2008 BCSC 749 Brydon v. Malamas

Before: The Honourable Mr. Justice Halfyard

Reasons for Judgment

Counsel for the Plaintiff:	G.S. Hamilton
Counsel for the Defendants:	R.D. Lee M.L. Isaak
Date and Place of Trial:	February 18-22 and 25-29, 2008 and April 2-3, 2008
	Vancouver, B.C.

The action

[1] This has been the trial of a probate action in which the plaintiff Pam Brydon challenges the validity of the will made by Stella Sirgianidis on October 19, 2004. The plaintiff also challenges the validity of two bank account transfers and an RRSP beneficiary designation executed by Stella Sirgianidis on October 12, 2004, and a transfer of land executed by her on October 13, 2004.

[2] The plaintiff alleges two grounds upon which she says these transactions should be set aside, namely:

(a) that at the time she executed the transfers, beneficiary designation and the will, Stella Sirgianidis lacked the mental capacity required by law to transfer real or personal property, or to make a will; and

(b) that Stella Sirgianidis executed the said documents as a result of undue influence exerted upon her by the defendant Mary Malamas, and not of her own free will.

[3] The defendants allege that Stella Sirgianidis had adequate mental capacity at all material times. They deny undue influence. They have filed a counterclaim in which they claim a declaration that the will is valid, and an order that it be admitted to probate.

[4] In the alternative, the defendants concede that if Stella Sirgianidis lacked mental capacity in October, 2004, then her will made on July 28, 1995 will govern the distribution of her estate.

The parties

[5] Stella Sirgianidis (“Stella”) died in hospital at Vancouver on October 30, 2004, at the age of 66. The final cause of her death was pneumonia, which she contracted while suffering from acute leukemia which was terminal. She had worked as a registered nurse since the 1970s and retired from that employment in October, 2002. She had never married and had no children.

[6] The plaintiff, Pam Brydon, was the grandniece and the goddaughter of Stella. The plaintiff’s mother, Agappi Kennell, was the daughter of Margaret Baxevanidis (“Margaret”). The plaintiff’s mother was Stella’s niece, and the plaintiff’s grandmother (Margaret Baxevanidis) was Stella’s sister. The plaintiff is now 40 years of age. She was married to Christopher Brydon on August 8, 1998. They have two children, Keelan, who is now 8, and Rory, who is now 5 years of age. The plaintiff and her family live at 2496 West 13th Avenue in Vancouver.

[7] The defendant, Despina (Mary) Malamas (“Mary”) was a sister to Stella and Margaret. She is the mother of the defendant Jimmy Malamas. She has two other children, Strato Malamas and Margarita Morfidis. She is now 76 years of age. Her husband died on July 15, 2001.

[8] The defendant Jimmy Malamas is the son of Mary Malamas. He is married and has four children. In the will made by Stella on October 19, 2004, he is named as an executor (along with his mother Mary, and his brother Strato Malamas).

[9] The parties have all lived in the Vancouver and Surrey area for many years.

Facts not in dispute

[10] For many years, Stella owned and lived in a house located at 2555 West 8th Avenue in Vancouver. She lived alone on the main floor of the house, and rented the upstairs and basement suites to tenants. From 1975 onward, Stella suffered from schizophrenia. She was admitted to Riverview Hospital for treatment in 1975, but was not hospitalized for her condition again until March, 2004. During the intervening years, she received treatment through the Kitsilano – Fairview Mental Health Team, which consisted mainly of injections of the anti-psychotic drug Moditen every two weeks. Apart from infrequent episodes of paranoia arising from work-related stress, Stella was able to function normally and work full time as a registered nurse at St. Vincent’s Arbutus Hospital which is a long-term care facility for elderly patients. She did everything within her power to conceal the existence of her illness, from her family, her friends, and her employer.

[11] For a number of years, Stella, Margaret and Mary had jointly owned the house and land at 2344 Vine Street in Vancouver. In or about 1989, Stella and Margaret purchased Mary’s interest in the property, and Mary transferred her interest to Stella and Margaret.

[12] On December 6, 1983, Stella made a will. Stella had a close and loving relationship with her sister Margaret and with the plaintiff. She had a good relationship with Mary and with the children and grandchildren of Margaret and Mary. But her relationship with the plaintiff was unique, in that she was Stella’s goddaughter. Margaret and the plaintiff also had a very close and loving relationship.

[13] In her will of December 6, 1983, Stella made the plaintiff her main beneficiary. The gifts to the plaintiff were the following:

(a) all the contents of Stella’s house;

(b) all Stella’s interest in the property at 2344 Vine Street in Vancouver (which Stella then owned together with her sister Margaret);

(d) fifty percent of the residue of her estate (she left twenty-five percent each to her sisters Margaret and Mary).

[14] The other specific bequests in Stella’s will of December 6, 1983 were $5,000 each, to her sister Margaret and Margaret’s daughter Agappi (the plaintiff’s mother). The plaintiff was named as the first executrix of this will.

[15] On July 28, 1995, Stella made a new will. The plaintiff continued to be the main beneficiary, but there were some changes and additions. The main provisions were as follows:

(a) the plaintiff was given Stella’s interest in her property at 2555 West 8th Avenue (and the property at 2344 Vine Street was not mentioned);

(b) the plaintiff was given Stella’s furniture, jewellery and automobile;

(d) $5,000 was given to each of Dennis Baxevanidis (Margaret’s son), Agappi Kennell (Margaret’s daughter), Margaret Morfidis (Mary’s daughter), Strato Malamas (Mary’s son), and Jim Malamas (Mary’s son);

(e) Stella gave her R.R.S.P. in equal shares to eight people, being the five persons just named, and Pamela Vitis (the plaintiff), Despina Malamas (Stella’s sister Mary) and Gremeta Baxevanidis (Stella’s sister Margaret).

