from the Proctor of the Estate, Duncan H. MacEachern. Background [6] The testator, Dorothy Darlene Forrest (Dorothy) died on May 5, 2023. Born on April 29, 1961, Dorothy was 62 years of age when she died of cancer. [7] Pursuant to her last will and testament dated October 27, 2022 (Dorothy’s Will) she appointed one of her brothers, the Respondent Ernest Devoe (Ernie) as well as her only child, the Applicant Donald Joseph Stanley Forrest (Joey) to be co-executors. Dorothy’s Will provided that “…the rest of the residue” of her Estate would pass to Joey. In the event that Joey predeceased her, Ernie would be the sole beneficiary. [8] Dorothy’s husband, Joseph Stanley Forrest predeceased her. Following his death, title to the two vehicles which are the subject of this motion were put in Dorothy’s name. The vehicles are antique and April 16, 2024 appraisals valued the 1938 Chevrolet Sedan Deluxe at $12,000.00 and the 1957 Chevrolet Belair at $15,000.00. [9] On February 27, 2023 Dorothy transferred ownership in both vehicles from herself to Ernie. What has been referred to as an “inter vivos gift” (transaction made while the parties are living), was actually a sale for $1,000.00 as Ernie paid Dorothy $500.00 for each vehicle on February 24, 2023. Main Issue [10] The key issue for determination is whether the transfer of the two vehicles was a valid inter vivos transaction. Evidence Andrea Rizzato [11] Ms. Rizzato has been practicing law in Nova Scotia for twenty years. She prepared Dorothy’s Will. She appeared by subpoena and with the consent of the parties, the Court directed her to waive solicitor-client privilege so as to answer relevant questions from both counsel. [12] Ms. Rizzato brought Dororthy’s file, which she reviewed in advance of her testimony. She prepared Dorothy’s Will on Dorothy’s instructions received on October 27, 2022 at her office. Ms. Rizzato’s notes disclosed that Dorothy’s major assets were: • the family home • vacant land adjacent to the family home (subject to a mortgage) • the two antique cars [13] Ms. Rizzato testified that she would have provided Dorothy with her standard advice of “how to avoid the necessity of probate”. This would include “that you can add a person to the vehicle, you have to go to Access Nova Scotia”. Ms. Rizzato disclosed that her notes included, “son will go to Access Nova Scotia to add his name …I’m going to do a Deed to add Joey …everything to Joey”. Asked about other references in her notes reading “his”, Ms. Rizzato could not say who this meant. [14] Ms. Rizzato’s notes disclosed that she visited Dorothy in hospital on April 27, 2023 with respect to a Deed. Ms. Rizzato found her to be “not well”. Ms. Rizzato subsequently had to declare a conflict as evidenced by her May 8, 2024 letter to the Proctor of Dorothy’s Estate, which reads in part: In March of 2023, I was retained by Dorothy Forrest to open the Estate of her late husband, Josephy Stanley Forrest. … Issues arose between Donald Joseph Stanley Forrest and Ernest Devoe. Mr. Devoe was the surety for Mr. Forrest and this created a conflict for me. I was unable to continue representing Mr. Forrest in this matter. [15] On cross-examination Ms. Rizzato said that she could not recall if she advised Dorothy about an inter vivos transaction. With regard to vehicles, she said that her practice would be to tell a client to “go to Access Nova Scotia to add someone to title so there would be no probate later”. She added that Dorothy asked for Ernie to be a co-executor and alternate beneficiary. She stated, “it seemed pretty standard to me, name your only child first and someone you trust second”. She said that her practice would be to discuss single versus co-executors. [16] Although Dorothy was not well, Ms. Rizzato noted that Dorothy wanted to sign the documents that Ms. Rizzato brought during her April 27, 2023 hospital visit. Indeed, Ms. Rizzato had prepared a second set of documents for Joey to sign; however, these were not required. Ms. Rizzato said that although Dorothy “was physically unwell”, there was no issue with Dorothy’s capacity when she signed the documents. The Applicant and His Affiants [17] Joey and the six affiants gave evidence that may be distilled as follows: • Dorothy was very close to her only child, Joey • Dorothy let it be known that when she died Joey would get everything, including the cars • Donald Devoe went further recalling that Joey’s late father gifted one of the cars, “the red classic car” shortly after Joey graduated from high school • Joey also deposed that the 1938 Chevrolet Sedan Deluxe was given to him upon graduation by his father • He added that on her last birthday – April 29, 2023 – that his mother “repeated that the cars were mine” • She also told him that if the bills became too much that he could sell the ’57 Chevrolet, which