Fawson Estate (Re)

Fawson Estate (Re) Court Supreme Court Date 2012-02-06 Citation 2012 NSSC 55 Docket Hfx 343070 Judge/Registrar/Adjudicator Hood, Suzanne M. (Honourable Justice) Document Type Decision Relations Library Sheet - Fawson Estate (Re) - 2012 NSSC 55 - 2012-02-06 - Library Sheet Decision Content SUPREME COURT OF NOVA SCOTIA Citation: Fawson Estate (Re), 2012 NSSC 55 Date: 20120206 Docket: Hfx. No. 343070 Registry: Halifax In the Estate of Margaret Anne Fawson, Deceased In the Matter of the Proof in Solemn Form of the Last Will and Testament of Margaret Anne Fawson D E C I S I O N Judge: The Honourable Justice Suzanne M. Hood Heard: June 20, 21, 22 and 27 and August 8 and 9, 2011 Final Written Submissions: Last written submissions received September 6, 2011 Written Decision: February 6, 2012 Counsel: Keith MacKay for the Applicant, James Fawson Kent Clarke for the Estate of Margaret Fawson Patrick Fawson, self-represented Frank Fawson, self-represented By the Court: [1] Margaret Fawson executed a will disinheriting two of her brothers. James Fawson seeks to have the will proved in solemn form and declared invalid on the basis that Margaret Fawson lacked testamentary capacity when she executed the will. [2] James Fawson’s Notice of Application was filed on January 20, 2011. On February 1, 2011, the executrix of the estate filed a Notice of Objection. She also filed an application on May 13, 2011 seeking an order that James Fawson’s application was frivolous and vexatious. [3] Various parties have filed Notices of Objection. Patrick Fawson, Samantha Fawson and Sarah Fawson and Jenna Fawson object to James Fawson’s application. Frank Fawson and Myles Fawson both object to Sandra Deveau’s application that James Fawson’s application be declared frivolous and vexatious. ISSUES 1. Is the application frivolous and vexatious; 2. If not, is the will valid? Frivolous and Vexatious [4] The first issue to be resolved is whether James Fawson’s application is frivolous and vexatious. Although this was raised initially by the Executrix, Sandra Deveau, it was not addressed in the closing submissions of counsel for the Estate of Margaret Fawson.. [5] An application is only frivolous and vexatious if there is no basis in law for the application or if it is brought only to harass the opposing party. Conversely, if there is some potential merit to the application, it should not be struck as frivolous and vexatious. [6] I cannot conclude the application is frivolous and vexatious. There is some merit to the applicant’s claim that Margaret Fawson may have lacked testamentary capacity when she executed her will. Affidavit evidence was filed prior to the hearing of this matter which indicates that Margaret Fawson may have had a delusion about her mother’s health and the role of her brothers, James and Frank, in her care. The question of whether that influenced her will is a serious question for the court. [7] I therefore move on to consider the issue of testamentary capacity and the evidence before the court. Chronology [8] Certain facts are uncontested. [9] The Fawson family consisted of four children: Margaret, born in February 1948; James, born in November 1950; Frank, born in April 1953 and Patrick born in June 1954. Mr. Fawson senior was in the military and retired to Nova Scotia buying a home and lands on Prospect Bay Road in 1966. Mr. and Mrs. Fawson also bought a home in Halifax on Claremont Street. In 1982, the parents separated and Mr. Fawson senior moved out of the family home. [10] Margaret Fawson lived with her parents until their separation and then continued to live with her mother. She did not live alone until after her mother’s admission to St. Vincent’s Guest House in November 2002. She worked at the Federal Government department originally called Manpower and later Service Canada. She worked in an office in downtown Dartmouth. Downsizing forced her to retire in 2009. [11] On September 28, 2001, Margaret Fawson returned from work to find her mother on the floor. She assisted her to her feet, gave her a drink and sat her in a chair in the livingroom. Approximately one and a half hours later, Theresa Fawson had a seizure of some sort and Margaret Fawson called an ambulance. [12] On Theresa Fawson’s admission to hospital, the hospital staff noted her terrible physical state and contacted Adult Protection. Donna Pettipas from Adult Protection subsequently met with the family. She determined that Theresa Fawson was likely an adult in need of protection and began the court process to have her declared an adult in need of protection. During this process, Donna Pettipas discussed with the family Theresa Fawson’s future living arrangements. The question was whether she should immediately go to a nursing home or whether she could be returned to her home with 24 hour care. Adult Protection agreed that Theresa Fawson would return home. Work needed to be done to the home in advance of an inspection by Adult Protection to ensure that the home would be safe for her. The work that was required was undertaken by Frank Fawson. [13] On December 11, 2001, an order was granted declaring Theresa Fawson an adult in need of protection. [14] Because of the state of neglect in which Theresa Fawson was found on her admission to hospital, Adult Protection would only agree to returning to Theresa Fawson to her home with 24 hour care which did not involve Margaret Fawson. Arrangements were made for that care and Theresa Fawson returned home on December 12, 2001. Theresa Fawson had sufficient assets to pay for the cost of 24 hour care. [15] In May 2002, James Fawson applied for guardianship of his mother. Adult Protection supported his application as did Frank Fawson. Margaret Fawson and Patrick Fawson did not agree. Subsequently, Patrick Fawson also applied for guardianship. On June 26, 2002, by court order, James Fawson became Theresa Fawson’s guardian. Patrick Fawson appealed the decision on July 25, 2002. The appeal was dismissed in January 2003. After that date, the guardianship matter was concluded and Adult Protection was no longer involved with Theresa Fawson. [16] The affidavits by two medical doctors filed on the guardianship application stated that Theresa Fawson: . . . is suffering from advanced dementia ... [17] At the hearing, Margaret Fawson was represented by counsel. In the course of his decision, Davison, J. referred to her counsel having: . . . raised that the competency, or incompetency, of Theresa Rose Fawson was an issue. (p. 48 of Tab A to James Fawson’s affidavit) [18] He continued (p. 49): . . . Mrs. Pettipas . . . says it would only be minutes that you spend with Mrs. Fawson before you could say she was not competent. [19] In the Court of Appeal decision, the court said in para. 4 (p. 9 of Tab B): ... Margaret Fawson . . . sought to make incompetence an issue at the hearing. [20] Theresa Fawson’s care was costly and, by November 2002, her funds having been exhausted, James Fawson, as her guardian, decided she had to go to a nursing home. Theresa Fawson moved to St. Vincent’s Guest House on November 28, 2002. [21] In April 2004, Margaret Fawson executed her will in which she left nothing to her brothers, James and Frank. [22] On November 3 , 2010, Theresa Fawson died at St. Vincent’s Guest House. Margaret Fawson insisted upon an autopsy. The autopsy results (Ex 8) state the cause of death to be complications of dementia (probable Alzheimer disease). It also lists other significant causes as 1) hypertensive cardiovascular disease and diabetes mellitus. [23] On December 25, 2010, Margaret Fawson was found dead in the Claremont Street home. [24] Margaret Fawson’s will was admitted to probate and the application for Proof in Solemn Form of the will followed. Evidence Donna Pettipas [25] Donna Pettipas was an Adult Protection Worker in Dartmouth from 2000 to 2007. Her testimony is as follows. [26] She was contacted by the Halifax Infirmary social worker after Theresa Fawson was admitted through Emergency. The Hospital’s concerns were the significant state of neglect in which they found Theresa Fawson and her quite advanced dementing illness. She had been in the care of her daughter and Theresa Fawson was unable to formulate a care plan for herself. [27] Donna Pettipas met with the hospital social worker, Theresa Fawson, Margaret Fawson and other family members. She concluded that Theresa Fawson likely was an adult in need of protection and a care plan had to be developed for her. She could afford to pay so “home plan” was an option. Before she could return home, repairs had to be done to the home to address safety issues and 24 hour care arranged. [28] Donna Pettipas learned that Theresa Fawson had not seen her family doctor in three years, her blood sugars were very high (22) and she had been alone in the home on September 28, which was not unusual. She said that she was told that Margaret Fawson had found her mother on the floor around 5:30 but did not call an ambulance until around 7:30 when her mother had a seizure. She said Margaret Fawson gave her contradictory information with respect to her mother’s medication. She told her that her mother did not need her diabetes medication but then said she would not take it. She said her mother had not had her blood sugar tested in some weeks. It then became apparent that she had not been taking her medication for a year. [29] Donna Pettipas testified about the Hospital records’ description of Theresa Fawson’s personal condition when she was admitted to hospital. [30] Donna Pettipas’ own observations were that Margaret Fawson loved her mother but had no insight into her mother’s needs. She said that Margaret Fawson would not accept that her mother had dementia and wanted to have her reassessed. Margaret Fawson said her mother merely had a short term memory problem. Donna Pettipas said that Theresa Fawson was cooperative in hospital and receptive to care. She said she wanted to give her an opportunity to return to familiar surroundings with proper supports. [31] Donna Pettipas said she made it clear to Margaret Fawson that she would not be involved in her mother’s care at home. She said this was because Margaret had no insight into the extent of her mother’s incapacity and minimized the dangers of her living alone in the home. [32] On cross-examination by Frank Fawson, Donna Pettipas said she knew that both Frank and Jim were aware that they would have to deal with Margaret’s issues and were aware of her struggles because she was set in her beliefs that she could care for her mother. [33] Donna Pettipas said she concluded that Theresa Fawson was in need of protection since she was a victim of neglect. She therefore set into motion the adult protection proceedings. At a hearing on December 17, 2001, she was found to be an adult in need of protection. Thereafter, services could be provided for her. [34] Donna Pettipas said that Margaret Fawson told her that she thought the home care plan would be needed for only one month and then things would go back the way they were, with her caring for her mother. [35] After Theresa Fawson returned home Donna Pettipas said it was difficult to manage her care. She referred to “a long litany” of problems. These included: - Margaret cooking for her mother instead of allowing the home care staff to do so; - Margaret locking the fridge and freezer so staff could not access food for Theresa Fawson; - Margaret removing the knobs from the dryer so staff could not dry Theresa Fawson’s clothing and bedding which had to be changed often because she was incontinent; - Margaret taking the hose from the vacuum cleaner so the staff could not keep the house clean; - Giving the staff soiled not clean linens; - Not buying cleaning supplies and Depends for her mother; - Intimidating staff and constant complaints with respect to the RJF staff. [36] Donna Pettipas said that she hoped that, as time went on, Margaret would feel more comfortable with the home care arrangement. She said that Theresa Fawson was doing well with that arrangement - she was happy, was in no danger and her needs were being met. [37] After James Fawson was appointed as Theresa Fawson’s guardian, the Adult Protection order was rescinded. Donna Pettipas’ last direct involvement with the family was on November 28, 2002 when Theresa Fawson moved to St. Vincent’s Guest House. She had made arrangements for a bed for Theresa Fawson there and James Fawson handled the move. She said the Minister of Health’s position on the guardianship applications brought by James and Patrick was to support James Fawson’s application. She said they were confident in his ability to put his mother’s care needs first. She believed Patrick was acting on Margaret’s instructions and her concern continued that Margaret had no insight into her mother’s care needs. Donna Pettipas’ Affidavit [38] Attached to Donna Pettipas’ Affidavit is her Affidavit of November 27, 2001 filed for the Adult Protection application. Her file notes from October 22, 2001 reflect information Donna Pettipas received from the hospital social worker as follows (p. 11, Tab A): ... Mrs. Fawson was noted to be in a severe state of neglect at the time that she was admitted to hospital. Lindy describes Mrs. Fawson having very ‘dirty’, matted hair, had a ‘crust-like’ build-up on her feet and ankles, nails uncut, she had a terrible smell, the skin under her breasts was very excoriated/yeasty and her vagina/groin area was also in poor condition. Mrs. Fawson had apparently not been receiving her prescribed meds for diabetes for the last year and had not seen her G.P. for three years. [39] There are numerous references in the notes attached to Donna Pettipas’ Affidavit of occasions when Margaret Fawson either denied that her mother was incompetent or asked for a reassessment of the diagnosis of dementia or both. The notes reflect that she discussed with Donna Pettipas what the result would be if her mother were declared competent. As Donna Pettipas’ notes indicate, this was in the face of Theresa Fawson’s obvious signs of incompetence. [40] The