(f) Stella gave fifty percent of the residue of her estate to the plaintiff, and twenty-five percent each to her sisters Margaret and Mary.

[16] Stella named Agappi Kennell as her executrix in the 1995 will, and named the plaintiff, her goddaughter, as alternate executrix.

[17] Stella and Margaret had given instructions to Stella’s lawyer David Macfarlane to transfer the Vine Street property to the plaintiff, before Stella made her will on July 28, 1995. On August 26, 1995, Stella and her sister Margaret transferred title to 2344 Vine Street to the plaintiff, and this transfer was registered on September 5, 1995. The plaintiff moved into the Vine Street Property in November 1995.

[18] After her marriage in 1998, the plaintiff lived in the Vine Street house with her husband and children, and they were still living there at the time of Stella’s death on October 30, 2004. Stella’s residence at 2555 West 8th Avenue was nearby; only a few minutes walk from the plaintiff’s home. The plaintiff’s grandmother, Margaret, then lived at 2396 West 14^th Avenue in Vancouver, which was also nearby and was only three or four blocks away from the plaintiff’s residence.

[19] In late 2000, the plaintiff’s grandmother, Margaret (Stella’s sister) had a stroke and was partly paralyzed for a time. After she was released from hospital, Stella moved in with Margaret at Margaret’s residence to care for her. Stella lived mainly at Margaret’s place for about a year, at this time. In the spring of 2002, Margaret transferred her property at 2396 West 14th Avenue to her son Dennis. Margaret then moved to live with Stella at Stella’s residence at 2555 West 8th Avenue (and she was living there at the time of her death on May 24, 2004). Stella retired in October 2002.

[20] Mary and her husband had been living in Surrey. Mary’s husband died in 2001, after he had been ill for some time, and living in a nursing home. When her husband was taken into care, Mary went to live at her daughter’s place on West 23^rd Avenue in Vancouver. When he died, Mary moved into another house owned by her daughter at 2671 West 12^th Avenue in Vancouver. Mary still owned the house in Surrey.

[21] The manufacturer of Moditen stopped making that drug in March 2003. Stella’s doctor prescribed Modecate in its place, but Stella did not like the effects of this drug on her, and eventually stopped taking it. In March, 2004, Stella was having “auditory hallucinations,” together with depression and sleep difficulties. She was committed to hospital under the Mental Health Act and was treated for her illness at the Psychiatric Department of the U.B.C. Hospital. She was admitted on March 22, 2004, and was not released until June 17, 2004. She was seriously ill and had many psychotic episodes. While at the hospital, Stella was able to leave the hospital from time to time, on day passes. Her sister Margaret died on May 24, 2004, while Stella was in hospital. Stella attended at Margaret’s funeral and the reception that followed, on a day pass. Stella was very close to Margaret, and her sister’s death upset Stella deeply.

[22] After her release from U.B.C. Hospital, during the first part of the summer of 2004, Stella appeared to be in the recovery stage. But by the end of July, she had stopped taking her anti-psychotic mediation. By late summer, her health was failing. The plaintiff visited Stella at Stella’s house, in August 2004. The plaintiff’s account of what Stella said and did during this visit is in dispute.

[23] By September 2004, Stella’s mental and physical condition had deteriorated to a significant degree. On August 12, 2004, Stella telephoned Marg McAnerin, her psychiatric nurse, to cancel her appointment scheduled for August 18, 2004. She told Ms. McAnerin, in effect, that she did not want to give any more blood samples for testing and did not want to see Dr. Buskard (her haematologist) again. Ms. McAnerin contacted Stella by telephone on September 13, 2004. Stella told her, in substance, that she did not want to see any more psychiatrists, that she had changed to a new family physician and changed drug stores, and she did not want Ms. McAnerin to give any information about her to her new physician. Stella also told her she was too busy with renovations to continue visiting with the Mental Health Team. From the manner and content of her speech, Ms. McAnerin formed the opinion that Stella was “getting sick.” Ms. McAnerin also talked to Mary Malamas at this time, and, from their conversation, she got the impression that “Mary has no understanding of Stella and her illness.”

[24] In or about September, 2004, Stella’s sister Mary moved into Stella’s house and brought her furniture with her.

[25] Dr. Risling and Ms. McAnerin met with Stella on September 30, 2004. At that time, Stella appeared worried, and said that her sister had moved into the main floor of her house and made Stella live in the basement, that she (Stella) was now living in the basement, that her sister had taken control of everything and was making decisions for her, and that Margaret’s son (Dennis) and daughter (the plaintiff’s mother) had removed her as executor of Margaret’s will because of her being mentally ill.

[26] Stella’s physical and mental health continued to deteriorate. Dr. Buskard and Ms. McAnerin met with Stella on October 7, 2004. Dr. Buskard told Stella that her white blood cell count was very low, that he was concerned she might have leukemia and that he wanted her to come to the hospital for treatment. Stella effectively denied that she had leukemia, and rejected the idea of going to hospital for treatment.

[27] On October 8, 2004, another psychiatric nurse, Gloria Amirault, spoke to Stella by telephone. During the conversation, Stella said, among other things, that she was hearing voices and that spirits were inhabiting her body. Ms. Amirault passed this information on to Ms. McAnerin who then communicated with Dr. Risling. It appears that on October 8, Dr. Buskard had firmly diagnosed Stella as having acute leukemia, and being in need of immediate treatment.