she believed was more valuable than the other car • When Joey’s father died Dorothy put the vehicles in her name • Dorothy gave the cars to Ernie for safe keeping or temporarily, but the cars would ultimately go to Joey • Dorothy did not drive or have a license • Dorothy placed insurance on the cars in both her name and Joey’s and the insurance was paid for by Joey • While in hospital Dorothy was “in and out” such that she did not always understand what was going on • Various relatives kept in contact (over the telephone and by visiting) with Dorothy over the years leading up to her death • For many years the cars were kept in a garage on Dorothy’s property • Within days of Dorothy’s death, Ernie removed the cars from Dorothy’s garage • In the days before Dorothy’s death there was an incident at the hospital where Dorothy was a patient which led to Ernie being taken away from the hospital in handcuffs by police • Joey was aware that Dorothy’s Will gave her entire Estate to him • Dorothy had 13 siblings (including her twin, Donald Devoe); when she died 10 were living • Ernie and Leisa Devoe were not overly close with Dorothy • While in hospital Dorothy was in a vulnerable state • Ernie was very demanding and domineering with his late mother • Prior to her hospital admittance, Ernie and Leisa Devoe did not frequently visit Dorothy • Prior to his ejection Ernie had tried to control hospital access to Dorothy • Ernie, with the aid of his wife, was forceful and domineering with Dorothy while she was in a vulnerable state • The cars were worth considerably more than the appraisals obtained by Ernie from a business where Ernie’s son works. [18] Through cross-examination it was confirmed that the Applicant’s affiants are not on good terms with Ernie and his wife. The family dispute which pitted most of his siblings against Ernie dates back to when he was the sole executor of their mother’s Estate. [19] As for the evidence that Dorothy was in a “vulnerable state”; this was clarified to be at times when she was in hospital. When asked, the affiants acknowledged that Dorothy was “in and out” (of consciousness) on account of the medication she was taking. As Donald Devoe acknowledged, when Dorothy was awake, “she could keep her focus”. [20] Donald Devoe’s wife, Nancy Devoe gave perhaps the harshest oral evidence concerning the Respondent; “Dorothy did not realize until that day (April 29, 2023) how she felt that Ernie had bamboozled her basically”. Nancy Devoe maintained that on her death bed, Dorothy told her that she just realized that Ernie had taken advantage of her. Nancy produced notes (exhibited to her affidavit and a larger version marked as an exhibit) which she said Dorothy wrote out in her presence on April 29, 2023. With respect to the vehicles, item no. 6 of the first note reads: Joey if you have to sell it [the cars, according to Nancy Devoe] to pay my bills off 57 but you won’t have to The second note is nearly identical, reading: Joey if you have to sell the 57 to pay my bills off but you won’t have to [21] Nancy Devoe testified that Dorothy wrote the second note because she was “not pleased with her penmanship” on the first note. [22] When pressed on cross-examination, Nancy Devoe maintained that Dorothy said “bamboozled” and that it pertained to things Ernie had done, dating back a number of years. Indeed, Nancy Devoe recalled that one of the issues related to Ernie having arranged for their mother (Nancy’s mother-in-law) to be placed in a nursing home and Ernie being designated as Power of Attorney. [23] On re-direct examination Nancy Devoe said that she spoke with Ernie about the cars; “Ernie mentioned the vehicles because they didn’t want Brenda MacLean (Joey’s mother-in-law) to get her hands on the vehicles, so they said they had recently purchased them”. Nancy Devoe added that she did not ask Dorothy about this because, “she was not in good shape at all, she was in and out of semi-consciousness”. [24] On cross-examination Joey acknowledged that neither vehicle had ever been put in his name. He agreed that the cars were exclusively owned by his mother from 2019 until 2023. He agreed that he had only driven one of the cars and that this was when his father was alive. [25] Joey said that his mother was “in and out, …she said you have no worries”, regarding the vehicles. Joey reviewed the registration documents in Ernie’s affidavit, nevertheless holding the view, “he was just holding them for me until mom passed”. [26] Joey said that he saw his mother frequently and spoke with her on the telephone “everyday”. He allowed, “from talking to mom I knew the vehicles were in Ernie’s name”. Asked why Ernie was a co-executor, Joey replied “at that time she trusted him”. Joey felt that his mother was closer to her twin brother, Donald than Ernie. He said