first note with respect to Theresa Fawson dated October 22, 2001 indicated that she was “significantly more impaired” than after her stroke in 1998. The note continues that Theresa Fawson had a “sitter” at her hospital bedside because she tried to climb over the bed rails, “doesn’t remember to use her walker and needs assistance with all ADL’s. [41] In that same note (on p. 12), the hospital social worker reports: ... Margaret ... denies that her mother is incompetent or has a marked degree of impairment. It continues: [the social worker] believes that Margaret wants Mrs. Fawson to return home with everything remaining as it was prior to her hospital admission. [42] At page 15, there is a reference to Dr. Michalon finding Theresa Fawson to be incompetent and noting her “dementia seems progressive.” Thereafter at page 18, it is noted that Margaret “denies her mother is incompetent” and will be “taking the matter to court.” [43] The notes at page 18 also state: ... Throughout the meeting Margaret would change from saying that she will ‘fight’ guardianship and care at home to stating she has few concerns with guardianship and wanted help with her mother. Lindy reported in notes that Margaret’s general presentation was also inconsistent and that at times she would speak in a raised had a raised tone of voice, at one point leaning towards Lindy and said ‘You’re an agent of the state. You’re not advocating for my mother’. She would then sit back, relaxed, and talk about her work. These episodes of moving from an aggressive stance to being relaxed occurred four or five times during the meeting with Lindy. [44] In a meeting with Donna Pettipas on November 20, 2001 (p. 27), Margaret Fawson asked for a second opinion with respect to her mother’s competency. She referred to her mother’s “short term memory loss (following her stroke)” (p. 28). She then said it would change everything if “Dr. McKnight ... were to find her competent.” [45] In her Affidavit sworn on May 21, 2002 in support of continuing the Adult Protection Order (Tab B to the May 24, 2011 Affidavit), Donna Pettipas says in paragraph 15: 15. On February 27, 2002, Dr. McKnight advised me that he had been approached by Margaret Fawson to re-assess Mrs. Fawson’s competency. Margaret Fawson has failed to accept Mrs. Fawson’s decreased functioning and has been unable to accept the assessment determining that Mrs. Fawson is incompetent. [46] Dr. Chris MacKnight, a geriatric specialist, assessed Theresa Fawson and his March 6, 2002 report (Ex C to Donna Pettipas’ Affidavit at Tab B, pp. 62-64) states: The prompting for my visit today largely came from her daughter, Margaret, who had questions about her mother’s dementia and whether she was actually incompetent. [47] RJF Health Care provided written reports to Donna Pettipas as required. The type of difficulties caused by Margaret Fawson are illustrated in the report of January 16, 2002 (p. 51 of Tab B of Donna Pettipas’ Affidavit). I visited on Tuesday January 15, in response to concerns by staff surrounding laundry and rodents. Margaret had insisted that she be allowed to do laundry at home. However, when she gave bed linen to the staff for use they were in fact still soiled. I examined the laundry area which is located in the basement. The stairs were covered with dirty laundry, which had been thrown down by Margaret. [48] Problems were again reported in the March 6, 2002 report (p. 54). Margaret dispenses the glucose strips to the staff only when they are down to 6 strips, the other refills she has hidden in her room upstairs. [49] There were problems with housekeeping because: Margaret continues to maintain responsibility for dusting, vacuuming and laundry at her request. Unfortunately, she feels it is adequate to do these tasks once a week. ... there were numerous crumbs and debris on the carpet ... . I had asked staff to vacuum this area ... but Margaret ... has now hidden the hose to the machine. [50] Further problems were reported in the March 26, 2002 report (p. 56). Margaret ... refused to buy Depends for her mother, although she is incontinent. Instead she bought small Poise pads which were ineffective and Theresa Fawson’s clothing continues to be soiled with feces. [51] In Donna Pettipas’ Affidavit of November 14, 2002 (pp. 5-9 of Tab C to her main Affidavit), she refers to continuing difficulties with Margaret Fawson at para. 9. 9. RJF Healthcare staff continue to report difficulties with Margaret Fawson and her interference in the care plan for her other, including reports of the following: a) Margaret Fawson not allowing staff use of the stove, the dryer or entry to the basement where food and cleaning supplies (which are locked) are stored. Mrs. Fawson is incontinent and requires laundry done on a regular basis. b) Margaret Fawson accusing the staff of stealing money and cutlery in the presence of Theresa Fawson that has caused considerable upset for Mrs. Fawson; c) interfering with the meal plan for Theresa Fawson by not providing groceries as requested by the staff; d) Margaret Fawson has been measuring the sitting room and has indicated an intention to move her mother’s bed to the sitting room and has applied to have International students board in the home. [52] These relate to Donna Pettipas’ notes of September 3, 2002, attached to that Affidavit (p. 10 of Tab C). [53] Adult Protection involvement was terminated as of February 10, 2003 after the appeal of James Fawson’s guardianship was dismissed. The Order terminating their involvement was issued on February 26, 2003. Charles Anderson [54] Charles Anderson is a social worker at St. Vincent’s Guest House and has been since 1998. He first met Margaret Fawson in the first week her mother was in St. Vincent’s Guest House. He was called in when a personal care worker was trying to help Theresa Fawson dress and Margaret Fawson said her mother did not need help. He said there were a number of occasions when Margaret Fawson caused problems with her mother, with staff and other residents. He said not all were recorded but the worst were. [55] He said Margaret Fawson’s concerns were that her mother did not need care and she did not believe she had dementia. She thought it was wrong of her brother, James, to put her in a nursing home. She believed they had been doing fine at home together. [56] Charles Anderson described Margaret Fawson’s demeanour on these occasions as direct and, if someone tried to reason with her, she would become angry, rude and abrupt. He said she would say they did not know what they were doing. She threatened staff with legal action or complaints to their governing body. He said she often accused staff and him of murdering her mother. As her mother’s dementia progressed, she said this proved she was correct. [57] Charles Anderson testified that Margaret Fawson was always complaining about James saying he had put their mother in a nursing home to discredit her (Margaret) and to take control of their mother’s life. He said his view of James Fawson was that he was trying to do the best he could for his mother while trying to be considerate of Margaret. He said that at Theresa Fawson’s death there was a surplus in her account and James Fawson donated $12,000.00 to $14,000.00 to St. Vincent’s Guest House. He said he did not believe James Fawson was interested in Theresa Fawson’s money. [58] Charles Anderson related incidents of Margaret Fawson inappropriately giving her mother food such as solid food when all she could swallow was pureed food. [59] He recalled an incident in mid May of 2003 when she confronted him in his office, screaming at him and saying he was part of the plan to kill her mother. He said when he reached for the phone she came back towards him and was so close to him with her head down and her fists clenched that, when she yelled at him, she was spitting in his face. [60] Margaret Fawson was understandably upset when her mother fell and broke her hip and had to be hospitalized. However, on June 1, 2003, not long after Theresa Fawson’s return from hospital, Margaret tried to remove her mother from the floor on which she resided and which she was not permitted to leave because of her level of confusion. Margaret had her car outside and was going to transfer her mother, with a broken hip, from her wheelchair into a passenger car to go to a party. [61] Charles Anderson wrote to Margaret Fawson on June 4, 2003 (Exhibit 7) . He said “The topics you choose to speak to Theresa about continue to cause your mother great anxiety.” He also referred to “verbal attacks” on staff and himself. He said staff were terrified of her. He also testified she would upset her mother and bring her to tears. As a result of these types of incidents, within eight months of her mother’s arrival at St. Vincent’s Guest House, Margaret Fawson was told she could only visit when accompanied by another family member. [62] Charles Anderson says she visited less frequently after that. However, he said as Theresa Fawson became very ill, Margaret Fawson visited more often in 2010 but he said things became difficult again. [63] When asked if Margaret Fawson ever accepted that her mother had dementia, Charles Anderson said she never believed it. He said that, as Theresa Fawson’s health failed, she saw it as proving that, if her mother had been home with her, it would not have happened. [64] He said after Theresa Fawson’s death, when he met with the family, Margaret Fawson requested an autopsy to prove that her mother’s care was wrong and she had been murdered. [65] Charles Anderson also testified there was an incident with Dr. Graham (the doctor who treated Theresa Fawson at St. Vincent’s Guest House). The day before Theresa Fawson died, Margaret went to see him and berated him. [66] Charles Anderson was cross-examined about the incidents referred to in the notes and said not all Margaret Fawson’s inappropriate behaviour would be captured in the notes because some did not occur in her mother’s room which is where the chart was. He also said the nursing notes do not include everything that happened and every visitor who came. Chart Notes from St. Vincent’s Guest House [67] The nursing chart notes from St. Vincent’s Guest House were attached as an exhibit to the Affidavit of Charles Anderson. The notes of the incident when Theresa Fawson broke her hip on January 15, 2003 indicate she was walking in her stocking feet, without her walker, when she fell. She was in hospital until January 24 and, on January 28, the chart notes indicate “hip precautions” were discussed with Margaret Fawson. A wheelchair was provided for Theresa Fawson. On March 2, before Theresa Fawson’s cataract surgery, there is a chart note about practising transfer techniques so James Fawson could take his mother via wheelchair for the eye surgery. A subsequent note on April 17 refers to two staff people assisting with transferring Theresa Fawson in and out of the wheelchair. [68] The nursing notes of June 1, 2003, beginning at 1:00 p.m., refer at some length to Margaret Fawson’s efforts to take her mother to a party without permission and without advising the nursing staff except by leaving the invitation on Theresa Fawson’s empty bed. The notes refer to how Margaret Fawson reacted; they say she “became very irrational in the presence of her mother,” threatening to call the police. She complained about the physiotherapy and the meals. The nursing staff asked her not to be saying these things in front of her mother. James Fawson had been called and arrived and the notes indicate “she [M ...] became very vocal, loud, pointing finger, aggressive, standing up, going after him.” It says of Jim’s reaction: “Jim was calm and collected and attempted to keep the atmosphere calm.” [69] After the registered nurse asked Margaret Fawson to “stop the verbal abuse and aggression” or leave, the notes indicate “Margaret left with the threat her lawyers would be in touch.” The notes indicate they tried to divert Theresa Fawson’s attention from the scene and the notes indicate that at 3 p.m. she appeared okay. [70] On June 11, 2003, there were further chart notes about transferring Theresa Fawson in and out of bed. [71] In September 2003, after she was sent the letter requiring her to visit only with another family member, Margaret was seen alone visiting with her mother in the solarium. The notes indicate “Margaret became belligerent in tone and behaviour.” The notes refer to “her manner of speaking/behaviour was threatening in nature” but the notes indicate Margaret did leave. [72] On December 21, 2003, Margaret again visited alone. When confronted, she said it was not legal. She then asked “both the RN and the LPN for their “cards” and said she “could have our licenses revoked.” The notes went on to say “she continued by stating her brother Jim has a ‘big problem’ and it was his fault that her mother was in a wheel chair and also in St. Vincent’s Guest House.” Margaret then left voluntarily. [73] On February 15, 2004, Margaret and her sister-in-law visited Theresa Fawson. The RN’s notes say she contacted James Fawson and the notes say “If her behaviour improves with visiting, he would be happy to see her visit more frequently.” The note continues, “This writer introduced myself to the daughter Margaret and Pauline Fawson, her sister-in-law. The daughter Margaret was not friendly and told me that she was launching a lawsuit about the situation.” [74] When Margaret Fawson resumed more regular visits in 2010, the notes of May 9, 2010 indicate “daughter Margaret visiting, several complaints to staff, very demanding ... .” [75] On June 16, 2010, the notes indicate “daughter Margaret visiting, several complaints - upset that cable not hooked up to tv.” It continues, “daughter came to desk and apologized for actions.” On October 26, 2010, the nursing notes indicate “daughter was on second floor - and asking questions re: diabetic diet and Glucose scans; ...” The staff were concerned about Margaret visiting alone in light of the June 2003 letter and contacted James Fawson. The note continues: “- stated he was trying to be more lenient with Margaret Fawson’s visits.” It then continues “Margaret can visit and need only to call 911 if deemed necessary and every other attempt unsuccessful. Family member inquisitive but otherwise visit seems to be going well.” A note at 7 o’clock said “Margaret left around 19:00. Zero incident.” [76] On October 27, the notes indicate that “James Fawson has informed me that his sister Margaret is allowed to feed her mother but only in our diningroom and only food that is provided by our nutrition service department. Margaret is allowed to visit with her mother in her room but, if she is observed feeding her mother, she is to be asked to stop ...” [77] Later that same day, Margaret Fawson got into a discussion with a staff member who was checking Theresa Fawson’s blood/sugar. After the discussion, the note continues: “resident’s daughter then responded: ‘Well when she dies you will know.’” [78] As Theresa Fawson’s condition deteriorated, there is a note of a visit from Margaret Fawson on October 31, 2010 when there was discussion of Theresa Fawson’s level of care. The note continues, “daughter then told writer ‘comfort care is illegal in Nova Scotia because it is the same as euthanasia’.” She then stated “If she dies, there will be a full investigation. I am not going to allow her to die.” [79] Theresa Fawson died a few days later on November 3, 2010 at age 84. The last notes are a request on November 9, 2010 from the Medical Examiner’s Office for “copy of comfort care order and doctors’ and nurses’ notes for last three to five days prior to death and the doctors’ notes for the past two years.” Margaret Coffin [80] Margaret Coffin is a Registered Nurse who works in the Office of the Medical Examiner as the coordinator of investigations. She said she began an investigation into the death of Theresa Fawson in November 2010 when she received a voice mail message from Margaret Fawson saying everyone was refusing an autopsy request. She said Margaret Fawson’s concerns were that the nursing home was starving her mother and they killed her. She said she contacted the police, a family member for health background information, the family doctor and requested the medical records from the hospital and the nursing home. She said she spoke with Margaret Fawson who told her that her mother did not have dementia and was not as mentally incapacitated as the nursing home staff said she was. She said Margaret said she was a gerontologist so she accepted her information. [81] Ms. Coffin said the Medical Examiner’s Office then issued a Death Certificate (Exhibit 8) stating that Theresa Fawson’s cause of death was complications of dementia along with two other significant causes: hypertensive cardiovascular disease and diabetes and that her manner of death was “natural.” [82] She was not cross-examined by respondent’s counsel or by Patrick Fawson. Jane Hawes and Lorna Stevens [83] Jane Hawes and Lorna Stevens are sisters and cousins of Margaret Fawson. Their mothers were sisters. They both testified that Margaret Fawson and Theresa Fawson would visit at the family home where Jane lived with her mother. Jane Hawes testified that they visited quite regularly and she noticed Theresa Fawson’s memory worsening. She noticed this even before Theresa Fawson retired. She also noticed she sometimes had greasy hair and body odour in the period of 1999-2001. She said when she mentioned Theresa Fawson’s memory loss to Margaret, Margaret’s response was that there was nothing wrong with her mother and she was a gerontologist so she knew what she was doing. She testified that Margaret said this curtly and did not want to discuss it further. [84] She said that for many years they had been unable to visit Margaret and her mother in their home. She said Margaret Fawson would meet them on the door step. She said when Theresa Fawson was taken to hospital Margaret asked her and her husband to help with the house. She said it was filthy, loaded with furniture, quilts, tables, lamps and there were only pathways from the door to the diningroom. [85] Jane Hawes testified that, after Theresa Fawson returned home from the hospital and had 24 hour in-home care, Margaret visited her alone. She said she told her she was unhappy with the care provided by RJF, especially with respect to her mother’s diet. She said Margaret Fawson told her she would not let them use the big washer/dryer or the oven and had put locks on the freezer. [86] She said that on the day her mother was taken to the nursing home, Margaret Fawson came to her house screaming and crying and saying James and Frank wanted her mother to die. She said she was trying to find a lawyer so she could get her mother back. Jane Hawes said that when she visited Theresa Fawson at St. Vincent’s Guest House, Theresa Fawson did not know her. She said she saw that she did not have her glasses and, when she asked Margaret to bring them, she said she would not since she wanted James to fail. [87] She said Margaret told her she was not getting very good care at St. Vincent’s Guest House and they wanted her to die. At first, she said her mother would die within one month of going there. [88] Jane Hawes testified that Margaret Fawson told her she was not comfortable visiting her mother because she was being scrutinized. She also related an incident when Margaret told her she would bring her mother to an anniversary party. She said Margaret told her the RCMP might be there if she did so. She said she then arrived alone. [89] She said Margaret Fawson continued to visit her but she became increasingly tired of listening to her accusations. She said Margaret constantly berated Jim and Frank saying they had ruined their mother’s life. She said all they wanted was her mother’s money and wanted her dead. She said, as she grew silent during Margaret’s rantings, Margaret came to visit less often. [90] She said Margaret told her she had hidden her mother’s jewellery so Jim and Frank would not find it. This was at a time after Theresa Fawson was in the nursing home. [91] She said she knew Margaret was not taking her diabetes medication but she said Margaret told her she was trying to control it with diet. [92] Jane Hawes believed Margaret had delusions about her mother not having dementia even after her mother was in the nursing home. [93] Lorna Stevens’ testimony confirmed much of Jane’s. She said her aunt, Theresa Fawson, worked until she was 67 or 68 and she had seen a change in her personality even before she retired. She said she once mentioned Theresa Fawson’s mental health to Margaret and, when Margaret “blew up” over it, she kept her comments to herself. She said the dementia was obvious to everyone but Margaret would not accept it. [94] She said Margaret Fawson’s attitude to Jim and Frank changed from visiting both to “complete animosity.” She said she was derogatory towards both. [95] She also related an incident when Margaret told her she had hidden her mother’s silverware, etc., so it would never be found. She said that conversation was around June 2010. [96] She too said that, when she visited Theresa Fawson at St. Vincent’s Guest House, she did not know who she was, but that Margaret insisted her mother knew her. She said she would not contradict Margaret because Margaret was “always right” and there would only be a confrontation. [97] She said Margaret told her that sending her mother to a nursing home was a death sentence and her mother would be dead within a year. [98] She said she thought Margaret was unstable and related an incident when she bought three pairs of sneakers for her mother who was then in a wheelchair. [99] She was cross-examined about having discussed her testimony with her sister. She said it was common knowledge what had occurred and they had discussed Margaret’s situation. She said things had been discussed over the years. James Fawson [100] James Fawson is the applicant. He is the eldest son and Margaret’s younger brother. He related how, prior to September 2001, his mother and Margaret visited his family quite regularly. He said they came on special occasions and also sometimes just dropped in. He said Margaret had his wife type job applications for her and earlier he had done her income tax and had done handyman work around the Claremont Street house. He said sometimes his mother and Margaret would babysit their children and they would sometimes take his daughter Angela on outings or overnights with them. [101] He said everything changed once their mother was hospitalized in September 2001. He said she was unkempt and filthy and it was obvious she had dementia. He said when they discussed what would happen when she could be released from the hospital, Margaret rejected the idea that she could not be home alone. He said their mother’s progressively deteriorating dementia was beyond Margaret’s ability to care for her but Margaret never accepted that. [102] He said he realized his mother’s needs had to be looked after but he knew there was a problem with Margaret as well. He said adult protection would only allow Theresa Fawson to return to her home with 24 hour care and no role for Margaret. Before her return, there had to be an adult protection inspection of the home. He said renovations had to be done to address safety issues but he knew the house was “full of stuff” and had not been cleaned. He said Frank got the house ready. [103] He said he arranged for home care and hoped that, before his mother’s money ran out, things would change with Margaret. He said it never did. [104] He said that during the adult protection process he decided he would apply to the court to become his mother’s guardian. He was supported in this by Frank but Margaret and Patrick did not agree with it. [105] He said that, while RJF was providing care to his mother, he received calls about Margaret. RJF was to provide Theresa Fawson’s meals, do laundry and keep the house clean. He said Margaret took the knobs off the dryer in the basement so it could not be used and bought a small washing machine for the kitchen which was inadequate for washing bed linens. He said they were told to use the clothes line but it was broken. Margaret locked the freezer so they could not access food for Theresa Fawson and hid the vacuum hose so they could not vacuum the house. He said there were also complaints about Patrick’s interference with Theresa Fawson’s diabetes testing. [106] He said the reason Theresa Fawson had to go to the nursing home because 24 hour care was very costly and after about 11 months her money to pay for it had run out. He said he asked Adult Protection if the care plan could be modified to include a role for Margaret but Adult Protection would not agree because Margaret’s views had not changed. He said it was either 24 hour home care or a nursing home. Therefore, he asked Donna Pettipas if she could help him find a place for Theresa Fawson at St. Vincent’s Guest House. [107] He said his mother settled in very well there but Margaret began to interfere with their mother’s care and that of others. He related an early incident when Margaret reorganized the tables and chairs in the diningroom. Everyone had an assigned place and, when the specific meals for each resident were next brought it, there was confusion because no one was at their usual table. [108] He also said Theresa Fawson had a special diet but Margaret brought food for her which interfered with her blood/sugar levels. He said that staff initially did not understand why they were so high until they found food in her garbage can. He also referred to the incident when Margaret tried to take their mother to an anniversary party. He said he told Margaret her car was not equipped to transport her and she might re-injure her hip. He said her response was that she would get a lawyer. [109] As a result of this and other incidents, Charles Anderson told him his mother would have to be removed because they would not tolerate Margaret’s behaviour. As a result of this, he said he sent Margaret a letter saying she could visit only if accompanied by a relative. He said it was not her visits he wanted to stop but her inappropriate behaviour and activities. [110] He said overall Margaret isolated herself from him. [111] He said there was money left in his mother’s account at St. Vincent’s Guest House and he decided, as her guardian, it should be donated to St. Vincent’s. He also arranged for a pre-paid funeral. [112] As the years went by, he said his mother’s condition deteriorated. Therefore, as her guardian, he said he ordered comfort care which was to make her comfortable, attend to her needs and provide her medication but not intervene if her heart stopped or she stopped breathing. After his mother died, he went to St. Vincent’s Guest House and found Margaret in the solarium with a friend. Margaret said she wanted an autopsy done to prove Theresa Fawson did not have dementia and to prove that he and St. Vincent’s Guest House had murdered her. Frank Fawson [113] Frank is the third child and second son in the Fawson family. He said that he visited back and forth with Margaret and his mother after the parents separated. He too referred to the family gatherings at Jim’s home. He said that the visiting at Claremont Street was open until the latter part of the 1990's. He said thereafter Margaret would not let them in the house and sometimes they would eat outside at the picnic table. On rainy days, Margaret would bring his mother out to his car. [114] He said he received gifts from Margaret who was very generous. He said that their relationship was fairly close and a good one. He said that when their mother went into hospital in September 2011, it began to change. He said the turning point was when Adult Protection stepped in. He said before that he suggested to Margaret that she needed help with her mother’s care, but her response was that he should mind his own business and that she knew what she was doing. He said he offered his carpentry skills to do what Adult Protection needed done to the home so their