[28] Because Stella had refused to undergo treatment, was refusing to take anti-psychotic mediation and appeared to be having a psychotic episode, Dr. Risling decided that she should be compelled to come to the hospital under the authority of the Mental Health Act. Dr. Risling and Ms. McAnerin went to Stella’s home. Against her will, she was taken to Vancouver General Hospital. Mary Malamas was in the home and Ms. McAnerin spoke to Mary at this time. Ms. McAnerin also spoke to Jim Malamas (Mary’s son) by telephone from Stella’s house, and told him that Stella had leukemia and that they were taking her to hospital.

[29] While in hospital on October 9, 2004, Stella made the following statement to her doctor: “If I am going to die I’m prepared. My will is done and affairs are in order.”

[30] For reasons which are not altogether clear, Stella was released from hospital on October 9, (the next day) into the care of her sister Mary. It appears that the doctors were hopeful that Stella would agree on her own to accept treatment for leukemia. While still out of hospital, on October 12, 2004 (the first business day after the Thanksgiving long weekend), Stella and Mary went to the nearby branch of the Bank of Montreal, where Stella did her banking. Stella effectively transferred three of her four bank accounts into joint names with her sister Mary and Mary’s son, Jimmy Malamas. She also changed the designated beneficiary of her RRSP, from an unknown person, to Mary and Jimmy Malamas. Debbie Cheang, the bank employee who attended on Stella, believed that Stella was mentally competent to complete these transactions.

[31] Later on October 12, 2004, Stella was again committed to hospital under the Mental Health Act. Different medical personnel of the Kitsilano Mental Health Team were involved at this time. It appears that a psychiatrist, Dr. Voutsilakos, was of the opinion that Stella was not mentally competent to make decisions about her own treatment for leukemia by reason of her mental condition.

[32] Upon her committal to Vancouver General Hospital on October 12, 2004, Dr. Tesler-Mabe, consulting psychiatrist, expressed the opinion that Stella was not suicidal or homicidal and, according to the criteria required for committal under the Mental Health Act, she could be released. He appears to say that, in his view, Stella’s mental condition was not interfering with her ability to make decisions about her treatment.

[33] On October 13, 2004, while in hospital, Stella spoke to Brian Gregory, a notary public who had been retained and initially instructed by Strato Malamas, earlier that same day. At that time she signed a land transfer prepared by Mr. Gregory, which transferred a joint interest in her property at 2555 West 8th Avenue, to her sister Mary. She also told Mr. Gregory to prepare a will, and gave him instructions by way of handwritten notes that she gave to him and by answering his questions. Mr. Gregory did not know that Stella had been committed to hospital under the Mental Health Act, or that she had been schizophrenic for many years. He believed that she was hospitalized for treatment for leukemia. He also believed that she was mentally competent to execute the land transfer and to give him instructions to prepare a new will.

[34] Stella was kept in hospital, and on October 14, Dr. Drysdale confirmed the decision to commit Stella to hospital on October 12. Stella was experiencing psychotic delusions on October 14.

[35] Mr. Gregory prepared the will, and returned to the hospital to see Stella on October 19, along with his wife. He reviewed the contents of the will with Stella. In his opinion, Stella appeared to understand and approve the contents of the will. Stella then executed the will, and Mr. Gregory and his wife signed the will as witnesses. Mr. Gregory believed that Stella had the mental capacity required by law to make a will.

[36] The new will made Mary the main beneficiary of Stella’s estate, and excluded the plaintiff. In this will, Stella revoked any designation on any RRSP owned by her, gave all money in all her bank accounts to Mary, and gave all the residue of her estate to Mary. She appointed Jim Malamas, Strato Malamas and Mary, as executors.

[37] On October 20, 2004, Stella made a telephone call from her hospital bed to Agappi Kennel, using Jim Malamas’ cell phone. She wished Agappi a happy birthday, said she was in the hospital, and said that she had changed her will. Agappi relayed this information to the plaintiff. The plaintiff did not know that Stella had been taken to hospital on October 8 or October 12, and knew nothing about Stella transferring her bank accounts or her land, or about Stella changing her will. She did not know that Stella had leukemia.

[38] The plaintiff went to the hospital to see Stella that same day. Stella was angry, and the first thing she said to the plaintiff was, “You’re selling the house”. The plaintiff was taken aback by Stella’s behaviour towards her, which was entirely out of character. She left the room and located Stella’s doctors, and found out that she had leukemia, and inquired about what could be done for Stella. When she returned to Stella’s room, Stella had calmed down, and there was no more talk about the sale of the Vine Street property. The subject of Stella changing her will was not discussed. The plaintiff was not informed that Stella had transferred a joint interest in her house and land, to Mary.

[39] On October 21, the plaintiff took steps to arrange a meeting with Stella’s doctors and family members, to be held on October 25 at the hospital. She spoke to Mary and Jim Malamas by telephone about the meeting (the content of these conversations is in dispute). The family meeting with Stella’s doctors never took place.

[40] On October 25, 2004, at her request, Stella was discharged from hospital, again into the care of her sister Mary. Stella was then in the final stage of a terminal illness. She was returned to hospital on October 28, 2004 (not under the Mental Health Act), due to a worsening of her condition. Her doctors then committed her under the Mental Health Act for a third time, because she would not consent to treatment. She had developed pneumonia while suffering from acute leukemia, and she died in hospital on October 30, 2004.

[41] In or about early 2002, the plaintiff and her husband had purchased a house and land at 2496 West 13th Avenue in Vancouver. They rented it out for about two years. After their second child was born, the plaintiff and her husband found the Vine Street house too small for their family. Eventually, they decided to tear down the house at 2496 West 13th Avenue and build a new house there, for themselves. The construction of this home was completed in late 2004. The plaintiff and her husband listed their home on Vine Street for sale, in September 2004. They sold the Vine Street property in December, 2004, and moved into their new home on 13th Avenue. They had spent a substantial amount of money to renovate the Vine Street property.

