By Genevieve Madill
Introduction
Undue Influence is an insidious predator. It preys on the vulnerable and distorts the testator’s true intention.
Proving undue influence is nearly impossible. It is most often exercised in secret, by someone in a position of power over the testator who, by reason of physical or cognitive limitation, is more susceptible to that influence.
In the estates context, a will can be set aside on the basis of undue influence where the objector proves on a balance of probabilities that the testator’s intentions were compromised by coercion and/or manipulation.
In the recent decision of Abbruzzese v Tucci, the Applicant, successfully proved that her mother had been unduly influenced by the Applicant’s younger sister into signing a new will disinheriting her. The Court found that the Respondent isolated the parties’ mother from the rest of her family, and through “coercion, persuasion and indoctrination, over time” convinced her mother that the Applicant was undeserving and absent.
Background
The testatrix, Maria, was a first-generation Italian immigrant who never learned to read or write English. She did not speak English fluently and had only three years of formal education. She was a “homebody” who preferred to visit with friends and family in the comfort of her own home.
In 2007, two years after her husband’s death, Maria signed a will dividing her estate equally between her two daughters, the Applicant and the Respondent. At the same time, she signed Powers of Attorney naming her daughters jointly as her Power of Attorneys (POAs) for both property and personal care.
In 2012, Maria was diagnosed with polymyalgia rheumatica (PMR). Her mobility declined rapidly: she could not cook, do laundry, shower or go down the stairs without assistance.
In 2014, Maria began having memory problems and underwent a geriatric assessment with a social worker. The assessment determined her cognition was declining and recommended referral to a specialist.
It was in this same year, 2014, that both the Applicant and Respondent had a serious disagreement about caring for their mother. The Respondent still lived with the mother in their family home in Toronto (the “Toronto Home”), while the Applicant lived with her own family several miles away and was employed full time. After the argument, the Respondent began isolating Maria from the Applicant and her family.
In 2015, Maria suffered a serious fall and underwent hip replacement surgery. The Applicant only learned of her mother’s fall after the surgery, when she was notified by the Respondent’s son.
When Maria was discharged from the hospital in early October, her primary diagnosis was dementia. In a subsequent home visit, the registered nurse performing the visit noted that Maria could not be left alone and needed “limited to extensive assistance” from the Respondent.
In March 2016, the Respondent arranged for two bank employees to attend at the home so that Maria could execute a Continuing Power of Attorney for her bank accounts in favour of the Respondent. In the three months following the signing of the bank POA, the Respondent withdrew the majority of the funds in her mother’s savings account.
Later that same month, the Respondent took her mother to see a solicitor, Mr. Vumbaca, to prepare a new will. Mr. Vumbaca was not the solicitor who had prepared the 2007 Will.
Mr. Vumbaca prepared a new will which bequeathed the Toronto Home to the Respondent and divided the residue of the estate between the Applicant and Respondent. However, because the Respondent drained her mother’s savings shortly after she was appointed POA there was nothing left for the Applicant when their mother passed away two years later. Mr. Vumbaca also prepared new POAs appointing the Respondent as sole POA for Property and Personal Care. Finally, he prepared the necessary documents to affect the transfer of the Toronto Home to the mother and the Respondent as joint tenants.
In May 2016, Maria suffered another fall and underwent a second hip operation. Following the operation, the Respondent told the hospital staff she did not want the Applicant to see their mother.
The Litigation
The Applicant challenged the validity of the will Mr. Vumbaca prepared on the grounds that her mother lacked capacity and was subject to undue influence at the hands of the Respondent. The Applicant also sought to set aside the inter vivos transfer of the Toronto Home.
An application was commenced on August 30, 2016 to set aside the transfer of the property, void the 2016 POA documents and have the parties’ mother undergo a capacity assessment.