mother could return home. He said that would also give Margaret an opportunity to adjust to their mother’s condition without the burden of caring for her. He said he hoped Margaret would see the value of having help and things would improve so Margaret could do some care. He hoped she would begin to understand their mother’s dementia but he said that did not happen. [115] Frank said the house was unfit to live in. He repaired the plumbing, the electrical, tiled the bathroom floor, put on new counter tops, did work on the roof and made a new porch and stairs. He said Margaret did not move things out so he bought boxes, filled and labelled them and took them to the downstairs apartment. [116] He said he was paid for his work, less than $3,000.00, but Patrick and Margaret took exception to him being paid. He said he took leave from his work in Lunenburg County for most of 2 ½ months. He worked on the house a large part of every day. He said that in addition to the work, things had to be sorted and put away. He said he took time from his work to do the work and there was too much to be done only on weekends. He denied searching through Margaret’s things and said that Margaret never accused him of having done so. [117] Frank Fawson testified that, after the Adult Protection Inspection was done, there was another dramatic change. He said he tried to get Margaret to talk about the caregivers who would be coming in and how she would deal with it. He said she would not discuss it and still referred to their mother as having only short-term memory loss. [118] He denied in rebuttal ever having a physical altercation with Margaret. He said the incident when he was trying to having to have a discussion with her may have been portrayed otherwise by Margaret. He said he had her keys and said he would give them to her after they had talked. He said she accused him of assaulting her and left. [119] After their mother returned home, Frank said there was a meeting at Jim’s and there were heated exchanges. Jim said he would apply for guardianship and Frank said he had no problem with that because Jim was very responsible and financially sound. He said neither Margaret nor Patrick were acceptable to adult protection. [120] Frank Fawson said that he thought the care workers were doing a good job. Theresa Fawson had companionship while Margaret was at work or shopping. He said when their mother went to St. Vincent’s Guest House he visited when he was in the city and sometimes brought his dog with him. He said he had no problems with his mother’s care. He said there were times when his mother knew him and later she did not. She had good days and bad days. [121] He said on the night his mother died he got a call from Jim and came to St. Vincent’s Guest House. He said that when they were alone, Margaret called him a murderer. He returned the next morning around 9:00 or 10:00 o’clock. He said Margaret was in the solarium with a friend and was on the phone. He said that, as they were discussing funeral arrangements, Margaret said she wanted an autopsy because she wanted to know who killed her and to prove that their mother did not have dementia. He said that after the autopsy was done, he was confident dementia was the cause of death. [122] He said he believed Margaret’s denial of her mother’s dementia was at the heart of the problem. He said it consumed Margaret and led to her alienating herself from him. He said Margaret’s intent was always that she would be their mother’s caregiver. [123] On cross-examination, he admitted that, if the will is invalidated, he will receive one-third of Margaret’s estate. Also, on cross-examination, he said that before September 2001 he tried to convince Margaret that she needed help and suggested that the downstairs apartment be renovated for a caregiver but Margaret would not agree. Patrick Fawson [124] Patrick Fawson is the youngest Fawson sibling. He had the least contact with the rest of the family until September 2001. He said he did not like Jim and Frank and had no desire to be involved with them. He said Frank did not like him and he did not want to make any effort otherwise. [125] He said that, if he went to Claremont Street, he never got in the house and Margaret and his mother would visit with him outside at the picnic table in the yard. He said that after RJF was in the Fawson home on Claremont Street Margaret visited him more often. He said before their mother went to St. Vincent’s Guest House he had had sporadic contact with Margaret. [126] He testified that he was “blind sided” by his mother’s condition. He said Margaret told him their mother had only short term memory loss and he did not know there was a problem. He said, after Adult Protection stepped in, there was a meeting when Jim “flew into” Margaret. He said because of that Margaret told him she felt “hung out to dry” and that the blame for their mother’s condition was being laid on her. He said from then on Margaret was one hundred percent negative against Jim and Frank. [127] He said Margaret asked him to be their mother’s guardian and she would pay the cost. He said it was not his intention, if he became guardian, that Margaret would, in effect, be the guardian. He said she would not have “ruled” if he was the guardian. He said that, because Margaret had not applied to be guardian, she could not appeal the appointment of Jim as Theresa Fawson’s guardian. Therefore, he said she “bank-rolled” him to file the appeal. [128] He said that Margaret told him that Frank was going through her things in parts of the house he was not working on when he was at the house. He also said that Margaret told him Frank was tearing out walls in the basement apartment and she had told him to stop. [129] Patrick Fawson said his mother had an income of $2,100.00 per month and Jim told him she also had $165,000.00. He said he did not know what became of it. He said he never got the information he sought from Jim. [130] He said his mother was afraid of someone getting her money so she transferred everything to Margaret. Originally, he said he thought she was worried about his father’s new wife but, later on, he thought she meant Frank and Jim. He said he understood their mother wanted Margaret to have everything. [131] He said he never thought Margaret had any mental health issues. He described her as sympathetic, caring, intelligent, aggressive when necessary and reasonably in control of her life except for medical issues like her diabetes. He said she was very generous. [132] Patrick testified that, after their mother was taken into care, Margaret was often distraught because she thought their mother was being mistreated. He said she was angry and talked about being angry. He said he personally did not like St. Vincent’s Guest House because he thought it was sub-standard. He said he visited his mother at St. Vincent’s Guest House and it was more than the three times recorded in the nursing notes. He agreed on cross-examination that there were omissions in the notes. [133] He said Margaret may have wanted their mother home but he would not have agreed nor would he have supported that. He said he did not know if Margaret was trying to prove that their mother did not have dementia when she asked for an autopsy. [134] He said he could not reconcile how Margaret let the situation with their mother “get away” from her, that is how she “lost control of the situation,” with her obvious intelligence. [135] On cross-examination, he said he thought Charles Anderson exaggerated the incident when he said Margaret Fawson was shouting at him and in his face. He said he has seen Margaret upset but never as upset as Charles Anderson described. [136] He said Margaret told everyone she had problems with her mother being in a nursing home but he said that, otherwise, Margaret’s life was normal. [137] On cross-examination, he agreed that he was made beneficiary of Margaret Fawson’s RRSP’s in August 2002 and March 2003. However, he said he did not know Margaret had done this. He said that on many occasions Margaret told him that she wanted Jim and Frank to get nothing. [138] He said, on cross-examination, that after Margaret’s death he learned that she had not filed Income Tax Returns after 2003. He said he did not know why she had not done so. He also said that, when she told him she was forced to retire described having to retire because of downsizing, he thought she should retire at that time. Sandra Deveau [139] Sandra Deveau is the Executrix named in Margaret Fawson’s will. She knew Margaret through work and they became friends before the 1980's. She said they would meet for dinners, sometimes with mutual friends, and attended plays and concerts together. They travelled together a few times and shopped together as well. [140] She said Margaret was very kind and caring and loved her mother. She said they were involved in Union activities together. [141] She heard Charles Anderson’s testimony and said that “that was not the Margaret I knew.” [142] She said that Margaret Fawson had her will prepared before she drove to Ottawa to take a 4 week course at the Labour College of Canada in May 2004. She had asked Sandra Deveau to be her Executrix and her Power of Attorney. She then said, as she had said previously, that she wanted to be sure that Jim and Frank inherited nothing. She said Margaret told her their relationship was not good and they bullied and mentally abused her. She also told Sandra that Frank had assaulted her and hit her in the eye causing vision problems. She said she discussed the eye injury with her on the phone and was not sure she saw any bruising. When she later found a lens implant ID card, she recalled Margaret telling her that Frank hit her and the date of the card was from around that time. [143] Margaret also told Sandra that Frank had been in multiple relationships and had not supported his children as he should have. She said that Margaret believed that case a black mark on the Fawson name of which she was very proud. She said that Margaret’s concern with Jim was that he was keeping her away from her mother because Jim was her guardian. She testified that Margaret told her she could not get information from Jim about how her mother’s money was being handled. She said her brothers wanted her mother’s money. [144] She said Margaret had previously told her about Jim and was very proud of him. She said Margaret had shown her Jim’s house in Bedford. She said that relationship with Jim changed early in 2000 around the issues concerning her mother. She said that Margaret did not give her details but said they left her “out to dry” with respect to her mother and let her take the blame for things. She said she did not know then about Adult Protection involvement but knew Jim was their mother’s guardian. She said Margaret felt her brothers had not supported her. She was unaware that Adult Protection did not consider Margaret appropriate to care for her mother or that she had been rejected as her mother’s guardian. She said Margaret was not happy with the care provided by the caregivers, their qualifications and training. She was also concerned that they were watching her. She said Margaret did not tell her about specific incidents. [145] She said she knew Margaret wanted her mother at home and that Margaret thought it was in her mother’s interest as well. She said that, even after hearing the evidence and reading the notes, she did not believe Margaret was terrible and should have been trained to look after her mother with some assistance. [146] She testified that she did not believe that when Margaret and her mother were living there together that the house was in the condition that she found it in on the day Margaret died. [147] She testified that Margaret told her she was afraid of Jim and Frank. She said when their father died she was afraid to go to the funeral home and, because of that, Sandra went with her. [148] She said Margaret told her that she visited Patrick often. She said after their mother went into the nursing home she invited her for holidays and sometimes she came and sometimes she went to Pat’s. She said she understood that, before that, she had spent holidays with her mother. [149] She testified that, although she is a residuary legatee under Margaret’s will, there will be no benefit to her because there will be no residue. The only thing she will receive is the Executor’s Fee. She does not know the amount but said she has spent a lot of time on the matter. She said her motivation for opposing Jim’s application is her loyalty to Margaret and making sure her wishes are carried out. [150] She said Margaret had told her that her mother had dementia and she said she may have called it memory loss but not Alzheimer’s. Friends of Margaret Fawson [151] Margaret Fawson’s friends universally presented a picture of a successful woman who had a responsible job and did it well. Sandra Deveau, Lynn Jones and Kathy Mitchell all worked with Margaret Fawson at various times and called her a friend. They saw each other socially and said they never had any concerns with respect to her mental health. Kathy Mitchell [152] Kathy Mitchell testified she had known Margaret Fawson for thirty years and had worked with her. She said that at work Margaret Fawson was thorough, energetic, assertive and kind. She said their social relationship was excellent: they were involved in some volunteer activities and went out for events and meals. [153] She said Margaret did not discuss her personal life or her health with her. She did, however, tell her that James Fawson intimidated her and she did not trust him financially. She testified that Margaret told her Frank had physically assaulted her when he was working on the house. She said she saw an injury to the left side of Margaret Fawson’s face. She produced a photograph (Exhibit 24) which she said depicted the injury, but she could not say when the photograph was taken. [154] She testified on cross-examination that she was a supportive friend and she had no reason to doubt what Margaret had told