[42] Until May, 2004, the plaintiff did not know that Stella had schizophrenia. She believed that Stella had suffered a nervous breakdown in the 1970s and that Stella was receiving ongoing treatment by way of monthly injections for a condition unknown to the plaintiff. It appears that Stella’s sister Margaret knew much more about Stella’s history of mental illness. Jim Malamas and Dennis Baxevenidis knew something of Stella’s history of having schizophrenia, but Mary and Strato Malamas denied knowing that Stella had a history of mental illness. The extent of their knowledge or lack of knowledge is a key issue.

[43] This action was commenced in March, 2005. Soon after that, a note was left at the door of the plaintiff’s house, which read: “Pam and Chris, Don’t fuck with Mary.” It is unknown who wrote or delivered this note.

The issues

[44] I have outlined many of the facts which were either not in dispute or not seriously contested, and which I find to be proved. There are many facts in dispute which I have not yet mentioned. In some cases, there are direct conflicts in the evidence of the plaintiff, and the evidence of one or more of the defendants’ witnesses. In other cases, there is no direct conflict in the evidence, but material facts alleged by one side are disputed by the other side. Finally, there are disputes about whether important inferences should be drawn from facts that have been proved.

[45] The two issues in the case, broadly stated, are as follows:

(a) Did Stella have the mental capacity required by law to complete the bank transactions on October 12, 2004, to execute the land transfer and give will instructions on October 13, and to make a will on October 19, 2004?

(b) If Stella did have the required mental capacity on October 12, 13, and 19, 2004, did she complete the said transactions and make a new will as a result of undue influence exerted upon her by Mary?

[46] The parties seemed to agree that the mental capacity required by law to enter into the inter vivos transactions completed by Stella on October 12 and 13, 2004, was much the same as the mental capacity required to make a valid will. There is some authority which supports that common sense proposition, and I was referred to the following cases on this point: Keljanovic Estate v. Sanseverino 2000 O.J. No. 1364 (Ont.C.A.) at paragraph 37; Mikita v. Lick [1992] B.C.J. No. 935 (B.C.S.C.); and Johnson v. McArton [1986] B.C.J. No. 2227 (B.C.S.C.). It is agreed that the burden of proving that the will of October 19, 2004 is valid is on the defendants. However, the defendants say that the onus of proof is on the plaintiff to negative mental capacity in respect of the inter vivos transactions. I will return to this issue later.

The law relating to mental capacity

[47] In order to establish testamentary capacity, the proponents of a will (in this case the defendants) must prove that, at the time the testator made his or her will:

(a) he or she signed the will, in compliance with the legislative requirements for lawful execution;

(b) the testator knew and approved of the contents of the will, before signing it; and

See Vout v. Hay, [1995] 2 S.C.R. 876 at paragraph 20.

[48] Speaking for the court in Vout v. Hay (again at paragraph 20), Sopinka J. stated:

… testamentary capacity requires the propounder of the will … to establish that the testator had a disposing mind and memory.

[49] The classic test for testamentary capacity, which has been adopted by the Supreme Court of Canada on several occasions, is the test described in Banks v. Goodfellow (1870), L.R. 5 Q.B. 549 at 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.

[50] The court in Banks v. Goodfellow suggested that if the test for testamentary capacity was met, then the testator could be said to have “a sound and disposing mind and memory”. When Sopinka J. referred to “a disposing mind and memory” at paragraph 20 of Vout v. Hay, I infer that the court was reaffirming the test for testamentary capacity set out in Banks v. Goodfellow.

[51] I find (and it was not seriously contested) that Stella’s will of October 19, 2004 met the requirements of due execution and that she appeared to know and approve of the contents of her will before signing it. In these circumstances, the law recognizes a presumption that the testator possessed testamentary capacity. However, where the opponent of the will proves facts which create the suspicion that the testator did not have testamentary capacity, that presumption will be rebutted. In that event, the onus shifts back to the proponent of the will, to prove, on the balance of probabilities, that the testator did possess testamentary capacity. See Vout v. Hay at par’s 25 to 27. While the standard of proof remains the civil standard, where suspicious circumstances exist, the proponent must prove testamentary capacity to a higher degree of certainty than a mere fifty-one percent probability. In such a case:

The extent of the proof required is proportionate to the gravity of the suspicion….

See Re Martin; MacGregor v. Ryan, [1965] S.C.R. 757 at p. 766 (cited in Vout v. Hay at par. 24).

The allegations of suspicious circumstances

[52] The plaintiff submits that Stella carried out the bank account transfers on October 12, completed the land transfer and gave instructions for her will on October 13, and made her will on October 19, 2004, in the context of suspicious circumstances. It was argued (expressly or implicitly) that these circumstances included the following (my paraphrasing):

(a) Stella was suffering from schizophrenia and was experiencing psychotic delusions during the period from October 8, 2004, to October 25, 2004, but the defendants claim that they had no knowledge of such delusions, and no knowledge that Stella was receiving anti-psychotic medication during this period.

(b) Stella was suffering from acute leukemia from October 8, 2004 onwards.

(c) Stella’s inter vivos gifts and her new will effected a radical and sudden departure from her two previous wills, after Stella had favoured the plaintiff as her main beneficiary for more than 20 years, and when their relationship remained strong.

(d) Mary was living with and caring for Stella in September and October 2004, when Stella was not in hospital, and Mary became the main beneficiary under Stella’s new will.

