Johnston Estate v. Johnston

2019 BCSC 2149 Johnston Estate v. Johnston

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Johnston Estate v. Johnston, 2019 BCSC 2149 Date: 20191211 Docket: S143617 Registry: Vancouver Between: The Public Guardian and Trustee of British Columbia, as executor of the last will of Norman Johnston, deceased Plaintiff And David Johnston, Mary Woodward, Thomas Johnston and the Faith Fellowship Baptist Church Defendants And Jack Taylor, Faith Fellowship Baptist Church, The Public Guardian & Trustee of British Columbia, Steven Miller, The Attorney General of British Columbia, Norman Johnston aka Norman Johnston, Deceased Defendants by Counterclaim Corrected Judgment: The text of the judgment was corrected at paragraph 100 on March 3, 2020. Before: The Honourable Mr. Justice G.P. Weatherill Reasons for Judgment Counsel for the Plaintiff and Norman Johnston aka Norman Johnston, Deceased: D.J. Manson Appearing on his own behalf: D. Johnston Counsel for Faith Fellowship Baptist Church and Jack Taylor: N. Safarik No other appearances Place and Date of Trial/Hearing: Vancouver, B.C. November 18-20, 22, 2019 Place and Date of Judgment: Vancouver, B.C. December 11, 2019 Introduction [1] The sole issue in this case is whether the last will and testament of the late Norman Johnston ("Norman") dated September 11, 2012 ("2012 Will"), as modified by a subsequent codicil dated October 24, 2013 ("2013 Codicil"), should be proven in solemn

form. This requires a determination of the following: whether the formalities of making a will were complied with; whether Norman possessed the requisite testamentary capacity to make the 2012 Will and/or 2013 Codicil; whether he knew and approved of their contents; and whether he was subjected to undue influence to the extent that they ought to be declared invalid. Summary of Decision [2] For the reasons that follow, I find that both the 2012 Will and the 2013 Codicil were valid as Norman's last will and testament and they will be proven in solemn form. Background [3] The plaintiff, The Public Guardian and Trustee ("PGT") was appointed committee of the estate of Norman Johnston by a Certificate of Incapability issued under the Patients Property Act, R.S.B.C. 1996, c. 349, on June 10, 2010 ("Certificate of Incapability" or "Certificate"). The PGT is also the executor appointed under the 2012 Will. [4] Norman died on October 28, 2013, at the age of 93. He was married to Barbara, his wife of many years, who died on January 16, 2010, at the age of 82 after a lengthy illness. Norman and Barbara had one child, the defendant David Johnston, age 68 ("David"). David is single, never married and has no children or other dependants. He worked as a taxi driver until he retired in 2000. David lived with his parents all his life at the family home at 3423 East 47th Avenue, Vancouver, BC

("Family Home"), which was registered in Norman and Barbara's names as joint tenants. The Family Home is the principal asset of Norman's estate. [5] The family moved to Vancouver from Calgary in 1964. From 1965 until their deaths, Norman and Barbara were devout members of the defendant Faith Fellowship Baptist Church in Vancouver ("the Church"). Norman was a deacon of the Church and later became a member of its Board of Governors. The Church played a large role in Norman and Barbara's lives. In addition to Church activities, they hosted weekly bible studies at the Family Home, scrabble games and occasional holiday parties. Norman, in particular, was financially generous to the Church. Pastor Jack Taylor ("Pastor Taylor") has been the Church's senior pastor since approximately 2001. He knew Norman and Barbara well. [6] In addition to the Family Home, Barbara and David were joint owners of a family cottage near Princeton that was transferred to David upon Barbara's death. [7] On February 22, 2007, Norman and Barbara prepared mirror-image wills transferring their assets to the survivor of the two of them ("2007 Wills"). Each of these wills provided for the survivor's estate to be transferred to David as their only heir. [8] The 2007 Wills were prepared by Mr. Stephen Miller, an experienced wills and estates lawyer practising in Burnaby, BC. He took his initial instructions from

Norman and Barbara on January 29, 2007. There were discussions at that time about possibly adding David as a joint tenant to the Family Home but Norman and Barbara decided against that idea for fear of losing control. [9] At the same time as the 2007 Wills, Norman and Barbara executed general power of attorneys over their affairs, making David their attorney ("POA") in the event they were unable to manage their affairs. [10] On July 10, 2007, Norman contacted Mr. Miller's office to report that Barbara was in palliative care suffering from multiple life-threatening issues. He stated that Barbara was concerned that David should be a joint owner of the Family Home. Norman told Mr. Miller's office that he would have further discussions with Barbara to determine if that is what she truly wanted. Between that time and Barbara's death on January 18, 2010, there were no further communications with Mr. Miller's office. [11] Nine days after Barbara's death, David began directly contacting Mr. Miller's office seeking to have the Family Home transferred into his name as a joint tenant with Norman. Mr. Miller's office declined David's advances preferring to accept instructions only from Norman. David also contacted Pastor Taylor, including writing him notes, seeking to have him persuade Norman to add David's name to the Family Home's title. Pastor Taylor approached Norman on the subject,