her. She recalled that she and Margaret visited Frank’s home on one occasion but she could not recall when. [155] She was with Margaret when she went to St. Vincent’s Guest House after Theresa Fawson’s death. She said Margaret wanted an autopsy to know the reason why her mother died. She said that she was unaware of the results of the autopsy. [156] She testified Margaret had discussed with her her mother’s dementia but provided no details. She said she did not know Theresa Fawson’s health care needs. She said she listened when Margaret talked about her mother’s home care and her concerns about St. Vincent’s Guest House. Lynn Jones [157] Lynn Jones testified she had known Margaret Fawson both at work and personally since 1979. She described her as being fun or serious depending on the circumstances and very pointed in her opinions. She said she could be very kind and caring but could be persistent if she had an issue she believed in. [158] She said Margaret visited her regularly and they did things together. She said Margaret felt part of the Fawson family but things changed with Jim and Frank. She said the change occurred when their mother was taken into care since Margaret did not feel that she or her mother had been treated properly. [159] She said Margaret told her of a fight with Frank and showed her bruises on her arm and face. She was shown the photo which Kathy Mitchell brought in (Exhibit 24) and said the injuries looked like that. She could not place the time of the photo but thought it was around the time she herself worked in Dartmouth, that is, some time between 1979 and 1991. She said on cross-examination she did not doubt Margaret. [160] She too testified she had no concerns with Margaret’s mental health other than Margaret being “obsessed” with what happened in her department when the jobs became provincial not federal. [161] On cross-examination, she was asked about Theresa Fawson being taken into care by Adult Protection. She said Margaret told her that Jim and Frank organized it to take her mother away. She said Margaret blamed them and said they were “in cahoots” with Adult Protection. She had also discussed with her her concerns with her mother’s home care. She said Margaret often discussed her displeasure at not spending time with her mother. She said she could not go to visit her mother in the nursing home because her brothers were “in cahoots with the system.” She testified that Margaret felt she was equipped to care for her mother because of her gerontology degree and wanted to bring her home. She testified that she herself knew Theresa Fawson had dementia. [162] When Theresa Fawson died, she said Margaret wanted an autopsy because she did not trust that her mother had been properly cared for and believed that, if she had had proper care, she would have lived. Sara MacInnis [163] Sara MacInnis is the Coordinator of the Eastern Shore Job Search Centre and the Eastern Shore Fisherman’s Protective Association. Margaret Fawson was the project officer who oversaw the government contract with those organizations. She testified she saw Margaret monthly and sometimes as much as three times per day. She said she first met Margaret in 2000. She said Margaret was very good to her, “kind of a mentor.” She said they did not have a social relationship. [164] She said they only discussed Margaret’s family briefly. She said she could recall that Margaret disliked Jim and that she did not get along with him. She said that Margaret had not mentioned family gatherings to her. She said she had no concerns about Margaret’s mental health. [165] She knew nothing of the adult protection matter when Theresa Fawson was taken into care. She did not know if Margaret lived with her mother but said she understood that she looked after her mother. She also recalled Margaret telling her that she visited her mother in a nursing home. She testified that she believed Margaret mentioned her mother having dementia but said Margaret did not discuss with her concerns with respect to home care or the nursing home. She agreed on cross-examination that Margaret kept some parts of her life very private. Norman Doucet [166] Norman Doucet is Sandra Deveau’s cousin and is a social worker. He has had some training with respect to mental health but, on cross-examination, agreed that he has no knowledge of the diagnostic protocols for mental health issues. He said he had no concerns with Margaret’s mental health. [167] He met Margaret Fawson around 1979 through his cousin, Sandra Deveau. He said that around 2000 she asked him to recommend a lawyer so that she could have a “good will” done because she knew Jim would contest it. He said that conversation was around the time when Margaret Fawson’s mother went into the nursing home. He said she told him she and Jim had never gotten along. [168] He said Margaret was very social and knew a lot about financial matters. He said she was very sad that her mother was in the nursing home and wanted her home. He said that Margaret never discussed with him why her mother was in a nursing home and never mentioned her mother having dementia [169] He had never been in her home. When shown photographs of the house as it was at the time of Margaret’s death, he said they were disturbing but, as a social worker, he had seen worse. He said children would have to be removed from such surroundings but, if the parents were competent, there was nothing they could do with respect to them. [170] He said on cross-examination that Margaret kept her family life to herself. Nicholas Colp [171] Nicholas Colp lives next door to the Fawson property on Prospect Bay Road. He lived there at the time the Fawson family moved in in 1996. He said they were good neighbours. He said Margaret Fawson was hard working, very intelligent, opinionated and strong willed. [172] He said the house was in normal condition until Margaret started collecting what he referred to as antiques. He described her as a “shopaholic.” He said the house was “piled full of stuff” that Margaret bought over a period of ten years. He referred to it as a “warehouse.” [173] He said that Margaret had not discussed the adult protection issue with him nor the fact that she had been rejected by Adult Protection to care for her mother. He said she never referred to the home caregivers but said she told him she thought her mother was not being fed properly at the nursing home. [174] He said he saw no odd behaviour from Margaret until about a year and a half before she died. He said she was dishevelled and seemed withdrawn. Dr. Jeffery Colp [175] Dr. Jeffery Colp was Margaret Fawson’s family doctor and is the son of Nicholas Colp. His practice is in Hatchet Lake. Margaret had been his patient since 1996. He said he saw her intermittently and also received reports from Dr. Gee, the endocrinologist to whom he had referred her because of her diabetes. [176] Dr. Colp treated her for her diabetes and also for stress around 2001 with respect to the family dispute concerning her mother’s care. He prescribed medication for stress on November 29, 2001. He said that, until 2001, her diabetes was controlled by diet but, in 2001, he prescribed oral medication. Around July 2007, he testified that the specialist said the next step would be insulin. [177] His chart note from November 1, 2001 referred to Margaret’s mother being in hospital and said to be incompetent, but Margaret did not think she was. She was having a hard time, according to his notes, and he put her off work until December 15, then extended it to March 15 of the following year. [178] Dr. Colp’s chart note of June 28, 2002 refers to fights over Theresa Fawson’s care. He said he suggested to her that she seek counselling but she declined. However, he said he did not think she needed a mental health assessment. [179] Dr. Colp saw Margaret regularly throughout 2002, a few times in 2003 and then there was a gap in visits between January 2004 and late March 2006. Dr. Colp’s chart notes indicate that throughout this period Margaret saw Dr. Gee. There was a reference to job stress in 2004 and Dr. Gee had recommended that Margaret pursue counselling but she did not request it. [180] Dr. Colp last saw Margaret on May 15, 2008 which was more than two and one half years prior to her death. She told him at that time she had read some books with respect to changes in her diet that would help with her diabetes. His notes, however, indicate that he told her that she would soon need insulin. His last prescription for oral medication for her was at that time. He testified that he would have preferred to see Margaret every three months but, if her blood sugars were well controlled, seeing her every six months would be sufficient. Dr. Gee’s last report was April 7, 2009 which was more than one and one half years before Margaret’s death. [181] Dr. Colp’s chart notes of November 1, 2001 refer to Margaret mentioning on that date that she had blurred vision. His chart note of August 6, 2002 refers to Margaret saying that both of her eyes were bothering her. She had complained of not being able to see even with her glasses. Dr. Colp referred her to an opthamologist. He said Margaret had cataracts removed from both eyes in 2002: the right eye in October and the left in December. He said there was no mention in his notes of any eye injury. [182] On cross-examination, Dr. Colp was shown the photo brought in by Kathy Mitchell (Ex 24). He said the redness on Margaret Fawson’s cheek could have been hormones, a sunburn and was possibly a facial injury as he said there seemed to be some swelling. On re-examination, he said it also could be consistent with being struck. THE WILL [183] Colin Bryson, Q.C. took instructions from Margaret Fawson for her will. He had no independent recollection of taking instructions and relied on his file notes (Ex 12, 13, 14, 15). From those notes, it is not clear that he met with Margaret Fawson in person or by telephone, or whether he canvassed with her the extent of her family. He testified that it was his practice to find out about the client, their family and their assets. He said he must be satisfied the client knows what they are doing and why. [184] With respect to Margaret Fawson, he said he spoke to her on April 20. His notes (Ex 12) indicate she named her executrix and also wanted her to have her Power of Attorney. He then noted her real property and its disposition. He also made note of a list of personal property including mutual funds and RRSP’s. [185] On the same day, he then emailed Margaret Fawson a draft of the will and Power of Attorney. Margaret replied on April 22 with further information and suggested that she execute the will late the next day. [186] Unfortunately, Colin Bryson was out of the office on that afternoon. As a result, Robert Clarke and another lawyer attended for its execution. [187] Colin Bryson said he did not recall any discussion about Margaret Fawson’s relatives but said he normally discussed potential heirs. He said there is no such indication in his notes. He agreed on cross-examination by Frank Fawson that it was possible he was not told there were other siblings. [188] He said, based on his notes, he believed she understood what she owned and where it should go on her death. He said, based on his experience, he thought she was a detail-oriented person from her review of the will. [189] He wrote to Margaret Fawson on his return to the office on Monday but did not enclose the will. He said he did not know when she got the will. [190] He said there were no dispositions in the will which seemed odd to him. On cross-examination, he said there is nothing in his notes to indicate he canvassed with Margaret Fawson all her next of kin. He said it would be unusual to make a bequest to parents because normally they would predecease their children. [191] On cross-examination, he said that, if there had been any mention of a possible challenge to the will, he “probably would have noted that.” [192] Roberta Clarke, Q.C. attended with another lawyer in her firm for the execution of the will. She had a limited role and little opportunity to assess Margaret Fawson. She testified that the best opportunity to determine testamentary capacity is when instructions are taken for a will. At the time of execution, she said she would have had no indication of any problem with testamentary capacity or she would not have had Margaret Fawson execute the will. THE LAW [193] The parties do not disagree about the law that applies with respect to testamentary capacity. They cite Banks v. Goodfellow (1870) L.R. 5 Q.B. 549 at p. 565: ... It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties - that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made. [194] Nor do the parties disagree about the burden of proof in a case where it is alleged, as here, that Margaret Fawson was suffering from a delusion when she executed her will on April 23, 2004. [195] In Re Marsh Estate (1990), 99 N.S.R. (2d) 221 (Probate Court), (upheld on appeal (1991), 104 N.S.R. (2d) 266 (C.A.)), Bateman, J. (as she then was) said at paragraphs 14 and 15: 14 A person can suffer from delusions yet maintain testamentary capacity provided those delusions do not affect the testator’s decision as to the bequest. 15 It is further stated that if insane delusions on any subject prove to have existed, the burden of proving that the delusions under which the testator labored were of such a character that they could not be reasonably supposed to affect the disposition of his property is upon those who support the Will, although the terms of the Will itself may be sufficient to discharge the onus (The Canadian Law of Wills, 3rd edition, Thomas Feeney). [196] In Vout v. Hay, [1995] 2 S.C.R. 876, the Court considered the issue of suspicious circumstances. Sopinka, J. said in paras. 