Maria was represented by section 3 counsel, Ms. Angelini, and underwent a formal capacity assessment in June 2017 with Dr. Bruto. Dr. Bruto found that the mother lacked capacity in all decisional domains both contemporaneously and retrospectively when she signed the transfer, the will and POAs in April 2016.
Maria passed away on March 5, 2018.
The finding of undue influence
In finding that the Respondent had unduly influenced Maria into changing her will, the Honourable Justice Gilmore relied on the facts set out in the case of John Gironda et al. v. Vito Gironda et al., 2013 ONSC 4133:
- where the testator is dependent on the beneficiary for emotional and physical needs;
- where the testator is socially isolated;
- where the testator has experienced recent family conflict;
- where the testator has experienced recent bereavement;
- where the testator has made substantial pre-death transfer of wealth to the Respondent;
- where the testator has made a new will not consistent with prior wills;
- where the testator has failed to provide a reason or explanation for unexpectedly excluding a family member;
- where the testator uses a lawyer previously unknown to him or her and chosen by the Respondent.
All of the Gironda factors were present in this case. Maria had been dependant on the Respondent since her PMR diagnosis in 2012. That dependency was well documented in the medical records, including the geriatric assessment in 2014. Maria’s dependence on the Respondent only increased after her hip surgery in 2015.
Maria was also isolated. The medical reports were replete with references to Maria refusing outside care, refusing to take part in day programs and having mood and depression-related issues. The Respondent worsened this isolation by ensuring her mother’s extended family, including the Applicant, saw Maria as little as possible. The Respondent tried unsuccessfully to ban the Applicant from the hospital, caused her mother’s extended family to feel “uncomfortable” visiting Maria at home, and ensured no one was left alone with Maria while visiting at home.
The Court put significant emphasis on the pre-death transfer of wealth. Maria transferred her primary asset, the Toronto Home, to the Respondent without consideration. Additionally, despite the mother’s intention that her savings would to be divided between her daughters on her death, the Respondent emptied the account long before her mother passed away.
The 2016 Will was also a marked departure from the 2007 Will, and Maria was unable to explain with sufficient logic or consistency why she had chosen to exclude the Applicant:
Dr. Bruto noted in her reports that [the mother] offered ritualistic statements over and over again even when not asked. These statements were similar to ones repeated to health care professionals and others such as Ms. Angelini. The statements may be summarized as “[The Respondent] is inside the house”, “[The Respondent] is always with me”, “[The Respondent] knows everything”, “[The Respondent] did not leave me for one minute after her father died” and “[The Respondent] does not work in order to take care of me.” [The Respondent] offered these statements even without prompting. These were the same type of statements that [the Respondent] reviewed with her mother in advance of the interview with Ms. Angelini, and the same statements she made to Mr. Vumbaca, Dr. Bruto and to Ms. Angelini.
Finally, the Court relied on the Respondent’s “insidious attempts” to paint her sister in a negative light. The Respondent attempted to exclude the Applicant from any and all decisions relating to their mother and even went so far as to attempt to ban the Applicant from the hospital. She told their mother that the Applicant had abandoned her, that she was a liar and a bad person.
Relying on the applicability of the Gironda factors, the Court set aside the 2016 Will as well as the house transfer on grounds of undue influence.
Take Aways
Abbruzzese provides a detailed analysis on the types of behaviour and actions that will qualify as coercion or undue influence. It reminds us that while testamentary capacity and undue influence are distinct concepts, the vulnerability of a testator, be it mental or physical, will affect their ability to resist coercion. Objectors seeking to prove undue influence should be guided by the Gironda factors and remember the law turns on the facts. However unsavory those facts may be.
In Abbruzzese, the Applicant was represented by Beard Winter’s very own, David Delagran, and Genevieve Madill. Any questions regarding this case study or estate matters generally should be directed to Beard Winter’s Estates Litigation Department via email to David Delagran (ddelagran@beardwinter.com) or Genevieve Madill (gmadill@beardwinter.com).