that Dorothy never explained why she chose Ernie as co-executor and alternate beneficiary. The Respondent and His Wife [27] Ernie and Leisa Devoe gave evidence that may be distilled as follows: • They were close with Dorothy • Ernie worked seasonally in Alberta for 15 years but kept in contact with Dorothy • They frequently visited her in her home and after she was hospitalized • Dorothy had full capacity and had charge of her own affairs • On February 24, 2023 Dorothy offered to sell each of the cars for $500.00 to Ernie • Dorothy did not want Joey to have the vehicles as she knew he would sell them and she did not want that • Dorothy expressed concerns about Joey’s behaviour, and this affected their relationship • Ernie was close with Dorothy’s late husband and they were both classic car enthusiasts • They were never aware of Dorothy promising the cars to Joey • While in the hospital, Dorothy informed Joey that she had “given” the cars to Ernie • Dorothy never said to Ernie that she wanted him to hold the vehicles in trust for Joey [28] On cross-examination both Leisa Devoe and Ernie maintained they had a close relationship with Dorothy. They denied that Dorothy was in a vulnerable state at the material times. [29] Both Ernie and Leisa Devoe testified that Ernie removed the cars from Dorothy’s garage in the days leading up to Dorothy’s death but that there was nothing nefarious about this. Indeed, Ernie testified that he did this owing to concerns he had about Joey’s mother-in-law damaging the vehicles. [30] Both the Respondent and his wife confirmed that there were fractures in the Devoe family dating back to the time when Ernie’s mother died. Reliability and Credibility [31] I am alive to the reliability and credibility of the ten witnesses who testified. Albeit in the context of a criminal case, our Court of Appeal reviewed principles surrounding credibility and reliability findings in R. v. Stanton, 2021 NSCA 57. Justice Derrick set out these principles at para. 67: [67] Before embarking on an assessment of the trial judge's reasons to determine whether he committed legal error, I set out below the legal principles relevant to appeals where credibility is pivotal: • The focus in appellate review "must always be on whether there is reversible error in the trial judge's credibility findings". Error can be framed as "insufficiency of reasons, misapprehension of evidence, reversing the burden of proof, palpable and overriding error, or unreasonable verdict" (R. v. G.F., 2021 SCC 20, para. 100). • Where the Crown's case is wholly dependent on the testimony of the complainant it is essential the credibility and reliability of the complainant's evidence be tested in the context of all the rest of the evidence (R. v. R.W.B., [1993] B.C.J. No. 758, para. 28 (C.A.). • Assessments of credibility are questions of fact requiring an appellate court to re-examine and to some extent reweigh and consider the effects of the evidence. An appellate court cannot interfere with an assessment of credibility unless it is established that it cannot be supported on any reasonable review of the evidence (R. v. Delmas, 2020 ABCA 152, para. 5; upheld 2020 SCC 39). • "Credibility findings are the province of the trial judge and attract significant deference on appeal" (G.F., para. 99). Appellate intervention will be rare (R. v. Dinardo, 2008 SCC 24, para. 26). • Credibility is a factual determination. A trial judge's findings on credibility are entitled to deference unless palpable and overriding error can be shown (R. v. Gagnon, 2006 SCC 17, paras. 10-11). • Once the complainant asserts that she did not consent to the sexual activity, the question becomes one of credibility. In assessing whether the complainant consented, a trial judge "must take into account the totality of the evidence, including any ambiguous or contradictory conduct by the complainant ..." (R. v. Ewanchuk, [1999] 1 S.C.R. 330, para. 61). • "Assessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events ..." (Gagnon, para. 20). • The exercise of articulating the reasons "for believing a witness and disbelieving another in general or on a particular point ... may not be purely intellectual and may involve factors that are difficult to verbalize ... In short, assessing credibility is a difficult and delicate matter that does not always lend itself to precise and complete verbalization" (R. v. R.E.M., 2008 SCC 51, para. 49). • A trial judge does not need to describe every consideration leading to a finding of credibility, or to the conclusion of guilt or innocence (R.E.M., at para. 56). • "A trial judge is not required to comment specifically on every inconsistency during his or her analysis". It is enough for the trial judge to consider the inconsistencies and determine if they "affected reliability in any substantial