but Norman told him he did not want that to happen. [12] During ensuing meetings and telephone calls between Mr. Miller or his office, and David and Norman, David did most of the talking. Mr. Miller's impression was that Norman was very concerned that David not be a joint owner of the Family Home for fear of losing control. David continued to request Mr. Miller's office prepare documents transferring the Family Home into joint tenancy. [13] On March 8, 2010, at Norman's request, Pastor Taylor met him in his vehicle in the lane behind the Family Home. Norman told him that he was concerned for his safety and wanted Pastor Taylor's help. He also wanted to see his family doctor. Pastor Taylor took him to his family doctor who Norman told about safety concerns he had with David. He stated he did not feel safe in the Family Home. Pastor Taylor was present during this discussion. The doctor recommended that they contact a social worker. In March and early April 2010, a series of meetings were held at the Church involving social workers who were looking into the issue. [14] On April 7, 2010, Norman and his brother John came to Mr. Miller's office. They told Mr. Miller that there were issues between David and Norman. Norman's brother told Mr. Miller that he was concerned that David was browbeating, threatening, and otherwise mentally abusing Norman respecting the Family Home and that

something had to be done to protect him. Norman stated that he did not want David to be a joint tenant in the Family Home. Mr. Miller suggested that a trust be set up for David on Norman's death and that the PGT's office be contacted so that steps to protect Norman could be taken. [15] On April 9, 2010, Norman called Mr. Miller's office requesting matters respecting ownership of the Family Home be put on hold. [16] On April 16, 2010, Norman called Mr. Miller's office, this time stating that he would like David as a joint owner of the Family Home. This was a significant change from Norman's previous stated position. [17] The meetings with the social workers at the Church culminated in a multi-agency meeting on April 20, 2010, at a health center near the Family Home that included police, social workers and others. Including Norman and Pastor Taylor, there were approximately 15 persons in attendance. At the meeting, police and social workers determined that Norman would not be going home. Arrangements were made to admit him into the Short Term Assessment and Treatment ("STAT") unit at Vancouver General Hospital ("VGH") as an unregistered patient in order to keep his whereabouts confidential. [18] On April 21, 2010, Mr. Miller's office contacted the PGT informing them of the POA that had been given to David in 2007. [19] On April 28, 2010, Norman called Mr. Miller's office stating

that he was at VGH and that he wanted to revoke the POA to ensure that David couldn't use it to do anything with the Family Home or his finances. While at VGH, Norman underwent a series of neurological assessments. [20] On June 4, 2010, Pastor Taylor left for Africa on a planned sabbatical. He returned on August 31, 2010. He had no communications with Norman during his absence. [21] On June 9, 2010, Mr. Miller was contacted by the PGT social worker who was involved and was told that the PGT would be stepping in under the Patients Property Act to take over Norman's affairs because it had been determined that he did not have the ability to look after his financial affairs. [22] On June 10, 2010, Dr. Ganesan, the delegated director for the purposes of the Patients Property Act for Psychiatric Units at the VGH issued the Certificate of Incapability to the PGT. This was after a team of social workers, police and doctors at the hospital determined that as a result of the verbal and physical abuse of Norman by David, Norman should not return home. The Certificate stated: I have reviewed the assessment(s) performed on this patient and hereby declare the above-named to be incapable of managing his/her financial and legal affairs, due to mental infirmity arising from disease, age, or otherwise. [23] The PGT was appointed as Norman's committee and it made the decision to place him in a

private hospital where he remained until February 2011. He was then moved to the George Derby Care Facility (a care facility for veterans) where he lived for the rest of his life. The PGT decided to keep Norman's whereabouts secret from David to protect him from David's suspected threatening and browbeating abuse. [24] Notwithstanding the Certificate, David continued to pursue Mr. Miller's office respecting the Family Home. David also retained counsel to assist him. [25] In November 2011, Norman contacted Mr. Miller's office seeking to change his will. He was told that before that could proceed, the PGT's office must agree that he was capable of providing instructions. [26] Meanwhile, Pastor Taylor began regular meetings and prayer sessions with Norman at the George Derby Care Facility. He saw him three to four times in late 2010 and on three to four occasions in 2011. He described Norman as active and engaged. Norman participated in discussions about the war, the Church, paintings, spiritual readings, food and other things. To Pastor Taylor, Norman seemed alert and normal with a very good memory for such things as bible passages. [27] Pastor Taylor did not notice any change in Norman's mental acuity during any of his subsequent and frequent meetings with Norman, all of which were at the George Derby Care Facility. [28] On June 14, 2012, Mr. Miller met Norman at the George

Derby Care Facility and took instructions for the preparation of Norman's new will. Mr. Miller recalls the meeting and describes Norman as being bright, clear and articulate. He recalls that Norman was oriented in time and space, was aware of his assets and aware that the PGT was administering them for him. He knew where he was and how he got there. He stated that he did not want David to know where he was for fear of being pressured regarding the Family Home. Norman stated he wanted David to be taken care of until his death, but he did not want him to have his estate, preferring that it be transferred to the Church on David's death. Mr. Miller's notes and evidence disclose that Norman was discussing and asking about all the appropriate issues including making sure David was looked after. [29] Mr. Miller was satisfied as to Norman's testamentary capacity and took his initial instructions for a new will. [30] On returning to his office, Mr. Miller dictated an email to be sent to the PGT's office about his meeting with Norman. That memo confirms his recollection of Norman's mental acuity. He recalls Norman as being "proactive" and "on his game". The memo stated, in part: I am happy to report that, in my opinion, Mr. Johnston does possess the requisite mental capacity to execute a testamentary document. I was very pleasantly surprised throughout our 1.5 hour meeting. He remembered