(e) Stella told the plaintiff in August 2004 that Mary was pressuring her to change her will, so as to make Mary her main beneficiary, in place of the plaintiff. Stella also told the plaintiff that Mary wanted to move into Stella’s house and Stella said she did not want Mary to do so. The plaintiff advised Stella she should make her own decisions about these things, and then Stella telephoned Mary and told Mary not to move in with her.

(f) Stella told her psychiatrist, Dr. Eva Risling (and her nurse, Margaret McAnerin), on September 30, 2004, that Mary had moved in with her and was “taking control of everything” and “making all sorts of decisions” for her, and, in effect, had made her move into the basement and change her family doctor.

(g) On October 9, 2004, at VGH, Stella told one of her doctors: “If I’m going to die, I’m prepared. My will is done and affairs are in order.”

(h) The defendants did not tell the plaintiff that Stella had been taken to hospital, or that Stella had leukemia and did not have long to live.

(i) Strato Malamas told Mr. Gregory (the notary public) that Stella was mentally competent (by affirmatively answering Mr. Gregory’s question), but did not tell Mr. Gregory that Stella had been committed to U.B.C. Hospital or VGH under the Mental Health Act, or that Stella was receiving anti-psychotic medication.

(j) The defendants failed to ask any of Stella’s doctors for their opinion as to whether Stella had the mental capacity to make a will.

(k) On October 21, 2004, Mary and Jim Malamas made statements to the plaintiff by telephone in which they implied that the plaintiff was not deserving of any further generosity from Stella.

(l) On October 28, 2004, Jim Malamas called psychiatric nurse Gloria Amirault, and asked her opinion about whether Stella had the mental capacity to make a will, which he said she had done last week while in hospital.

[53] The defendants concede that there are enough suspicious circumstances established to rebut the presumption of testamentary capacity. They admit that Stella was suffering from schizophrenia and from the terminal disease of leukemia, and admit that these constitute sufficient suspicious circumstances. But the defendants deny that they knew Stella was experiencing psychotic delusions during the period from October 8 to 25, 2004. And they deny that any of the other alleged facts amount to a suspicious circumstance, either because they have not been proved, or because (if proved) they have been adequately explained. The defendants deny that Stella made the statements to the plaintiff in August 2004 as claimed by the plaintiff. They deny that Mary and Jim Malamas made statements to the plaintiff on or about October 21, 2004, as asserted by the plaintiff. The parties agreed that Stella had made the statements attributed to her, in the medical records (which included the statements referred to in par. 50(f) and (h) herein). But the defendants deny that Stella’s said statements were true.

[54] This dispute between the parties as to what suspicious circumstances have been proven is of great importance, because the gravity of the suspicion will determine the degree of probability to which testamentary capacity must be proved by the defendants. The determination of how many suspicious circumstances have been proved and how strong a suspicion has been created cannot be made without first deciding the issue of credibility.

The issue of credibility

The challenge to the plaintiff’s credibility

[55] The defendants challenged the plaintiff on several parts of her evidence. The facts asserted in the plaintiff’s testimony that are disputed by the defendants are:

(a) that her relationship with Stella remained strong;

(b) that in August, 2004, Stella told the plaintiff that Mary was pressuring her to change her will and had given Stella instructions as to what changes she should make;

(c) that during the same conversation in August, 2004, Stella complained about Mary wanting to move in with her, the plaintiff (in effect) suggested that Stella telephone Mary and tell her not to move in, and Stella made that telephone call to Mary;

(d) that Stella had never imposed any condition or elicited any promise from the plaintiff at the time she transferred the Vine Street property to the plaintiff to the effect that the plaintiff would never sell the property, or would never sell it to someone outside the family;

(e) that both Mary and Jim Malamas made angry comments to the plaintiff by telephone on October 21, 2004, to the effect that the plaintiff was selling the Vine Street property; that Mary said that she, and not the plaintiff, should have received the Vine Street property from Stella in the first place; and that Jim Malamas said he would fight the plaintiff to uphold Stella’s new will.

The evidence as to the plaintiff’s relationship with Stella

[56] The plaintiff testified in substance that the closeness of her relationship with Stella never changed. She acknowledged that, after she married and had children, she did not visit with Stella as often as she had previously done because she had less free time. But she said that Stella (and also Margaret) would visit her at the plaintiff’s home quite often.

[57] Counsel for the defendants attempted to show, in cross examination of the plaintiff, that she had rarely visited Stella in the last year or two of her life. The plaintiff acknowledged that her visits to Stella’s house had decreased. But she said that Stella visited her place quite often and that they maintained telephone contact with each other on a regular basis. When counsel attempted to show, by referring to the plaintiff’s own calendar notes, that she had very few telephone conversations with Stella in the last months of her life, the plaintiff gave both a denial and an explanation. She explained that she made many attempts to contact Stella by telephone in September and October, 2004, but only reached her on one or two occasions. The plaintiff said that sometimes Stella’s telephone appeared to be out of order, and on other occasions Mary answered and gave reasons why Stella could not talk to the plaintiff (she was sick, she was asleep, or she had a doctor’s appointment). The plaintiff had no ready explanation for counsel’s suggestion that, if she was concerned to see Stella, the plaintiff could simply have walked to her house, which was only a few minutes away. The plaintiff admitted (and this seemed to be part of her explanation) that she did not then believe that Mary was attempting to prevent her from seeing or talking to Stella. She also stated that she did not know (because no one had told her) that Stella was becoming very sick.

[58] Counsel also suggested to the plaintiff that some of the money gifts she received from Stella were really loans. This was firmly denied. Counsel referred the plaintiff to parts of Stella’s account books, and suggested to her that Stella had considered some of these alleged gifts to be loans. Again, this was flatly denied.