way" (R. v. Kishayinew, 2019 SKCA 127, at para. 76, Tholl, J.A. in dissent; upheld 2020 SCC 34, para. 1). • A trial judge should address and explain how they have resolved major inconsistencies in the evidence of material witnesses (R. v. A.M., 2014 ONCA 769, para. 14) [32] With the above in mind, I found most of the witnesses generally reliable and credible. Having said this, I had difficulty with the credibility of Nancy Devoe in certain areas of her evidence. For example, I found Nancy Devoe’s reference to Ernie “bamboozling” Dorothy to lack credibility. No other witness attempted to quote Dorothy as saying anything remotely akin to this. Indeed, Nancy herself made no reference to this allegation in her affidavit. Given all of the written and documentary evidence I categorically reject Nancy Devoe’s evidence in this area. [33] I also have concerns with Joey’s evidence that Dorothy told him that the cars were given to Ernie for safekeeping or temporarily and that they would ultimately go to him. Given the totality of the evidence, including the documents demonstrating that title to the two cars was signed over by Dorothy to Ernie in late February, 2023, I cannot reconcile how Joey maintained that his mother intended the cars would go him. Indeed, the documents attached to Ernie’s affidavit confirm the sale of each vehicle on February 24, 2023. As well, the Certificates of Registration for both cars – issued February 27, 2023 – are appended to Ernie’s affidavit. [34] Nancy Devoe’s affidavit attaches the notes referenced at para. 20 of this decision. Ernie also exhibited notes penned by Dorothy in late April, 2023. Tellingly, the notes attached to Ernie’s affidavit did not mention the vehicles, albeit they stated that Joey could sell anything in the home or garages that he did not want. Preliminary Issue Was the 1938 Chevrolet Sedan Deluxe gifted to the Applicant upon his graduation from high school? [35] The Applicant and one of his uncles, Donald Devoe, stated that the 1938 Chevrolet Sedan Deluxe was gifted to Joey by Joey’s late father. The Applicant and Donald Devoe recalled a conversation to this effect between Joey and his father following Joey’s graduation from high school. [36] There are three essential elements of a gift at common law. First, the donative intent of the donor must be demonstrated. Second, there must be an acceptance of the gift by the donee. Lastly, there must be adequate delivery of the gift from the donor to the donee. [37] A gift must amount to more than a simple promise and must be immediate. There must be a completion of all three elements. In this case, it is apparent that there was never a completion of the delivery requirement. As acknowledged by Joey during cross-examination, neither of the cars were transferred into Joey’s name. Further, the cars were never delivered to the Applicant as his property. [38] Given that the gift was never perfected in the lifetime of Joey’s late father, the gift of the 1938 Chevrolet Sedan Deluxe must fail. Since the gift was never perfected, there is no weight to the argument that the deceased was holding the vehicle in trust for Joey. Main Issue Was the transfer of the two vehicles a valid inter vivos transaction? [39] Once again, there are three elements that must be present for a transfer to be considered a gift: - donative intent; - acceptance; and - delivery of the gift. [40] Joey alleges that the gift of the vehicles to Ernie is invalid for two reasons – incapacity of Dorothy and Ernie’s undue influence on Dorothy. Conversely, Ernie refers to the three elements and asserts that the cars were a validly given gift. [41] The Applicant alleges that Dorothy did not have the requisite capacity to execute the gift on February 24, 2023 when she sold Ernie the vehicles. In Raczkowski-Filliter v. Raczkowski, 2022 NSSC 64, Justice Brothers noted at para. 267: [267] The onus is on the party asserting a valid gift to prove capacity, but the defendant can rely on the presumption of capacity. The defendant must show 1) an intention by Elsie to donate; 2) an acceptance; and 3) sufficient delivery. (John E.S. Poyser, Capacity and Undue Influence, 2d edn. (Carswell 2019) at 368; St. Onge Estate v. Breau, 2009 NBCA 36). In order to meet the first branch of the test, Elsie must have had the necessary mental capacity to form an intention to donate. The question is, did Elsie appreciate the nature and effect of the transaction? [42] Accordingly, when defending a valid inter vivos gift, Ernie can rely upon a presumption of capacity. This presumption assists in demonstrating the first element of a gift, the intention of the donor to donate. [43] Having reviewed the affidavit and viva voce evidence, I find that there is nothing to rebut a presumption of capacity. Indeed, all of the evidence supports the