everything from our previous meetings, was oriented in time and space, explained his current status (vis a vis the PGT, even reviewing the PGT's statements with me), discussed his continuing concerns for his son, and clearly understood the meaning and effect of a will and that so long as he is competent that he could amend it. [31] Mr. Miller testified that, indeed, he had no doubt about Norman's testamentary capacity. [32] On July 9, 2012, the PGT retained Mr. Miller to prepare a new will for Norman and to file a will's notice. [33] A draft will was prepared by Mr. Miller and forwarded to the PGT for input and review. Changes were recommended by the PGT including a provision giving the PGT, as the trustee of Norman's estate, broad discretion and power to deal with the Family Home as it saw fit. [34] On August 14, 2012, Mr. Miller again met with Norman at the George Derby Care Facility. The draft will was reviewed and given to Norman for his further consideration. Norman wanted to think it over before signing it. [35] On September 11, 2012, Mr. Miller and his legal assistant met with Norman at the George Derby Care Facility and the 2012 Will was reviewed and signed. Mr. Miller ensured that the provisions of the Wills Act, R.S.B.C. 1996, c. 489, were complied with. Mr. Miller recalls this meeting and recalls that Norman was happy and in a good mood. Norman seemed especially

happy that a trust would be set up for David and there would be money left for the Church after David passed. [36] The following day, September 12, 2012, Mr. Miller forwarded the original 2012 Will to the PGT for safe-keeping. A wills notice was filed. The effect of the 2012 Will was to replace the 2007 Will and to appoint the PGT as executor and trustee of Norman's estate and of a discretionary trust whereby the PGT was to apply the assets of the estate for David's benefit during his life and thereafter deliver the remainder of the estate to the Church. [37] Mr. Miller's observations about Norman's mental acuity accord with those of Pastor Taylor, who next met with Norman on September 28, 2012, after his return from another scheduled trip to Africa. He continued to see Norman for regular visits through 2013 and, from his perspective, Norman's cognitive function remained the same. [38] On July 8, 2013, Pastor Taylor received a call that Norman had suffered a stroke. He visited Norman the same day. David was in Norman's room when he arrived. David promptly left. Because Norman's initial prognosis was poor, the care facility decided to inform David of Norman's whereabouts. This prompted David to begin visiting Norman frequently, pestering Norman about the Family Home and causing Norman considerable anxiety. Norman was physically limited and verbally challenged because of his

stroke. Pastor Taylor continued to visit Norman as well as other members of the Church's congregation who also lived at the George Derby Care Facility, approximately three times per week. He noted slow but steady improvement in Norman's cognitive function following his stroke. For example, he noted that Norman recovered his ability to remember his prayers. [39] Pastor Taylor was on holidays and out of the country from early August until August 23, 2013. He did not see Norman again until September 17, 2013, when he went to visit him. On that visit, he noted a huge improvement since he had last seen him in early August. When Pastor Taylor arrived that day, Norman was pacing back and forth in his room. He was upset that David had been continuing to pressure him by stating that people that Norman had benefited in the 2012 Will were not deserving of anything. Norman wanted Pastor Taylor to look at his will, but it was missing from his room because David had taken his copy. [40] On September 28, 2013, Pastor Taylor contacted Mr. Miller to inform him of Norman's stroke and to advise that the care home had informed David of Norman's whereabouts. Pastor Taylor requested that Mr. Miller meet with Norman respecting a change to the 2012 Will. Mr. Miller thought it somewhat strange that a pastor would be calling instead of Norman. [41] In any event, Mr. Miller conferred with the PGT who

agreed to Mr. Miller meeting with Norman to take instructions. Mr. Miller's understanding was that despite Norman's earlier stroke, he had made a full recovery. [42] Mr. Miller met with Norman on October 9, 2013, at the George Derby Care Facility. Norman mentioned that he was getting pressure from David. Pastor Taylor was in attendance and despite Mr. Miller cautioning Norman that they should meet in private, Norman wanted Pastor Taylor to remain in the room. Pastor Taylor moved to the far end of the room to allow Norman and Mr. Miller to discuss matters privately. By this point, Pastor Taylor knew that Norman wanted to leave money to the Church and he understood that it would be inappropriate for him to be involved in their discussions. Other than answering questions concerning the Church's needs, Pastor Taylor took no part in the discussions about the 2013 Codicil. He heard Mr. Miller ask Norman if he knew the value of his estate. Norman replied that it was about $1 million. [43] Although Norman was somewhat frailer than he was the year before, Mr. Miller satisfied himself as to Norman's testamentary capacity. His eyes were clear and focussed, he carefully considered questions and answers and led the discussion. Mr. Miller's evidence and his contemporaneous notes make it clear that Norman had testamentary capacity. Norman wanted to know with more precision the value of his

estate. He authorized Mr. Miller to obtain an up-to-date net worth statement from the PGT for review when they next met. [44] Mr. Miller met with Norman again on October 18, 2013. Pastor Taylor was in attendance, praying with Norman when he arrived. Once again Mr. Miller satisfied himself that Norman was mentally competent to prepare testamentary papers. They had lengthy discussions about David and the Church and what Norman thought would be fair to both. By then, Mr. Miller had obtained Norman's updated net-worth statement showing cash of just over $100,000 and the house then valued at just over $1 million. His total estate was valued then at $1,136,626.84. He knew David still owned the family cottage in Princeton that Norman thought was worth about $400,000. Although Pastor Taylor stayed for a portion of the meeting, he left the room to go to the washroom and was gone about 15 minutes or so. When he returned, Norman and Mr. Miller were just finishing up. Mr. Miller obtained instructions for the 2013 Codicil to be prepared, increasing the testamentary gift to the Church from $5,000 in the 2012 Will to $100,000, leaving $1 million in trust for David. Norman knew the Church had immediate financial needs. He stated that he had been a board member of the Church for some 40 years and wanted to benefit the Church sooner rather than later. He did not want the Church to have to wait