[59] Mary, Jim Malamas, Judith Marchesi and Dennis Baxevanidis all gave evidence to the effect that Stella either complained about or commented on the plaintiff not visiting her regularly. Mary, Jim Malamas and Strato Malamas also stated in substance that Stella had, on occasion, complained that the plaintiff only came to see her, when she wanted money. The implication from the evidence of these witnesses was that the plaintiff had very little contact with Stella during the last few years of her life and that Stella blamed the plaintiff for this deterioration in their relationship.

[60] Jim Malamas testified that, after the plaintiff had given birth to her two children, Stella told him that she hardly saw Pam any more and that she only saw her when she wanted money. He said that Stella made this comment at some point after she was released from UBC Hospital (which was on June 17, 2004).

[61] Mary said that she was present when Stella (and/or Margaret) made a comment to the effect that the plaintiff only came around when she wanted money. Mary said that she stood up for the plaintiff on this occasion, and suggested it wasn’t true.

[62] Dennis Baxevanidis testified that after he and his family returned to Vancouver in April 2002 (after living in Victoria for 30 years) he regularly visited his mother Margaret at Stella’s place, and often saw Stella too, but says he never saw the plaintiff there. He said that, at some later point in time, Stella seemed to be disappointed that the plaintiff did not visit her very often, but never said so expressly.

[63] In support of their case on this issue, the defendants called Judith Marchesi (Stella’s upstairs tenant for many years) and Janet Rattray-Matthews (Stella’s neighbour of several years). Both these witnesses testified that they often saw Mary visiting at Stella’s place, but rarely (or never, in Ms. Rattray-Matthews’ case) saw the plaintiff come to Stella’s house in the last few years of Stella’s life.

[64] Ms. Marchesi testified that the plaintiff had previously come to Stella’s house with her mother quite often, and that Stella “really adored” the plaintiff. She said that after Margaret moved in with Stella, she only saw the plaintiff visit on two occasions that she can recall. Ms. Marchesi remembers Stella telling her that she wished that the plaintiff would visit her more often. She moved out of Stella’s house at the end of June, 2004, and did not see Stella after that time. When Ms. Marchesi last spoke to Stella by telephone in July or August 2004, Stella had told her that her white cell blood count was low, and she feared getting an infection. Ms. Marchesi knew that Stella had been experiencing delusions while hospitalized at UBC Hospital.

[65] Ms. Rattray-Matthews was Stella’s next-door neighbour from 2001 onward. She saw Stella, at least briefly, almost every day. Stella never made any complaints to her, except about having to spend money on her teeth. She did not know the plaintiff and had not seen the plaintiff visit at Stella’s place. She had never seen Stella exhibit any strange behaviour, and never knew that Stella suffered from a mental illness.

The evidence concerning the plaintiff’s meeting with Stella in August 2004

[66] The plaintiff testified that she visited Stella at Stella’s house in August 2004. She said that, at that time, Stella told her that Mary was pressuring her to change her will, so as to make Mary her main beneficiary. She stated that Stella further told her that Mary had given her instructions about what her new will should contain, and that Stella showed her what she (Stella) had written about Mary’s instructions. The plaintiff testified that, in effect, she told Stella that she should make up her own mind about what she wanted to do with her property, and not be influenced by Mary.

[67] The plaintiff further testified that Stella told her that Mary made her tenant move out, and was wanting to move into Stella’s house, but that Stella did not want her to do this. The plaintiff says that she suggested that Stella should let Mary know her feelings about this, and then Stella telephoned Mary, and told Mary she did not want her to move into her house. The plaintiff understood that Mary apparently agreed not to move in, and said Stella seemed relieved.

[68] In cross examination, the plaintiff acknowledged that she was worried about the serious concerns expressed by Stella about Mary, and about Mary’s apparent attempts to have her cut out of Stella’s will. When asked what she did about it, the plaintiff admitted that she did nothing more than advise Stella as already stated, except to call her mother and tell her about this meeting with Stella, and to discuss it with her husband.

[69] Mary testified and she denied making any attempt to get Stella to change her will. She denied that Stella telephoned her and told her that she did not want Mary to move into Stella’s house. Mary also denied telling Ms. Marchesi that she had to move out. Mary said that Stella was happy that she moved in with her.

[70] Judy Marchesi testified that it was Margaret and not Mary who gave her three months notice to move out.

[71] The defendants also pointed to the evidence which, if accepted, would support the two inferences that Stella was not the kind of person who could be dominated by another person, and that Mary is unsophisticated and does not speak English well, which made it unlikely that she could or did dictate terms of a new will to Stella.

The evidence as to whether there was any agreement or understanding between Stella and the plaintiff concerning the sale of the Vine Street property

[72] The plaintiff testified that Stella’s gift to her of (her half-interest in) the Vine Street property was unconditional. She said that Stella had never asked her not to sell the Vine Street property or not to sell it outside the family, and that she had never made any promise to Stella in this regard. Moreover, the plaintiff stated that Stella had never even expressed a wish that she would not sell the property, or keep it in the family. It was implicit in the plaintiff’s evidence that Stella and Margaret had both given her the property as an unconditional gift.

[73] In cross examination, it was suggested to the plaintiff that she knew that Stella believed or understood that the plaintiff would never sell the Vine Street property to someone outside the family. This was firmly denied by the plaintiff. She repeated that Stella was well aware that the Vine Street house was too small for the plaintiff and her family and that they were building a new house which they expected to move into. She had also testified that she and her husband had spent about $200,000 to renovate and repair the Vine Street property, which was well known to Stella. The plaintiff said that she had once told Stella that they would have to sell the Vine Street property, and might even have to sell their other property (this conversation was said to be in 2002, before the plaintiff and her husband had decided to construct a new home).