26 and 27: 26 Suspicious circumstances in any of the three categories to which I refer above will affect the burden of proof with respect to knowledge and approval. The burden with respect to testamentary capacity will be affected as well if the circumstances reflect on the mental capacity of the testator to make a will. Although the profounder of the will has the legal burden with respect to due execution, knowledge and approval, and testamentary capacity, the profounder is aided by a rebuttal presumption. Upon proof that the will was duly executed with the requisite formalities, after having been read over to or by a testator who appeared to understand it, it will generally be presumed that the testator knew and approved of the contents and had the necessary testamentary capacity. 27 Where suspicious circumstances are present, then the presumption is spent and the profounder of the will reassumes the legal burden of proving knowledge and approval. In addition, if the suspicious circumstances relate to mental capacity, the profounder of the will reassumes the legal burden of establishing testamentary capacity. Both of these issues must be proved in accordance with the civil standard. There is nothing mysterious about the role of suspicious circumstances in this respect. The presumption simply casts an evidentiary burden on those attacking the will. This burden can be satisfied by adducing or pointing to some evidence which, if accepted, would tend to negative knowledge and approval or testamentary capacity. In this event, the legal burden reverts to the profounder. [197] The rebuttal presumption of testamentary capacity means that those attacking the will must bear the burden of showing some evidence that could tend to negative testamentary capacity. If that is done, then the burden shifts back to the proponent of the will to show, on a balance of probabilities, that the testator had testamentary capacity. [198] In this case, James Fawson must rebut the presumption of testamentary capacity by adducing some evidence of suspicious circumstances. If he does so, then Sandra Deveau must establish testamentary capacity on a balance of probabilities. [199] In Re Keddy Estate, 2002 CarswellNS 451 (Probate Court), Hall, J. referred to the burden of proof and suspicious circumstances at para. 25 as follows: 25 The profounder of a will has the burden of proving on a balance of probabilities, among other things, that the testator had the mental competence or capacity to make a will. Once due execution of the will is established, the profounder has the benefit of a rebuttal presumption that the testator had the capacity to make a will. Where ‘suspicious circumstances’ are present, however, the presumption may not be relied upon. The question then becomes, what constitutes suspicious circumstances and how do they affect proof of the mental capacity of the testator. [200] He then quoted the above passages from Vout v. Hay. That passage was also quoted by Murphy, J. in Re Willis Estate, 2009 NSSC 231. He said in para. 10: [10] The Supreme Court noted, at para. 25 in Vout, that the suspicious circumstances which will rebut the presumption in favour of a will’s validity may relate to various issues. The Court identified (1) circumstances surrounding the preparation of the will, (2) circumstances tending to call into question the capacity of the testator, or (3) circumstances tending to show that the free will of the testator was overborne by acts of coercion or fraud. It is the second category which is in issue here. [201] Murphy, J. continued in para. 16: [16] To resolve the issues raised in this case, the Court must therefore determine: (a) whether suspicious circumstances are present so that the initial presumption of the Second Will’s validity ceases to operate; (b) if suspicious circumstances surrounding the preparation of that will are established, whether the Respondents as proponents of the Second Will have met their civil burden to establish execution; (c) if the Respondents establish that Jams Willis executed the Second Will but circumstances raise a suspicion that the testator’s free will was overborne by coercion, whether the Applicant who attacks the Second Will satisfies the burden to establish undue influence. [202] In Nieuwland v. Yorke Estate, 2011 NSSC 19, Robertson, J. canvassed the issue of suspicious circumstances. She quoted Feeney’s Canadian Law of Wills, 4th ed. (Markham: Lexis Nexis, Looseleaf updated Dec. 2010) as follows in para. 11: 2.19 ... The idea of suspicious circumstances originated in Barry v. Butlin. Davey L.J. advanced the general proposition that ‘wherever a will is prepared under circumstances that 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.’ ... 2.25 In Ostrander v. Black, Granger J. summarized the results of Vout, and added that a mere allegation of lack of capacity was not enough to defeat the presumption of capacity and knowledge and approval of contents - those attacking the will must establish some basis in evidence for the proposition that the testator lacked capacity. Suspicious circumstances could constitute the evidentiary base, and, in the event, the profounder would regain the formal onus of proving capacity which would inevitably entail removing the suspicions. In other words, a court might draw an inference from the facts before it (from the ‘suspicious circumstances’), that there was either a lack of capacity or a lack of knowledge and approval of contents of the will. In such cases the propounders of the will would have to meet or rebut that inference with positive evidence of capacity and knowledge and approval of contents to secure probate. If the evidence in this regard is not clear and convincing, if the propounders offer little or no responsive evidence, the will will be rejected. The more recent judgment in Scott v. Cousins, also addressed the relationship between evidence of suspicious circumstances that is sufficient to rebut the presumption of testamentary capacity and such evidence that might be necessary to establish undue influence. The decision confirms that the strength of inference lies on a continuum depending upon the evidence in a particular case. ... [203] She also quoted Feeney in para. 7 as follows: 2.15 It is a question of fact - one of degree - in each case whether the person has sufficient mental power left to appreciate and understand the testamentary act. There may be good reasons for the apparent asymmetrical or adverse treatment of family members in a will. ... [204] In Scott v. Cousins, [2001] O.J. No. 19, (Ont. S.C.J.), Cullity, J. referred to the burden to rebut the presumption of testamentary capacity, saying in para. 41: 41 The reference to an evidential burden in propositions 5 and 6 refers to a burden of adducing sufficient evidence to ‘raise an issue’ of knowledge and approval or testamentary capacity - cf., Sopinka, Lederman, Bryant, The Law of Evidence in Canada (2nd edition, 1999), para. 3.15. It is not necessary for those opposing probate to do more than this. In particular, they do not have to disprove knowledge and approval or testamentary capacity on a balance of probabilities. While, in most other areas of the law, evidence sufficient to raise an issue is said to be that from which a rational trier of fact could find in favour of the person with the evidential burden on the particular issue -ibid, at paras. 3.15, 3.16, 3.20 and 5.37ff - it seems that, in the context of contested wills it may be preferable, at least until further guidance has been provided, to describe the standard in terms of evidence that, in the time-honoured phrase, “excites the suspicion of a court”; cf., ibid., para. 3.21. I say this because it has sometimes been said in the past that all the persons opposing probate have to do is to raise ‘a doubt’: for example, Re Davis, [1963] 2 O.R. 666 (Ont. C.A.), at page 683. This, and evidence which, if accepted, would raise ‘a well-grounded suspicion’ or would ‘tend to negative knowledge and approval or testamentary capacity’, may or may not, be something less than a triable issue for the purposes, for example, of Rule 20 of the Rules of Civil Procedure. [205] The Applicant must not prove Margaret Fawson had a delusion but only present some evidence to rebut the presumption of testamentary capacity, leaving it to Sandra Deveau to then satisfy the court that Margaret Fawson did in fact have testamentary capacity when she executed her will. [206] The focus must be on the time when Margaret Fawson executed her will. However, if there is some evidence that Margaret Fawson had the same delusion both before and after its execution, it may be inferred that she had the delusion at the time she executed the will. DELUSION [207] In Theobald on Wills (16th ed., London, Sweet & Maxwell, 2001), the authors set out the test for testamentary capacity in para. 3-02: 3-02 In order to have testamentary capacity a testator must understand: (i) the effect of his wishes being carried out at his death, though it is not necessary that he should view his will with the eye of a lawyer and comprehend its provisions in their legal form; (ii) the extent of the property of which he is disposing; and (iii) the nature of the claims on him. The testator must have “a memory to recall the several persons who may be fitting objects of the testator’s bounty, and an understanding to comprehend their relationship to himself and their claims upon him” so that he can decide whether or not to give each of them any part of his property by his will. [208] The authors then consider the effect of delusions on testamentary capacity saying in the following paragraph: 3-03 A delusion in the mind of a testator deprives him of testamentary capacity if the delusion influences, or is capable of influencing, the provisions of his will. But a delusion does not have this effect if it cannot have had any influence upon him in making his will. A testator suffers from a delusion if he holds a belief on any subject which no rational person could hold, and which cannot be permanently eradicated from his mind by reasoning with him. ... In practice it may be difficult to distinguish between grave misjudgment and delusion, particularly in relation to a testator’s assessment of the character of a possible beneficiary under his will. ... A will is not invalid merely because in making it the testator is moved by capricious, frivolous, mean or even bad motives. If he has testamentary capacity he ‘may disinherit ...his children, and leave his property to strangers to gratify his spite, or to charities to gratify his pride. [209] In Royal Trust Corporation of Canada v. Saunders, 2006 CanLII 19424 (Ont. S.C.), Blishen, J. said at para. 62: [62] In order to affect testamentary capacity, a delusion must: 1. be one of ‘insanity’; and 2. be in relation to the testator’s property or expected beneficiaries. [210] In this case, Dr. Grainne Neilson was accepted as an expert able to give opinion evidence as a psychiatrist. Her report is Exhibit 2. She was asked three questions: 1. Is it possible for a psychiatric disorder such as a persecutory delusional disorder to have a narrow scope such that it affects only one aspect of persons psychosocial functioning, leaving the remainder of their lives and functioning relatively intact? 2. Based on interviews of family members and collateral sources, but without the benefit of interviewing the individual, is it possible to render an opinion about the potential presence of a mental disorder in Ms Fawson? 3. Is it possible that the presence of a mental disorder impacted Ms. Fawson’s testamentary capacity? [211] To the first question, she answered “yes.” (p. 9) In relation to the issue of impairment in functioning, one of the leading textbooks in Psychiatry (Kaplan and Shaddock, Comprehensive Textbook of Psychiatry Volume 1 Sixth Edition, Williams and Wilkins publishers Baltimore 1995 pg 1032) notes: In general, in delusional disorder, the patient’s delusions are well systematized and have been logically developed. . . . Impairment of functioning or personality deterioration is minimal, if it occurs at all. General behaviour is neither obviously odd or bizarre. [212] On page 10 of her report, she referred to a study: . . . which notes that such patients do not regard themselves as ill, typically do not seek psychiatric referral, remain relatively high functioning and frequently do not come to clinical attention. It notes ... ‘patients with delusional disorder experience little impairment and hence are able to carry out their occupational responsibilities. ... [213] With respect to question 2, she answered as follows at page 11: The answer is yes, but the opinion is speculative at best. She referred to “the testimony of relatives and or friends (who may be far from disinterested).” [214] Her answer to question 3 at page 12 was as follows: The answer is, yes it is possible. Whether it is probable is, ultimately, a judicial determination and I will try to outline for you the factors that will likely be taken into consideration in this enquiry. [215] She continued on p. 12: As noted above, first and foremost among the difficulties in performing an assessment of an individual’s testamentary capacity is that in the usual case it is not a contemporaneous evaluation but instead involves a retrospective assessment of a deceased’s mental state (based on whatever information that may be available), and then applying this analysis to the basic capacity requirements. Except in clear-cut cases of dementia or mental retardation, the conclusion that any mental symptoms directly influenced the action at the time of writing the Will becomes quite a speculative undertaking. [216] She then said on p. 13: It is speculative of course to surmise Ms. Fawson’s decision-making in relation to the exclusion of James Fawson from her Will. No prior Will were available for inspection to determine whether this represented a change of attitude, or whether this was actually her competent wish. However, it is not inconceivable that her unusual (and false) beliefs related to his working against her, and to his orchestrating the hasty death of their mother for his own financial gain played a role in this. Anyone who was seen to be supporting James Fawson in his effort, and who might also be entitled to