an unknown number of years for David to pass. [45] On October 24, 2013, Mr. Miller and his legal assistant attended at the George Derby Care Facility for Norman to sign the 2013 Codicil. Although frailer and bed-ridden, Norman was able to sit up in bed. Again Pastor Taylor was in attendance. Again Mr. Miller suggested that he be excused but Norman wanted him to stay. Norman told him that he was comforted by his pastor being there. The 2012 Will was re-read to Norman as was the 2013 Codicil. Mr. Miller was confident that Norman understood what was happening and was mentally competent. He seemed happy with the disposition of his estate, that David would be looked after during his lifetime and that the Church would be looked after on David's passing. Both Mr. Miller and Pastor Taylor testified that Norman asked appropriate questions. Indeed, Mr. Miller recalls that Norman seemed clearer on this occasion than on previous meetings. The 2013 Codicil was signed and witnessed in accordance with the Wills Act. Pastor Taylor became aware of the details and amount of Norman's gift to the Church at this meeting. [46] In the afternoon of October 24, 2013, David visited Norman and they discussed the 2012 Will and the 2013 Codicil. David's evidence was that Norman was able to read the 2012 Will and 2013 Codicil and talk to David about it. He tried to explain to David what he had done

respecting his estate, but David did not like it. [47] Norman passed away four days later. [48] David promptly retained counsel who filed a caveat on the Family Home's title alleging that the 2012 Will and the 2013 Codicil were invalid. Court History [49] The notice of civil claim was filed on May 21, 2014. David was served and he retained counsel, Mr. Jonas Dubas, who filed a response and counterclaim on David's behalf. The counterclaim sought relief against Mr. Miller, Pastor Taylor, the Church and the Attorney General of British Columbia. [50] Responses to the counterclaim were filed in due course. [51] An amended response to civil claim was filed by Mr. Dubas on April 21, 2015 ("David's Response"). [52] The PGT applied to have David's Response struck due to various alleged failings. The application was heard by Justice Ballance on June 22, 2015 and September 8, 2015. She issued her reasons on July 26, 2016, ordering David to amend his response and counterclaim by August 16, 2016, striking portions of the counterclaim against Mr. Miller and ordering the PGT's action to prove the 2012 Will and 2013 Codicil in solemn form be severed and tried separately from the counterclaim ("Proof of Will Action"). [53] She ordered that the issues to be tried in the Proof of Will Action be limited to: a) Whether Norman had the requisite testamentary capacity to validly make the 2012 Will and

2013 Codicil, which was to encompass the issues of whether any surrounding suspicious circumstances existed and whether he knew and approved the contents of the 2012 Will and/or the 2013 Codicil; b) Whether Norman's instructions and execution of the 2012 Will and/or 2013 Codicil were free from delusions and undue influence; c) Whether the 2012 Will and/or 2013 Codicil were validly executed in accordance with the formal requirements of the Wills Act; and d) The validity of the 2007 Will. [54] She also ordered that the counterclaim and all other claims be stayed pending the determination of the Proof of Will Action. [55] Justice Ballance issued supplemental reasons on January 10, 2017, settling her order. [56] The Proof of Will Action was initially set for trial on May 20, 2017, for five days. It was adjourned first to January 22, 2018, for five days, then adjourned to December 3, 2018, for ten days, and finally adjourned again to November 18, 2019, for ten days. [57] At the outset of the trial on November 18, 2019, David, who was by then self-represented, sought to adjourn the Proof of Will Action again for up to one year. I dismissed his application and the trial proceeded. Issues [58] Pursuant to Ballance J.'s order, there are four issues before me. They are: a) Whether Norman had the requisite testamentary capacity to validly make the 2012 Will and/or 2013 Codicil, which

encompasses the issues of whether any surrounding suspicious circumstances existed and whether he knew and approved the contents of the 2012 Will and/or the 2013 Codicil; b) Whether Norman's instructions and execution of the 2012 Will and/or 2013 Codicil were free from delusions and undue influence; c) Whether the 2012 Will and/or 2013 Codicil were validly executed in accordance with the formal requirements of the Wills Act; and d) The validity of the 2007 Will. Testamentary Capacity and Burden of Proof [59] David's position is that the 2012 Will and 2013 Codicil are both invalid because Norman did not have the testamentary capacity to make them and because Pastor Taylor improperly influenced Norman's thinking. He asserts that the 2013 Codicil was signed under suspicious circumstances. He says that the will that should be proven is the 2007 Will. [60] In Leung v. Chang, 2013 BCSC 976, Justice Dardi set out a concise framework of the burden of proof in litigation regarding contested wills: [26] In an action for proof of will in solemn form, the party propounding the will must prove on a balance of probabilities that the will was executed in compliance with the statutory formalities, that the will-maker knew and approved of the contents of the will and that the will-maker had testamentary capacity: Vout v. Hay, [1995] 2 S.C.R. 876 [Vout] at paras. 19-20. [27] In order to make a

