Is the fact that one is a chronic alcoholic enough to deprive them of their testamentary freedom? In Dujardin v. Dujardin, 2018 ONCA 597, the Court of Appeal for Ontario explored this issue when it was tasked with determining the validity of two wills that were executed by a known drunkard.
Background
Jacques Henry Dujardin (the ”Deceased”) died on December 26, 2011.
The Deceased’s family immigrated to Canada from Belgium in 1958 and farmed tobacco on different properties until they could afford a farm of their own. In 1967, the Deceased’s parents bought the farm that would later become the subject matter of this appeal.
At the time of his death, The Deceased and his brother Noel Dujardin (“Noel”) jointly owned the family farm. The Deceased and Noel lived on the farm together and ran the farming business as partners. Though a productive worker during the day, the Deceased was known to have a “difficult” relationship with alcohol and would nightly drink himself to sleep. Noel testified at trial that the Deceased would purchase 40 ounces of liquor a day.
In 2009, the Deceased and Noel executed mirror wills, both personal and corporate (the “Wills”). In the Wills, the Deceased and Noel left their entire estates to each other. Despite the Deceased’s alcohol use, it was established at trial that the Deceased at this time could function properly at work and in his business dealings. Witnesses from the local farming community further testified that, even though they were aware of the Deceased’s drinking, they noticed nothing wrong with his cognitive functioning.
When the Deceased died, he was married to Loretta June Dujardin (“Loretta”). The Deceased, however, did not provide for Loretta in the Wills. The Deceased did, however, designate Loretta as the sole beneficiary in a Registered Retirement Income Fund (“RRIF”), which was worth approximately $123,000.00 at the time of his death.
In 2007, and at the age of 65, the Deceased suffered a heart attack and was hospitalised for two weeks. In a discharge summary, an attending doctor noted that:
The main problem was with cognitive dysfunction and confusion disorientation thought to be due to organic brain syndrome secondary to alcohol abuse. Over the next week or two his sensorium cleared somewhat.
This hospital visit did not seem to faze the Deceased as he soon reconciled with his drinking. The Deceased had another heart attack in 2010, and in the end succumbed to a stroke.
Trial
Having discovered that she had been left out of the Wills, Loretta quickly moved to challenge the Wills’ validity.
In 2012, Loretta filed a Notice of Objection to the Issuance of a Certificate of Appointment of Estate Trustee, arguing that the Deceased lacked testamentary capacity and that the Wills were not properly executed.
At the start of trial, Loretta indicated that she would call an expert witness (“Dr. Judson”) to testify that the Deceased lacked testamentary capacity due to the aforementioned organic brain syndrome. Counsel for Noel, however, opposed the admission and warned that should Dr. Judson’s evidence be admitted then Noel would be adducing an expert of his own.
Ultimately, the trial judge refused to admit Dr. Judson’s evidence and, based on the entirety of the evidence, found that the Wills were properly executed, that the Deceased knew and approved of their contents, and that the Deceased had testamentary capacity at the time they were executed.
Loretta proceeded to appeal.
Analysis
(1) The admissibility of Dr. Judson’s evidence
While Dr. Judson does specialise in substance abuse treatment and addiction medicine, he never met with the Deceased before writing his opinion. Moreover, Dr. Judson’s opinion wavered under scrutiny from other doctors to the point where it was reduced from a categorical assertion of incapacity to providing only the mere possibility that the Deceased was suffering from a cognitive impairment.
In concluding that Dr. Judson’s opinion would ultimately be of no assistance on the matter of testamentary capacity, the trial judge, and in accordance with principles developed by the Supreme Court of Canada in R. v. Mohan, [1994] 2 SCR 9, and White Burgess Langille Inman v. Abbott and Haliburton Co., [2015] 2 SCR 182, exercised her discretion as gatekeeper of the evidence and found Dr. Judson’s evidence to be inadmissible. In arriving at this conclusion, the trial judge commented that:
[Dr. Judson’s] watered-down opinion provides such little, if any, assistance to the court that the time consumed with his testimony and the testimony of responding experts outweighs any possible benefit to the court.
The Court of Appeal found no error in concluding that Dr. Judson’s evidence was inadmissible on this cost/benefit analysis. The trial judge, the Court of Appeal concluded, was best placed to assess the potential value of Dr. Judson’s evidence and that assessment was entitled to deference, especially as it turned on the trial judge’s role as gatekeeper.
(2) Validity of the Wills
It is well established that the propounder of a will has the onus of proving that a will was indeed properly executed in accordance with the Succession Law Reform Act, R.S.O. 1990, c. S.26 (”SLRA”). The propounder must also prove that the testator knew and approved of the contents of their will, and that the testator had testamentary capacity. When certain preconditions are met (i.e. there’s proof that the will was duly executed and that it was read over to or by a testator who appeared to understand it), the propounder will benefit from a presumption of knowledge, approval, and testamentary capacity. That presumption, however, is spent when there are suspicious circumstances surrounding the preparation of the will, calling into question the testator’s capacity, or tending to show that the testator’s free will was compromised.
The Court of Appeal held in this case, as had the trial judge before it, that there was ample evidence on the record to safely conclude that the Wills complied with the formal requirements of the SLRA. With regard to knowledge and approval, and despite the fact that there were indeed suspicious circumstances with regard to the Deceased’s capacity, the trial judge found that the Deceased was aware of and understood that he and Noel were leaving their respective shares in the farm to each other. Moreover, and understanding that Loretta would not benefit under the Wills, the Deceased knew to take steps to provide for Loretta outside of the Wills by setting up the RRIF. Finally, and with regard to testamentary capacity, the trial judge concluded that, while the Deceased had issues with alcohol, he was of sound mind when he executed the Wills. Absent any palpable and overriding errors, of which there were none, the Court of Appeal held that the trial judge’s findings on these issues could not be disturbed.
Given the above, Loretta’s appeal in its entirety was ultimately dismissed.
Before leaving this matter, however, the Court of Appeal did repeat the observation made by the trial judge that while Loretta will take nothing under the Wills, she may have entitlements under ss. 5(2) and 6(10) of the Family Law Act, R.S.O. 1990, c. F.3.
Conclusion
It seems that chronic alcoholism, in and of itself, is not enough to take away one’s testamentary freedom.
Cheers.
[1] For an additional analysis of this case, please read Rebecca Studin’s blog post at allaboutestates.ca here.