her bounty, was also excluded. Thus, she specifically excluded her brother James and her brother Frank, who sided with James Fawson in his decisions. [217] In her testimony, Dr. Neilson said that a person suffering from a delusion can function normally in a job, in relationships, school, etc. and, therefore, the delusion may not be obvious. She said that, outside the narrow area of the delusion, the person seems “intact”, with logic unimpaired outside the delusion. [218] On cross-examination, she agreed that her answers to questions 2 and 3 were speculative and that, to a large extent, she used information provided to her by James Fawson. She said, however, she also had access to the notes from St. Vincent’s Guest House and of the court hearings with respect to adult protection and the guardianship. [219] Her report is important for its explanation of how a delusion can impact only one part of a person’s life. In my view, this is helpful in determining if there is evidence of suspicious circumstances such that the presumption of testamentary capacity is rebutted. [220] In his written submissions after trial, counsel for the Estate of Margaret Fawson refers to Dr. Neilson’s report and evidence as “junk science.” I reject that characterization. Dr. Neilson’s report and evidence refer to a recognized form of mental illness and how it can affect a person suffering from it. She did not give an opinion that Margaret Fawson suffered from it or, if she did, the effect it would have on her capacity to execute a valid will. [221] Because of the limitations of her report, which she recognized, I conclude I should give little weight to her speculative opinions which are her answers to questions 2 and 3. However, having her expert opinion on the nature of a delusion and how it manifests itself at times and can be unnoticed most of the time is helpful to me in assessing whether there were suspicious circumstances surrounding the making of Margaret Fawson’s will. [222] The parties admit the formalities of execution. The question is whether there is some evidence Margaret Fawson was suffering from a delusion which affected her testamentary capacity. [223] The issue is whether there are suspicious circumstances surrounding her exclusion of James and Frank from her will. Did she have a delusion about her mother’s incompetence which led to the deterioration of her previously good relationship with Jim and Frank? Did she exclude them from her will because she believed her brothers conspired with (were “in cahoots with”) Adult Protection Services and St. Vincent’s Guest House to take her mother, who was competent, away from her, first by putting others in charge of her care in her home and then by putting her in a nursing home? Or, did she simply not like or trust Jim and Frank and decide she would not leave them anything in her will? ANALYSIS OF EVIDENCE [224] The evidence paints a picture of Margaret Fawson. There was evidence about her from those who met her through work and became social friends. There was evidence from a former neighbour and from her family doctor. There was also evidence from her three brothers and from two cousins. In addition, Charles Anderson, a social worker at St. Vincent’s Guest House, filed an Affidavit and testified as did Donna Pettipas from Adult Protection. [225] As well, I have reviewed the documentary evidence attached to the Affidavits of Charles Anderson and Donna Pettipas as well as other exhibits. [226] My focus in having related this evidence was on determining if there were “suspicious circumstances” surrounding the execution of Margaret Fawson’s will. [227] Sandra Deveau, as the proponent of the will, focussed on the normalcy of Margaret Fawson’s life as she and her witnesses knew her, as did Patrick Fawson. James Fawson, Frank Fawson and their witnesses focussed on Margaret Fawson’s relationship with James and Frank and upon Margaret’s reaction to her mother’s dementia and her in-home, and subsequent nursing home, care. Their position is that Margaret Fawson led a normal life in many respects but had a delusion in part of her life which she hid from her friends and work associates. [228] Although her friends testified that they never had any concerns about Margaret’s mental health, many admitted there were parts of her life they knew nothing about. They also said they had no reason to doubt her when she said she did not like Jim and Frank. They had never visited Margaret in her home and none said they knew her mother or had any comment on whether she had dementia from first-hand knowledge. Except for Kathy Mitchell’s attendance with Margaret at St. Vincent’s Guest House on the day after Theresa Fawson’s death, none of them had visited St. Vincent’s Guest House with Margaret. These witnesses appeared as caring, concerned friends whose only interest was in trying to carry out Margaret’s wishes as expressed in her will and in their conversations with her about leaving nothing to Jim and Frank. However, I conclude they did not know the family situation except through Margaret’s eyes. [229] Margaret’s friends were unaware of her previous close relationship with Jim and, to a lesser degree, with Frank. They knew her long before September 2001 but had little knowledge of her family situation prior to that time. They were unaware that Patrick had distanced himself from the family. [230] Sandra Deveau testified that Margaret was very proud of Jim and had driven with her past Jim’s home in Bedford. On another occasion, they visited his home in Windsor but only the children were home. She thought this was in the mid-1990's. [231] Kathy Mitchell testified that she and Margaret had driven to the Bridgewater area and had visited Frank at his home. She said the visit was not lengthy but was cordial. She could not recall when this was. [232] Nothing negative was said with respect to either Jim or Frank until after September 2001. It was only after that time Margaret began to tell her friends how she disliked and did not trust Jim and Frank. [233] Sandra Deveau was questioned about the incidents at St. Vincent’s Guest House that Charles Anderson and James Fawson testified about and about the incidents which are documented in Theresa Fawson’s chart notes. Her response was “That’s not the Margaret I knew.” [234] That, in my view, is the heart of the issue. Were there, in a sense, two Margaret Fawsons? [235] The evidence portrays Margaret Fawson as: - a capable worker who advanced through the Civil Service during her career; - a responsible employee in charge of contracts with outside agencies; - a good friend who, in her social life, went on outings with and travelled with her friends and visited them in their homes; - a kind, intelligent, caring woman who was very generous to family and friends; - a wise financial manager who had personal property of approximately $300,000.00 (including investments and RRSP’s). [236] To the contrary, there is the evidence of Charles Anderson and Donna Pettipas. This is evidence of independent witnesses and I accept their testimony. I also accept as accurate the notes attached to their Affidavits from the files at St. Vincent’s Guest House and Donna Pettipas’ file. Importantly, these notes were made at times before Margaret’s death and the commencement of this proceeding. This is independent evidence of the incidents surrounding the health and care of Theresa Fawson and Margaret Fawson’s role in, and reaction to, it. In my view, this evidence is very helpful in understanding Margaret Fawson and her relationship with Jim and Frank. [237] This evidence portrays Margaret Fawson as: - a negligent caregiver for her mother; - lacking in an understanding of her mother’s dementia and her mother’s needs; - a disruptive influence on her mother’s at home care, doing irrational things to interfere with her care as provided by RJF; - so disrupting staff and residents of St. Vincent’s Guest House that, within six months of her mother’s arrival there, she had restrictions placed on her visits; - an extremely angry and intimidating woman who argued with staff and threatened them with complaints to their professional bodies and lawsuits. [238] In addition, there is other evidence. Her brother, Patrick, testified that Margaret had not filed income tax returns for six years prior to her death. There are also the photographs that were taken of Margaret Fawson’s home on December 26, 2010, the day after her death (Ex 11). They portray a home that might best be described as the home of a “hoarder,” jammed with belongings and filthy. As well, there is the evidence of Nick Colp describing the St. Margaret’s Bay house as a “warehouse.” [239] The evidence of James Fawson and Frank Fawson portrays both sides of Margaret. I accept their evidence that the had a good relationship with Margaret until September 2001. There is independent confirmation of their relationships from the witnesses who went with Margaret to Jim’s and Frank’s homes. I also accept their evidence that it changed after September 2001. The nature of the relationship thereafter is confirmed by the evidence of Margaret’s friends. Patrick too confirmed it. Only Norman Doucet testified that it was his understanding that Margaret and Jim never got along. I conclude he was mistaken in that impression. [240] The photographs in evidence (Exhibit 25) show: Margaret with Jim and Frank; Margaret and her mother with Jim’s family and Frank; and Jim with Margaret and her mother at Margaret’s graduation. Although these are older photographs, they show the close family relationship Margaret and her mother had with Jim and Frank. [241] There is conflicting evidence of Margaret’s relationship with Jim and Frank. It must be viewed in the context of the two sides of Margaret Fawson referred to above. [242] I find as a fact that Margaret Fawson did not believe her mother had dementia. The Adult Protection records dating from Theresa Fawson’s hospitalization show that Margaret did not believe her mother had dementia and talked about getting a further assessment which would show her mother to be competent. Even after her mother died, I conclude that one of the reasons Margaret wanted an autopsy was to show that her mother did not have dementia. I conclude this was a belief no rational person could have. The evidence was over-whelming that Theresa Fawson was in the advanced stages of dementia. Margaret could not be convinced of this even after going through the Adult Protection hearings and the guardianship hearing. She raised the issue of her mother’s competence in the latter. [243] She tried to have her mother reassessed, saying that it would change everything if her mother was found to be competent. [244] Margaret could not be convinced her mother was incompetent. She continued in that belief even after her mother’s death. [245] Margaret believed Jim and Frank took her mother away from her care unnecessarily. She believed she could care for her mother herself at home. She often referred to her gerontology degree. Margaret believed that Jim and Frank put their mother in a nursing home to die and that they wanted their mother’s money. These beliefs are entirely contradicted, in my view, by the evidence and, in particular, by the independent evidence. [246] There is evidence of the state of neglect in which Theresa Fawson was found when hospitalized. This evidence shows that Margaret could not in fact care for her mother. She left her mother alone all day while she worked. She failed to give her her diabetes medication and had not had her prescription filled for a year. She had not taken her mother to her family doctor for three years in spite of her mother having had a stroke three years previously, being diabetic and suffering from the beginnings of dementia at the time of the stroke. Even after she returned from work on September 28, 2001 and found her mother on the floor, she simply gave her a drink of juice and put her in a chair. It was only one to two hours later that she called an ambulance when her mother was having a seizure [247] Throughout the next number of years, Margaret continued to minimize not only her mother’s dementia but also her need for a diabetic diet. She was known to have given her mother food at St. Vincent’s Guest House. She was only permitted to feed her in the dining room and only the meals provided by St. Vincent’s Guest Home. Margaret’s approach to her own diabetes is instructive in this regard. [248] Her family doctor, Dr. Colp, testified that he told her that her oral medications would soon have to be replaced by insulin injections. She told him instead she had read about diet controlling diabetes. She had not seen him for more than two and a half years prior to her death, although his preference was for visits every three or six months. She had not received oral medication prescriptions from Dr. Colp in more than two and a half years. [249] Theresa Fawson did not go to the nursing home to quickly die as Margaret predicted. She lived there from late November 2002 until November 3, 2010 with a controlled diet, taking medication and with the level of supervision and care necessary for an elderly woman with dementia. [250] Jim’s care and concern for his mother is reflected in Adult Protection’s approval of his application for guardianship. Furthermore, both Charles Anderson and Donna Pettipas testified about Jim’s care and concern for his mother and the notes attached to their affidavits independently reflect this. [251] Although Frank did not seek guardianship, it is clear that Adult Protection found him to be appropriate in his concerns for his mother. It was to Jim and Frank that Adult Protection turned for a reasoned approach to their mother’s care. Similarly, when Jim was unavailable on a few occasions, St. Vincent’s Guest House contacted Frank. [252] Margaret continued to believe she could care for her mother. She wanted her home with her. This is in spite of the evidence of her lack of ability to care for her and the evidence of the care Theresa Fawson had in the nursing home. For example, she was not