valid will, the will-maker must have a "baseline level of mental acuity" or a "disposing mind and memory", sufficient to appreciate and comprehend the nature and effect of the essential elements of the testamentary act. This encompasses an appreciation of the claims of the persons who are the natural objects of her estate and the extent of her property of which she is disposing: Laszlo v. Lawton, 2013 BCSC 305, at para. 185; Banks v. Goodfellow (1870), L.R. 5 Q.B. 549; Leger v. Poirier, [1944] S.C.R. 152 at 161. The assessment of whether a will-maker possesses testamentary capacity is a highly individualized inquiry and is a question of fact to be determined in all the circumstances: James v. Field, 2001 BCCA 267 at para. 51; Laszlo at para. 197. [28] In certain circumstances, the propounder of the will, in discharging the burden of proof, is aided by a rebuttable presumption of validity. If the will was duly executed in accordance with the requisite statutory formalities after being read over to or by a testator who appeared to understand it, it is presumed the testator possessed the requisite testamentary capacity and knew and approved of its contents: Vout at para. 26. [29] This presumption may be rebutted by evidence of "well-grounded suspicions", referred to in jurisprudence as "suspicious circumstances", relating to one or more of the following circumstances: (1)

surrounding the preparation of the will; (2) tending to call into question the capacity of the will-maker; or (3) tending to show that the free will of the will-maker was overborne by acts of coercion or fraud: Vout at para 25. [30] If suspicious circumstances are established, then the presumption is spent and the legal burden of proof reverts to the profounder of the will. The profounder of the will then reassumes the legal burden of proving knowledge and approval, as well as proving testamentary capacity, if the suspicious circumstances reflect on the mental capacity of the will-maker to make a will: Woodward v. Grant, 2007 BCSC 1192 at para.

108. In order to discharge the burden, the propounder of the will is required to dispel the suspicious circumstances that have been raised: Ostrander v. Black (1996), 12 E.T.R. (2d) 219 at para. 30 (Gen. Div.). [31] In Vout, the Court affirmed that if a court determines that suspicious circumstances exist, the applicable standard of proof is a balance of probabilities. However, the evidence must be scrutinized in accordance with the gravity of the suspicion raised in any particular case. [32] In order to rebut the presumption of validity, those attacking the will must meet the threshold of demonstrating that there is some evidence "which, if accepted, would tend to negative knowledge and approval or testamentary capacity": Vout at para. 27; Maddess v. Racz, 2009 BCCA 539 at para.

31. The court in Scott v. Cousins (2001), 37 E.T.R. (2d) 113 (Ont. S.C.J.) describes the requisite evidence as that which "excites the suspicion of the court". A "general miasma of suspicion that something unsavoury may have occurred" is insufficient to rebut the presumption of validity; the evidence must raise a "specific and focused suspicion": Clark v. Nash (1989), 61 D.L.R. (4th) 409 at 425 (B.C.C.A.). [33] The court in Laszlo provides the following instructive observations regarding the doctrine of suspicious circumstances at para. 207: Suspicious circumstances have been found to exist in a wide array of situations and are not necessarily sinister in nature. There is no checklist of circumstantial factors that will invariably fit the classification. Commonly occurring themes include where a beneficiary is instrumental in the preparation of the will (especially where the beneficiary stands in a fiduciary position to the testator), or where the will favours "someone who has not previously been the object of [the testator's] bounty and does not fall within the class of persons testators usually remember in their wills, that is to say their next of kin." Hearsay Documents [61] At the outset of the trial, Mr. Manson proposed that evidence concerning Norman's statements or statements about what Norman said ought to be admitted as an exception to the hearsay rule. He proposed

that I hear the evidence and determine at the conclusion of the trial, whether the evidence was admissible or not. [62] David had trouble understanding the concept and took no position. I concluded that Mr. Manson's proposal made sense in the circumstances and evidence concerning Norman's state of mind was admissible for that purpose. This same approach was adopted by Justice Myers in Volovsek v. Donaldson, 2019 BCSC 1820. At paras 104-105, he stated: [104] Statements adduced to show state of mind or intention are admissible as an exception to the hearsay rule where the statement is made in in a natural manner and not under circumstances of suspicion: R. v. Starr, 2000 SCC 40 at para. 168. [105] In India v. Badesha, 2013 BCSC 1872, Fitch J. (as he then was), referred to the distinction between explicit declarations of state of mind and statements that permit an inference as to the declarant's state of mind: [43] Canada distinguishes explicit declarations of state of mind which fall under the traditional exception to the hearsay rule from statements that permit an inference as to the declarant's state of mind. Canada argues that statements permitting an inference as to the declarant's state of mind are not hearsay. Rather, such statements are original testimonial evidence that may be admitted as circumstantial evidence from which the existence of a state of mind can be inferred.

In support of its submission on this point, Canada relies on the following observations of Doherty J. (as he then was) in P. (R.), at 341: Assuming relevance, evidence of utterances made by a deceased... which evidence her state of mind are admissible. If these statements are explicit statements of a state of mind, they are admitted as exceptions to the hearsay rule. If those statements permit an inference as to the speaker's state of mind, they are regarded as original testimonial evidence and admitted as circumstantial evidence from which a state of mind can be inferred. The result is the same, whichever route is taken, although circumstantial evidence of a state of mind poses added problems [a]rising out of the inference drawing process...[citations omitted in India v. Badesha] [44] In Candir, at para. 56, Watt J.A. similarly concluded that statements giving rise to an inference about a declarant's state of mind are not hearsay and may be admitted as circumstantial evidence from which the declarant's state of mind may be inferred. [45] In R. v. Panghali, 2010 BCSC 1114 (B.C.S.C.) at para. 19, Holmes J. expressed doubt about whether Justice Doherty intended to draw a distinction in P. (R.) between hearsay and non-hearsay statements according to whether they are explicit statements of the declarant's state of mind, or statements giving rise to an inference respecting the