[74] Both in direct and cross examination, the plaintiff acknowledged that, when she went to visit Stella in hospital on October 20, 2004, Stella was immediately very upset and expressed anger about her selling the Vine Street house. She said she was surprised and taken aback by Stella’s reaction, she did not know what to say and so she avoided the subject. She said she left the room for awhile, and when she returned Stella had calmed down, and neither of them raised the subject again.

[75] Christopher Brydon, the plaintiff’s husband, had a different recollection of the first time he and his wife visited Stella at Vancouver General Hospital. He said they both went into Stella’s hospital room together, and he recalled Stella asking him if they were selling the Vine Street house, and him answering yes. He said that Stella only said “Oh,” and did not appear to be upset about it. He said Stella began talking about how she had been taken to hospital, and expressed outrage about it, which he and his wife agreed with. Mr. Brydon said his wife left the room at one point for about five minutes. He also said that Stella made strange statements about a stalker and about the Salvation Army delivering Chinese food to her back door.

[76] Mary, Jim Malamas, Strato Malamas and Dennis Baxevanidis all testified to the effect that Stella was upset when she found out that the plaintiff had listed the Vine Street property for sale. In substance, they all said that Stella expressed the belief that the plaintiff had promised Stella that she would never sell the Vine Street property, or that she would not sell it to anyone outside the family. I will summarize the evidence given by each of these witnesses on this issue.

[77] Mary testified that Stella had told her (at some unspecified time after Stella and Margaret had transferred the Vine Street property to the plaintiff) that the Vine Street house was dear to her and she hoped that it was never sold by Pamela to anyone outside the family. Mary further testified that, at a later date (I infer about late September 2004) a man named John Sirgianidis came to Stella’s house when Mary was there and told Stella that the Vine Street house was up for sale. She testified that Stella got a jacket and went with Mr. Sirgianidis in his car to check on the property. Mary stated that, when Stella returned to the house, she told Mary “I told her not to sell,” she was crying, and she said “when they sell, you get me my money back.” Mary says that she said to Stella: “You gave her the house.”

[78] Mary testified that she had not seen the plaintiff visiting Stella when she was in Vancouver General Hospital in October 2004, but that one day when she came to see Stella at the hospital, Stella told her that the plaintiff had just been visiting her. Mary stated that Stella told her that the plaintiff asked Stella to leave her house to her (the plaintiff) and says that Stella was upset and crying when she told Mary about this. (I do not recall the plaintiff being cross examined about making this alleged request to Stella and of course the plaintiff’s evidence was to the effect that she did not yet know that Stella had transferred a joint interest in her house, to Mary.)

[79] In cross examination, Mary repeated her denials that she had influenced, or attempted to influence Stella in any way with respect to transferring her property or changing her will. She also continued to deny that she had said or done any of the things complained of by Stella in Stella’s alleged statements to the plaintiff in August 2004 and in statements to her doctor and psychiatric nurse on September 30, 2004. Mary admitted that she had owned a house in Surrey since 1978 (up until 2007 when she sold it) and that Stella knew she owned that house at all material times.

[80] Jim Malamas testified that he was at Stella’s house on an uncertain date in October, 2004, and that Stella told him that she was unhappy that the plaintiff was selling the Vine Street house outside the family. He said that Stella had told him she was informed by John that there was a for-sale sign on the Vine Street property and that she went and saw the sign herself. He testified that Stella was upset and said: “I gave it to Pam she was not supposed to sell it.” He testified that he told Stella, in effect, that she could do nothing about it, because Pam owns the property.

[81] Dennis Baxevanidis testified that Stella became very upset when she found out that the plaintiff had put the Vine Street property up for sale. He said that Stella asked him to go and get the property returned to the family. He said that he did not make any attempt to do so, because he knew the property was in the plaintiff’s name, and believed that it would be futile to approach her with such a request. He said that he suggested to Stella that she should go and talk with the plaintiff, and stated that he never told the plaintiff about what Stella had said.

[82] In cross examination, Mr. Baxevanidis said that his mother Margaret favoured his sister Agappi during her lifetime and in her will (in which Margaret bequeathed her house to Agappi). He said that his mother stopped working to raise Pamela and gave Pamela her interest in the Vine Street property, all of which he believed had reduced the residue of her estate (which he implied was unfair to him). He acknowledged that he commenced an action under the Wills Variation Act, to challenge his mother’s will, but said he never pursued that action. He was reluctant to admit that he was not happy with what he received under his mother’s will.

[83] Mr. Baxevanidis said that Stella was not concerned that the plaintiff was selling the house, but rather was upset by the fact that she was selling the Vine Street house outside the family. He acknowledged that he did not tell the plaintiff about Stella’s concerns, and said that was because he believed the plaintiff would not give the property back. He said he never told his sister Agappi about it because there was “no point.” He said he did not tell Mary about Stella’s upset over the sale of the Vine Street property, but said that he was sure that Mary was well aware of it. He says he did tell Jim Malamas about Stella’s concerns, but said that was quite a bit later after the time Stella first mentioned it. He said that he did not tell Strato Malamas about Stella’s upset over the sale of the Vine Street house, and said that he had no conversation with Strato about the matter at all. Mr. Baxevanidis said that he did not approach the plaintiff to offer to purchase the Vine Street property, nor did he suggest to Strato or Jim Malamas that they should do so. He said that, one day he visited Stella at VGH immediately after the plaintiff had left her room, and when he went in, Stella was upset, and called the plaintiff “a bitch,” in Greek.

[84] Dennis Baxevanidis stated that he did not know that Stella was transferring her house to Mary, or that Stella wanted to change her will.