presumption of capacity until Dorothy’s passing on May 5, 2023. Joey’s evidence and Ms. Rizzato’s testimony confirms that Dorothy had capacity to draft and sign various notes and documents less than 10 days before she died. [44] Joey alleges undue influence over Dorothy which caused the sale of the vehicles. The Applicant further argues that there is a presumption of undue influence that Ernie is required to rebut. [45] In order for the presumption to apply, the party contesting the gift must first demonstrate that there was a relationship of trust or influence between the donor and the donee. Given the evidence, I have determined that Joey has failed to demonstrate this relationship. In Raczkowski, Justice Brothers relied on Goodman Estate v. Geffen, [1991] 2 SCR 353 noting at para. 278 as follows: [278] …In Goodman Estate v. Geffen, [1991] 2 S.C.R. 353, [1991] S.C.J. No. 53, Wilson J., for the majority, considered the meaning of "influence": 42 What then must a plaintiff establish in order to trigger a presumption of undue influence? In my view, the inquiry should begin with an examination of the relationship between the parties. The first question to be addressed in all cases is whether the potential for domination inheres in the nature of the relationship itself. This test embraces those relationships which equity has already recognized as giving rise to the presumption, such as solicitor and client, parent and child, and guardian and ward, as well as other relationships of dependency which defy easy categorization. 43 Having established the requisite type of relationship to support the presumption, the next phase of the inquiry involves an examination of the nature of the transaction. When dealing with commercial transactions, I believe that the plaintiff should be obliged to show, in addition to the required relationship between the parties, that the contract worked unfairness either in the sense that he or she was unduly disadvantaged by it or that the defendant was unduly benefited by it. From the court's point of view this added requirement is justified when dealing with commercial transactions because, as already mentioned, a court of equity, even while tempering the harshness of the common law, must accord some degree of deference to the principle of freedom of contract and the inviolability of bargains. Moreover, it can be assumed in the vast majority of commercial transactions that parties act in pursuance of their own self-interest. The mere fact, therefore, that the plaintiff seems to be giving more than he is getting is insufficient to trigger the presumption. [Emphasis added by Brothers, J.] [46] Accordingly, Joey must demonstrate that there was a dominant relationship or a relationship of influence between Ernie and Dorothy. Given the totality of the evidence, I find that this has not been established. [47] Ernie was the youngest sibling of Dorothy. The overall evidence shows that he provided assistance but that Dorothy did not rely on him for her daily needs. It is apparent from all of the evidence that the relationship Ernie had with Dorothy did not meet the level of influence to trigger the presumption. [48] In Raczkowski, Justice Brothers had this to say concerning the presumption of undue influence: [283] The 2014 Will is a possible example of undue influence, as contemplated by Slover v. Rellinger, 2019 ONSC 6497. Some of the evidence in this regard includes the retaining of a new lawyer; Elsie being alone in 2014 with the defendant; and communications via an unknown email. These are all concerning, and I have considered them fully. In cases of undue influence, the courts have acknowledged that direct evidence is rarely present, and the principal evidence is often circumstantial. There was evidence given by the Plaintiff and some of the witnesses called on her behalf about phone calls Elsie took in private from the defendant. There was evidence from various witnesses about envelopes containing cheques addressed to the defendant by Elsie and mailed over time. I am not satisfied that this is sufficient to find the existence of a dominant relationship giving rise to the presumption of undue influence. Undue influence is coercion. There is no question that between the circumstances of the Gmail account and 2014 Will and secret phone calls there is some circumstantial evidence, but it does not rise to the level to satisfy me a finding of undue influence is supported. The defendant was not in a position of dominance in relation to Elsie's care as seen in some cases. I do not find it rises to the level of a rebuttable presumption of undue influence shifting an onus to the defendant. [49] Notwithstanding serious misgivings concerning the defendant’s conduct and his credibility, in Raczkowski Justice Brothers found that the plaintiff failed in their