declarant's state of mind. In her view, while a distinction was drawn in P. (R.) between direct and circumstantial evidence of state of mind, both constitute hearsay and must be admitted under an exception to the hearsay rule. No reference was made in Panghali to Candir. [46] Because of the positions counsel have taken with respect to this category of statements - that all of them fall under the state of mind exception to the hearsay rule - it is unnecessary for me to resolve this neat evidentiary point. Although I am inclined to the view that Candir correctly states the law on this point, I have proceeded on the footing most favourable to the persons sought - that both explicit declarations of state of mind and those which permit an inference as to the existence of a particular state of mind must qualify for admission as an exception to the hearsay rule or under the principled approach. [63] I adopt this approach and conclude that Norman's statements to Mr. Miller and Pastor Taylor at the relevant meetings are admissible as an exception to the hearsay rule as proof of his state of mind about David, his safety concerns, the Church and his concerns about making David a joint tenant in the Family Home. Dr. Sheldon's Medical/Legal Report [64] David sought to introduce into evidence a report dated May 15, 2018, authored by Dr. L.J. Sheldon, a geriatric psychiatrist. Dr. Sheldon's

report was commissioned by David's previous counsel. The report is lengthy but in short, Dr. Sheldon's opinion is that Norman's executive functioning was in a state of decline from mild in 2010 to moderate in 2012 to severe in 2013. He concluded that Norman did not have testamentary capacity without defining what that term meant. [65] At the conclusion of a voir dire to determine its admissibility, I ruled that Dr. Sheldon's report was not admissible and that I would be giving reasons for that decision. Those reasons follow. [66] The question to be determined in this case is whether Norman had the testamentary capacity to sign the 2012 Will and/or the 2013 Codicil at the relevant time. That determination, of course, is to be made by the Court, after a full consideration of the evidence and applying it to the law. Whether or not someone has testamentary capacity is a legal question, not a medical question. Although medical opinions can be valuable and relevant, they are not determinative of testamentary capacity: Leung at para. 62; Laszlo v. Lawton, 2013 BCSC 305 at para. 198. [67] Dr. Sheldon's report offends various Rules relating to admissibility of expert reports, some technical and some substantive, including: a) Rule 11-6(1)(c): the instructions that Dr. Sheldon received from Mr. Dubas were referred to but not provided. Rule 11-7(1) states that in such a circumstance, the

report cannot be admitted; b) Rule 11-6(1)(f): Dr. Sheldon does not set out a description of the facts and assumptions upon which his opinion is based. It is clear that he reviewed a series of medical records, opinions, assessments and other documents that were provided to him, and relied on their accuracy in formulating his opinion. He did not state which documents he relied on in coming to his conclusions. In short, he relied on unproven and untested opinions of others as the basis for and to arrive at his opinion, in particular a neuropsychological consultation assessment report dated May 4, 2010 prepared by R. Bhaila; c) Several passages of his report stray into advocacy and argument. For example, he suggests that if Norman had testamentary capacity, he would not have changed his mind on how he wanted to distribute his estate. Such conclusions are improper for an expert; d) He comments on Pastor Taylor's presence in Norman's room on October 24, 2013, when Mr. Miller and his legal assistant witnessed his signature on the 2013 Codicil as being "irregular" and setting up an unbalanced influence on Norman in favor of the Church, essentially making a "suspicious circumstance" argument in the guise of an opinion; e) Immediately after Dr. Sheldon's report was served by David's former counsel and again on October 30, 2018, after David became self-represented, Mr. Manson requested

that Dr. Sheldon be produced at trial for cross-examination. David took no steps to secure Dr. Sheldon's attendance. He did not inform Dr. Sheldon of the trial date nor did he attempt to contact him until the second day of trial. Not surprisingly, Dr. Sheldon could not be located. f) The report's tone suggests a cloud of bias in David's favor. Without the benefit and scrutiny of cross-examination, it is impossible to lift that cloud. [68] The test for admissibility of expert reports was set out by the Supreme Court of Canada in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23. There is a threshold to meet - that of necessity and reliability. Of the two, the most important is that the proffered expert opinion must meet the threshold of necessity. At paras. 18 and 23-24, Justice Cromwell put it this way: [18] The point is to preserve trial by judge and jury, not devolve to trial by expert. There is a risk that the jury "will be unable to make an effective and critical assessment of the evidence. The trier of fact must be able to use its "informed judgment", not simply decide on the basis of an "act of faith" in the expert's opinion. The risk of "attornment to the opinion of the expertˮ is also exacerbated by the fact that expert evidence is resistant to effective cross-examination by counsel who are not experts in that field. The cases address a number of

other related concerns: the potential prejudice created by the expert's reliance on unproven material not subject to cross-examination; the risk of admitting "junk science"; and the risk that a "contest of experts" distracts rather than assists the trier of fact. Another well-known danger associated with the admissibility of expert evidence is that it may lead to an inordinate expenditure of time and money. . . . [23] At the first step, the proponent of the evidence must establish the threshold requirements of admissibility. These are the four Mohan factors (relevance, necessity, absence of an exclusionary rule and a properly qualified expert) and in addition, in the case of an opinion based on novel or contested science or science used for a novel purpose, the reliability of the underlying science for that purpose. Relevance at this threshold stage refers to logical relevance. Evidence that does not meet these threshold requirements should be excluded. Note that I would retain necessity as a threshold requirement. [24] At the second discretionary gatekeeping step, the judge balances the potential risks and benefits of admitting the evidence in order to decide whether the potential benefits justify the risks. The required balancing exercise has been described in various ways. In Mohan, Sopinka J. spoke of the "reliability versus effect factor" (p. 21), while in J.-L.J., Binnie J. spoke about "relevance, reliability and necessity" being "measured against the counterweights of consumption of time, prejudice and confusion": para.