allowed to leave the floor on which she resided. She had to be helped to dress and to be fed. [253] It is not rational to believe she could care for her mother at home without any assistance while working full-time outside the home. [254] Jim and Frank convinced Adult Protection to allow their mother to return to her home with 24/7 care at great expense. If Theresa Fawson had gone immediately to a nursing home, the $165,000.00 which I conclude was spent on home care would not have been spent. Theresa Fawson’s care costs were not utilizing her entire monthly income. Jim, as her guardian, donated the excess in her account at St. Vincent’s Guest House to the nursing home. Had that money still been Theresa Fawson’s at her death, that amount, approximately $15,000.00, plus $165,000.00 spent on home care, would have formed part of an estate of $180,000.00 to be shared on an intestacy equally among all four siblings. Had Jim and Frank truly been “after her money,” they would not, I conclude, have been supportive of the costly home care. [255] Furthermore, it was well known that their mother had deeded her houses and land to Margaret after the parents’ separation. Theresa Fawson’s estate would not include these assets. [256] Margaret knew she owned the property her mother had given her. These were the principal family assets. She also knew her mother had 24 hour in-home care. She would have known that care was costly and reducing her mother’s finances considerably. [257] To believe James and Frank wanted her mother’s money is irrational in the face of this. [258] Margaret also believed that James and Frank were “in cahoots” with “the system: and that they and staff at St. Vincent’s Guest House were “murdering” her mother. [259] This is in spite of the fact that Theresa Fawson received good care at St. Vincent’s Guest House and lived there for almost 8 years with proper diet and medication. To suggest that someone with Theresa Fawson’s health problems and yet who lived to be 84 years old was “murdered” by her brothers and the nursing home staff over an 8 year period is not rational. [260] The question is whether Margaret’s actions with respect to her mother and her brothers, Jim and Frank, lead to the conclusion that there were suspicious circumstances surrounding the making of her will. [261] The evidence of Colin Bryson who prepared the will is, in my view, not helpful in this regard nor is the testimony of Roberta Clarke who attended only for the execution of the will Colin Bryson prepared. Mr. Bryson could not recall if he met Margaret in person. His notes of her instructions and their email exchange shed little light on the issue of her testamentary capacity insofar as the issue of delusion is concerned. [262] It is clear from Colin Bryson’s notes that there is no mention of her mother or her brothers, Jim and Frank. Nor is there any reference to the property she was bequeathing having been the property of her parents and then of her mother. There is no mention of her intention to leave her brothers nothing. [263] Since the subjects were not mentioned by Margaret, nor the details of family members elicited by Colin Bryson, Margaret would have appeared to be normal to him just as she was to her friends and co-workers. [264] Margaret Fawson believed, in September 2001 and prior to that, that her mother was not incompetent, that she did not have dementia. At the time of Theresa Fawson’s death, Margaret believed she did not have dementia. Margaret believed Jim and Frank took her mother away from her, prevented her from seeing her and put her in a nursing home where they and the staff of St. Vincent’s Guest House conspired to murder her. These irrational and unfounded beliefs and the actions they caused continued throughout the time period from September 2001 to November 2010, including the time when Margaret Fawson executed her will in April 2004. [265] These beliefs and the actions of Margaret Fawson with respect to her mother, her brothers, RJF staff and the staff at St. Vincent’s Guest House are evidence of suspicious circumstances surrounding the execution of Margaret Fawson’s will. Sandra Deveau said this was not the Margaret Fawson she knew; however, I conclude it was the Margaret Fawson who executed her will. I conclude from all this evidence that there were suspicious circumstances surrounding the execution of Margaret Fawson’s will. [266] The presumption of testamentary capacity has been rebutted by the evidence. The onus then shifts to the proponent of the will to satisfy me that, in spite of the suspicious circumstances, Margaret Fawson had testamentary capacity and, therefore, the will is valid. [267] I conclude the proponent has not met this onus. The evidence of the proponent and her witnesses, whose evidence I have reviewed at length, does nothing to satisfy me that it is more likely than not that Margaret Fawson had testamentary capacity at the time she executed her will. [268] There must be positive evidence of capacity which is clear and convincing. The suspicion must be removed. No explanation was given of Margaret’s bizarre behaviour or any explanation which would satisfy me that her reasons for executing Jim and Frank from her will were the actions of a mind which gave full consideration to those whom she should benefit in her will. [269] Margaret told her friends she did not like or trust her brothers. However, I conclude that Margaret’s reasons for the dislike and the mistrust were grounded in her delusion. [270] I distinguish Margaret’s delusion from a grave misjudgment of character. The change in her view of James and Frank occurred after September 2001. I accepted the evidence that there was a good relationship before that time. I cannot conclude that their characters changed after that date. I conclude it was Margaret’s delusion about their mother and the reasons why she was not allowed to care for her that resulted in her changed opinion about James and Frank. [271] I conclude it was this delusion which resulted in Margaret Fawson executing the will which is before the court. Margaret could continue to work and relate to her friends. To paraphrase the words of Dr. Neilson, Margaret’s general behaviour was not obviously odd or bizarre. She functioned in most respects with little impairment and continued to carry out the responsibilities of her job. But when it came to her mother and James and Frank, Margaret had an irrational belief which affected her inter-action with James and Frank and ultimately affected the dispositions in her will. These irrational beliefs resulted in Margaret leaving nothing to James and Frank in her will. [272] There is no clear and convincing evidence that Margaret Fawson understood in a rational way who should benefit under her will. The suspicion that surrounded the making of her will has not been removed. OTHER EVIDENCE [273] In my view, there was evidence which was not related to the issue of suspicious circumstances. [274] There was reference to a box of documents which “went missing” on Boxing Day 2010, the day after Margaret Fawson’s death. There is no evidence that James Fawson or Frank Fawson took it. Even if there was, I do not see any connection between that and proof that there were no suspicious circumstances surrounding the execution of Margaret Fawson’s will. They did not know Sandra Deveau and had no relationship with Patrick, but found them in Margaret’s house. [275] There was evidence about the Fawson lands in Prospect Bay. It appears some lands were conveyed to James Fawson and some to Margaret Fawson (through her mother). I do not see how that explains the suspicious circumstances surrounding the execution of the will. There is no evidence of the value of the lands conveyed to James Fawson as compared to the lands owned by Margaret Fawson. Nor is there any indication that was Margaret Fawson’s reason for excluding James Fawson from her will. The witnesses who gave an explanation said it was because she did not like or trust James Fawson. The lands have nothing to do with Frank Fawson and he too was excluded from the will. [276] Similarly, there was evidence about Margaret Fawson’s investment in what was called the River John property. Witnesses related that Margaret was unhappy about the prospect of losing her $15,000 investment. James Fawson testified that Margaret would have received an income tax benefit from the investment. As he put it, she got her money “back through income tax.” [277] Patrick Fawson said that Margaret discussed the River John investment with him. He said she told him she had lost all her money. He said that around 2004-05 they drove to the area and discovered it was not waterfront property. He said Margaret was upset because it was not as described. [278] James Fawson said they discussed it and she was angry, not at him but at the investment advice she had received from someone else. In any event, when she wanted her money back, he said he could not do that as the company president. He testified he had only become president in 2010. [279] James Fawson also testified that in 2004 the company was fined by the Securities Commission and there were further investigations in 2007. [280] These dates must be viewed in the context of when Margaret Fawson executed her will in April 2004. We do not know when Margaret became concerned about her investment. James Fawson testified that they discussed it after he became president which was in 2010. Patrick could not be sure their visit to the property even occurred in 2004. Nor do we know on what date in 2004 the fine was levied by the Securities Commission. [281] Without further evidence about this, it is not possible to conclude Margaret’s concern about her investment could explain leaving Jim nothing in her will. It does nothing to explain the suspicious circumstances. Nor does it deal with Frank Fawson. [282] The confrontations at Claremont Street on Boxing Day 2010 do not, in my view, assist me in being satisfied that the suspicious circumstances surrounding the execution of Margaret Fawson’s will have been explained. [283] Patrick said that Sandra Deveau, his wife Pauline and he were at the Claremont Street house to get clothing. He said James’ daughter, Angela, arrived followed by James and Frank. He said they were “belligerent,” “pounding on the door.” He said they argued at the door, with him saying that Margaret hated them and they should go away. He alleges Jim pushed his way in and held him by the throat up against the wall. [284] Patrick Fawson made it clear in his testimony that he does not like his brothers and has not for a long time. After the time of the court proceedings for the Adult Protection Order and guardianship of Theresa Fawson, they had little, if any, contact. [285] Sandra Deveau did not know James and Frank and her opinion of them would have been based on Margaret Fawson’s characterization of them. [286] It is hardly surprising that James and Frank would not be welcomed by Patrick and Sandra Deveau. Nor is it surprising that James and Frank would not take kindly to finding a stranger with their brother in Margaret’s house the day after her death. [287] I cannot conclude that the events of that day tell me much about “suspicious circumstances.” The alleged incident involving Patrick and James led to Patrick commencing a private prosecution against James. [288] Margaret told her friends that Frank had struck her. Kathy Mitchell produced a photograph which she testified showed a mark on Margaret Fawson’s cheek. However, no one could pinpoint the date of the photograph. Lynn Jones could only say the photograph was likely taken between 1979 and 1991. That was long before the alleged incident occurred. [289] Kathy Mitchell said it was in the summer time, July or August. Frank Fawson was working on the Claremont Street house in October and November of 2001. [290] Sandra Deveau could only say the photograph was taken sometime in 2001, 2002 or 2003. [291] Dr. Colp’s chart notes make no reference to an eye injury. He testified the red mark could be sunburn or an injury including from being struck. [292] Lynn Jones said she remembered seeing bruising on Margaret Fawson’s face and arm. [293] Sandra Deveau concluded when she found Margaret’s “Patient Lens Implant Identification Card” that the implant resulted from an eye injury caused by Frank Fawson. However, Dr. Colp testified Margaret Fawson had cataract surgery on both eyes in late 2002. She had complained abut vision problems earlier that year and in November 2001. [294] Frank Fawson denied ever striking Margaret. He recalled an incident when he and Margaret argued while he was working on the Claremont Street house. He said Margaret may have exaggerated it to her friends. [295] I conclude Frank and Margaret did argue. I accept Frank’s testimony that it was about RJF coming into the home to provide care for their mother. He said Margaret would not discuss it with him but he had her keys and tried to convince her to stay and talk about it. He said she refused, accused him of assaulting her and left. [296] It is surprising that, if the redness on Margaret’s face in the photograph was from Frank striking her, her closest friends would not have a clearer recollection of the event. I conclude that photograph does not depict a facial injury. No one said, upon seeing the photograph “Oh, I remember that day. That was the day Margaret told us she had been struck by her brother when he was at her house doing work to make it safer for their mother.” [297] I conclude that none of this evidence assists me in dealing with the issue of Margaret Fawson’s testamentary capacity. CONCLUSION [298] I conclude the will of Margaret Fawson is invalid and the grant of probate to Sandra Marie Deveau is revoked. COSTS [299] James Fawson has been successful in his application for Proof in Solemn Form in establishing that the will is invalid. The usual rule is that the successful party is entitled to costs from the estate as are the estate’s costs. If the parties cannot agree, I will accept written submissions on costs. Hood, J.