obligation to demonstrate the relationship was one where “the potential for domination inheres in the nature of the relationship itself”. [50] Upon reviewing the evidence it is clear that Ernie did not have undue influence over Dorothy. Indeed, much of the filed and oral evidence of the Applicant and his affiants suggests that there was not much of a relationship between Ernie and Dorothy. In any case, having reviewed the totality of the evidence, I reject the implication that the relationship between Ernie and Dorothy was distant. Rather, I find that Dorothy must have held her youngest sibling in high regard. Afterall, Dorothy’s Will discloses that she chose him to be a co-executor and alternate beneficiary. Dorothy made these decisions when she met with Ms. Rizzato at her office on October 27, 2022. Approximately six months later Dorothy died. [51] The evidence discloses that just over two months before she died that Dorothy sold the two cars to Ernie for $1,000.00. Given that the cars were collectively worth (at least) $27,000.00, this transaction has been characterized as a gift. In any case, there is no credible evidence demonstrating that in late February, 2023 (the date of the transaction) that Ernie exercised control or domination over Dorothy. While there were clearly tensions at the hospital, even if I accept all of the Applicant’s evidence surrounding Ernie trying to keep certain prospective hospital visitors away from Dorothy, this was not going on until the last weeks of Dorothy’s life; i.e., late April into early May, 2023. Accordingly, it cannot be credibly argued that Ernie exerted undue influence over Dorothy back when she transferred ownership of the vehicles to Ernie. [52] I would add that the Applicant has fallen far short of demonstrating that his mother did not have the requisite mental capacity to effect the transfers. In this regard, there was no medical evidence led to attempt to demonstrate that Dorothy lacked capacity. To the contrary, the overall evidence showed that Dorothy had full capacity up until the time of her death, albeit there were times when she went out of consciousness. To cite just one compelling example, Ms. Rizzato testified that Dorothy was very capable of signing legal documents during her April 27, 2023 hospital visit. [53] The notes of sale, the transfer certificates, and the receipts all issued in late February, 2023 demonstrate the intention of Dorothy to transfer the vehicles to Ernie. Further, there was a clear acceptance of the gift from Ernie as demonstrated by his signature on these same documents. Finally, the gift was adequately delivered through the execution of these documents. Considering Dorothy’s physical health at that time, the delivery of ownership documents and the execution of those documents amount to the delivery of the vehicles. [54] I would add that given the totality of the evidence, I am not persuaded that any of the handwritten notes are determinative. Taken as a whole, the notes do not come close to persuading me that Dorothy intended for the cars to be held in trust by Ernie for Joey. Indeed, there is no credible overall evidence to support the notion that Dorothy intended for such an outcome. To the contrary, I find that the preponderance of evidence demonstrates that Dorothy sold the cars to Ernie for $1,000.00 as at late February, 2023. [55] When I consider the evidence of both the Applicant and the Respondent, it is clear that the Applicant has failed to discharge his burden to raise the presumption of undue influence. In all of the circumstances, the Application must fail. Conclusion [56] On all of the evidence it is apparent that the nominal sale price of the two vehicles was a validly given gift. I find that Dorothy, based on the documents she signed, had a clear intention to give the cars to Ernie. The presumption of capacity applies and, even if it did not apply in this case, I find that Dorothy had capacity at the time the cars were sold to Ernie for $1,000.00. It is also clear that Ernie accepted the gifts by signing the necessary documents (referenced earlier and attached as exhibits to his affidavits). The gifts were validly delivered to Ernie as Dorothy provided the signed ownership documents to him and because he took possession of the vehicles. [57] The Applicant has failed to demonstrate that the relationship between Ernie and Dorothy was one necessitating a presumption of invalidity. Indeed, on all of the evidence I have determined that the relationship between Ernie and Dorothy was positive and one of mutual respect and care. [58] In the result, the Application is dismissed. I would ask Ms. Arseneau to prepare an Order in keeping with this decision. If the parties cannot agree on costs, I invite written submissions within 30 calendar days of this decision. Chipman, J.