47. Doherty J.A. summed it up well in Abbey, stating that the "trial judge must decide whether expert evidence that meets the preconditions to admissibility is sufficiently beneficial to the trial process to warrant its admission despite the potential harm to the trial process that may flow from the admission of the expert evidence": para. 76. [citations omitted] [69] The burden of meeting the admissibility test is on the proffering party, in this case, David. [70] I am satisfied that the field of geriatric psychiatry is within the scope of Dr. Sheldon's field of expertise. [71] After reviewing Dr. Sheldon's report, I concluded that it was not admissible because it did not meet the threshold test of reliability. It is of questionable assistance to the Court. It is based almost entirely on an analysis of hearsay statements contained in various clinical records and other documents, contains anecdotes and personal opinions based on other cases, and interprets and accepts facts selectively (for example, clinical records that support his conclusions he adopts and clinical records that do not support his conclusions he rejects or attempts to explain away). Dr. Sheldon also makes findings of credibility in his report and is conclusory on Norman's testamentary capacity. [72] Dr. Sheldon's conclusions are not based on the legal test for testamentary capacity. To repeat, what is required

for testamentary capacity is a "baseline level of mental acuity" or a "disposing mind and memory", sufficient to appreciate and comprehend the nature and effect of the essential elements of the testamentary act: Lazlo at paras. 185 and 194. This encompasses an appreciation of the claims of the persons who are the natural objects of an estate and the extent of the property that is being disposed of. [73] The nature and scope of Dr. Sheldon's report is, I conclude, more of an aide memoire to assist David's case than an independent objective expert opinion. I am not satisfied that his opinion can be admitted into evidence because of the reliability concerns discussed above. Considering this, as well as possible bias, on balance, I am not persuaded that the probative value of Dr. Sheldon's opinions outweighs its prejudicial effect. Discussion [74] Summarizing my comments in Bull Estate v. Bull, 2015 BCSC 136 at paras. 114-117 and 122, the test for testamentary capacity is not an overly onerous one. Sufficient mental capacity may exist despite the presence of cognitive deterioration, and the testator may have sufficient mental capacity even if his or her ability to manage other aspects of his or her affairs is impaired or compromised. Having a less than perfect memory is not sufficient to take away testamentary capacity unless it is so great as to leave no disposing mind: Banks v. Goodfellow (1870), L.R. 5 Q.B.

549. A disposing mind and memory is "one able to comprehend, of its own initiative and volition, the essential elements of will making, property, objects, just claims to consideration revoking dispositions and the like . . . ": Leger v. Poirier, [1944] SCR 152 at 161; Moore v. Drummond, 2012 BCSC 1702 at para. 34. [75] The testator should have an appreciation of the claims of the persons who are natural objects of his or her estate and the extent of his or her property of which he or she is disposing: Allart Estate v. Allart, 2014 BCSC 2211 at para. 30; Leung at para. 27; and Laszlo at para.

158. A testator cannot be found not to have testamentary capacity simply because he chooses to leave his estate in a manner that some might think unkind: Chalmers v. Uzelac, 2004 BCCA 533 at para. 49. [76] Even if David was successfully able to invoke the doctrine of suspicious circumstances, it does no more than require the PGT to prove Norman knew and approved of the contents of the 2012 Will and 2013 Codicil and had testamentary capacity. Testamentary capacity does not stand or fall on the presence or absence of suspicious circumstances: Chalmers at para. 41. [77] With these concepts in mind, I will now address the issues in this case. [78] In doing so and at the outset, I accept without reservation the evidence given by Mr. Miller and Pastor Taylor. They both testified in a clear, forthright, balanced, unbiased, calm and believable manner. I accept their evidence about their observations and conclusions about Norman's testamentary capacity. [79] The same cannot be said for David, whose evidence was rambling and difficult to follow. At times, he was incoherent. He was prone to making groundless allegations against the PGT, Pastor Taylor and Mr. Miller. I suspect that David may not be able to fully comprehend or appreciate the issues before the Court. [80] From what little I did discern from David's evidence, Norman was doing relatively fine cognitively up to April 15, 2010,

when he was taken away from the Family Home and placed at the VGH. David did not see Norman again until July 1, 2013, when he was summoned to the George Derby Care Facility because of Norman's stroke. David admitted at his examination for discovery that he had argued with Norman over the title to the Family Home at one point grabbing Norman's leg and hurting him. It was shortly after that incident that Norman left the Family Home never to return. [81] He confirmed that Norman loved the Church, was connected to it and that it was a major and important part of his life since moving to Vancouver in 1965. He stated that Norman was a powerful figure there. He also stated that Norman was very generous, indeed too generous in his view, to the Church, giving it money over and above the common practise of a 10% tithe. [82] More importantly, David seemed to confirm that Norman's condition improved after his July 1, 2013 stroke. He testified that he was able to engage with him up to and including October 24, 2013, when he signed the 2013 Codicil. In fact, he thought it was "odd" that he had recovered so well. David testified that he was with Norman on October 24, 2013, after he signed the 2013 Codicil and the two of them talked about both the 2012 Will and the 2013 Codicil. David testified that Norman was very concerned to ensure that his estate would go to the Fellowship of Evangelical

Baptist Churches of Canada (the Church's parent body) if the Church were to break away and join another church. This, David stated, was something that had been discussed by the Church's Board of Governors in 2005, that Norman did not agree with and that he blocked. David confirmed that, during his discussions with Norman on October 24, 2013, Norman was lucid, communicative and concerned. This evidence supports Mr. Miller and Pastor Taylor's evidence concerning Noman's testamentary capacity on October 24, 2013. Issue No. 1: Did Norman have the requisite testamentary capacity to validly make the 2012 Will and/or 2013 Codicil? [83] Yes. [84] Norman had two objectives in preparing the 2012 Will and the 2013 Codicil: (a) to ensure that David was looked after; and (b) after David's death, to ensure the Church was looked after. [85] I conclude that Norman had testamentary capacity to give instructions for, and to make and sign the 2012 Will and the 2013 Codicil. I accept without reservation Mr. Miller's evidence regarding Norman's mental acuity at the time he provided instructions to Mr. Miller for them both and at the time he signed them. [86] David's suggestion that Norman was manipulated by the Church to give it $100,000 on his death and to benefit it with the balance of his estate on David's passing, is without merit. While David clearly has his suspicions about the Church's

motives, they are no more than personal suspicions that have not been proven. I conclude that there were no suspicious circumstances when the 2012 Will and the 2013 Codicil were signed. Norman knew and approved of their contents. [87] I also conclude that Norman had the required "baseline level of mental acuity" or a "disposing mind and memory", sufficient to appreciate and comprehend the nature and effect of the essential elements of instruction for the preparation and signing of the 2012 Will and the 2013 Codicil. He was free from delusions. The documents were validly executed in accordance with the formal requirements of the Wills Act. [88] The only evidence that might suggest otherwise is the Certificate of Incapability. However, the evidence is clear that it was in the nature of a custodianship and obtained to protect Norman from David's interference and influence and to protect Norman's assets from David. [89] Further, the PGT's office was fully informed about and participated in Norman's decision to instruct Mr. Miller respecting the 2012 Will and the 2013 Codicil. [90] Respecting Pastor Taylor's role, I conclude that he was not involved in the preparation of the 2012 Will and that his only involvement in the 2013 Codicil was to reach out to Mr. Miller on Norman's behalf in order to initiate the process. Although he was present during the meetings with Norman and Mr.

Miller, he was in the background only. [91] In sum, I am satisfied on a balance of probabilities that Norman had the testamentary capacity to prepare and sign both the 2012 Will and 2013 Codicil and that they have been proven. Issue No. 2: Were Norman's instructions and execution of the 2012 Will and/or 2013 Codicil free from delusions and undue influence? [92] Yes. [93] Other than David's suspicions, there is no evidence that Norman was unduly influenced respecting the preparation of either the 2012 Will or the 2013 Codicil, or that he was suffering any delusions. Issue No. 3: Were the 2012 Will and/or 2013 Codicil validly executed in accordance with the formal requirements of the Wills Act? [94] Yes. [95] I accept Mr. Miller's evidence that the formal requirements of the Wills Act were complied with. Indeed, there is no evidence to the contrary. Issue No. 4: Has the 2007 Will been proven as Norman's last will? [96] No. [97] Given that the 2012 Will as modified by the 2013 Codicil has been proven, they have replaced the 2007 Will as Norman's last will and testament. Decision [98] There shall be a declaration that the 2012 Will as modified by the 2013 Codicil is proven as Norman's last will and testament. [99] There will be an order, if required, that a caveat filed October 29, 2013, be discharged from the Family Home. Costs [100] The PGT is entitled to special costs of this

action payable from Norman's estate: Bull Estate at para. 138. [101] Referring to my reasons in Bull Estate, the PGT also seeks costs on Scale C from David, to be paid into Norman's estate as a partial indemnity toward legal expenses. This whole proceeding, the PGT argues, was made necessary because of David's stubborn refusal to accept the inevitable and Norman's estate should have the benefit of collecting from David the significant legal costs that were incurred in proving the will, which included various chambers applications in Supreme Court and two trips to the Court of Appeal. [102] I decline to award costs against David. There is no doubt that this litigation was unfortunate and costly, both in time and money. It was made necessary by David's inability to accept that Norman wanted to set up his estate to ensure David was looked after for his lifetime, and that on David's passing, the Church would benefit. From observing David during the trial, I conclude that his inability to accept Norman's decision respecting his estate (including his decision not to transfer the Family Home into joint names with David) was due to David's reduced mental capacity and not by deliberate or insincere motives. [103] I conclude that David's stubborn refusal to accept the inevitable was driven more by his feeling of entitlement to the Family Home because he lived with his parents all his

life, he is their only heir, and he feels he looked after them. The Family Home is where he has lived for the past 55 years. [104] Unlike the defendant in Bull Estate, this is not a case where David was motivated by bitterness and jealousy. In David's mind, albeit misguided by his thought processes, he legitimately believed he had a basis to dispute the validity of the 2012 Will and the 2013 Codicil. "G.P. Weatherill J."