[85] Mr. Baxevanidis acknowledged that he did not call the plaintiff, or his sister Agappi, to tell them that Stella was in the hospital, but implied that this was because, at least at the beginning, there was no fear that Stella was at risk of dying.

[86] Strato Malamas testified that he was at Stella’s house in September, 2004, and Stella asked him if he knew that the Vine Street house was for sale. He replied that he did not know that, and Stella said in substance, that Pam had promised her that she wouldn’t sell the property outside the family.

[87] Strato Malamas testified that he believed the date when Stella told him these things was September 19, 2004, because he says he made a note in his day-timer book on September 19, 2004, writing: “Stella upset Pamela selling Papa’s house.” He said he does not recall making that note, but stated that it is his handwriting. He testified that he found his day timer on February 20, 2008, (which was two days before he testified at the trial) while looking through a box of documents in his basement. He said that he was looking for his 2004 day-timer book, and said he found Stella’s will dated July 28, 1995, in the same box as he found his day timer. He said he did not know how the will got into the box in his basement, but said it must have occurred when he helped clean out Stella’s house.

[88] In cross examination on this issue, Strato Malamas was asked why he had not looked for his 2004 appointment book long before this trial (since there had been a previous trial date set which had been adjourned), and he answered: “I don’t know.” He acknowledged that he did not make any notes in his day-timer book about any statements Stella had made while at the hospital.

The evidence of telephone conversations between the plaintiff and Mary, and between the plaintiff and Jim Malamas, on October 21, 2004

[89] The plaintiff testified that, after she spoke to Stella’s doctor on October 20, 2004, she made telephone calls to Mary and then to Jim Malamas (likely on October 21) in order to arrange for their attendance at a meeting with Dr. Buskard (Stella’s haematologist) at the hospital on October 25. The meeting was being set up to discuss Stella’s condition, and possible treatment. The plaintiff testified that, when she telephoned Mary, Mary was very angry at her for selling the Vine Street house and said that she (the plaintiff) should never have got that house and that it should have been hers (Mary’s). The plaintiff says that she was very surprised by Mary’s statements and anger, that she did not know what to say, and so she did not really say anything except to notify Mary about the family meeting with Dr. Buskard.

[90] The plaintiff testified that when she called Jim Malamas, he was just as angry as his mother had been. She said that Jim Malamas stated to her, in effect, that her family had already received too much of the pie and that they were a bunch of greedy S.O.B.s. The plaintiff said that Jim Malamas further stated that he had spoken to some doctors, that Stella had changed her will and that it was fair, and that he would fight her all the way to uphold Stella’s new will. The plaintiff said that Jim Malamas also said he would do whatever Stella wanted, even so far as to bring her home from the hospital. The plaintiff said that she was taken aback by all of these comments, but only responded by saying that it might not be a good idea to bring Stella home because Mary may not be able to give her proper care, and notified him about the upcoming meeting for October 25, and then ended the call.

[91] In cross examination, it was suggested to the plaintiff that neither Mary nor Jim had made the statements she claimed they made, in these telephone conversations. The plaintiff insisted firmly that they did.

[92] In her testimony, Mary flatly denied that the plaintiff had even made this telephone call to her. This denial carried with it a denial that she made the statements attributed to her by the plaintiff, at any time. Mary also said that she was happy when Stella and Margaret transferred the Vine Street property to the plaintiff.

[93] On this issue, Jim Malamas admitted that the plaintiff telephoned him and that they discussed a potential family meeting with Stella’s haematologist, which he said he agreed with. He said that he did not recall any discussion about the Vine Street property or Stella’s will. He did not directly deny that he made the statements attributed to him by the plaintiff, but only said that he did not recall making them.

The challenge to the credibility of the defendants’ witnesses

[94] The plaintiff challenged the credibility of both defendants, and the defence witnesses Strato Malamas and Dennis Baxevanidis. In particular, counsel for the plaintiff took issue with the following parts of their evidence:

(a) the assertions by all of these four persons that they did not know (or even suspect) that Stella was experiencing psychotic delusions during the period from October 8 to 25, 2004, which may have affected her mental capacity;

(b) Mary’s denial that she was pressuring Stella to change her will, and her denial that Stella telephoned her and asked her not to move into Stella’s house;

(c) the assertions of the defendants and Strato Malamas that Stella spontaneously decided, on her own (i.e. without any undue influence from Mary and without being influenced by any psychotic delusion) to carry out the transactions and make the new will which are the subjects of dispute in this lawsuit;

(d) Mary’s denial that the plaintiff telephoned her on October 21, 2004 (which included the denial that she spoke the words attributed to her by the plaintiff);

(e) Jim Malamas’ alleged failure to recall speaking the words attributed to him by the plaintiff, in their telephone conversation on October 21, 2004; and

(f) the assertions (or implications) by the defendants and Strato Malamas that the plaintiff did not have a close or strong relationship with Stella for about two years before Stella died.

[95] On the first point, counsel for the plaintiff cross examined the defendants and Strato Malamas extensively, referring to many medical records and suggesting that they knew Stella was experiencing psychotic delusions during the period from October 8 to 25, 2004. It was established that Mary saw Stella every day during this time, and that Strato Malamas saw her almost every day. Jim Malamas saw Stella less frequently but said he kept in touch with her regularly by telephone. Yet they all testified to the effect that Stella had never exhibited any unusual behaviour or made any strange statements. Jim Malamas acknowledged that he knew Stella suffered delusions while in UBC Hospital, and also that he had been told (likely by a doctor) that, while she was in hospital in October 2004, Stella was saying that she had spirits in her body. It was apparent that the defendants and Strato Malamas had not asked any of Stella’s doctors for an opinion about her mental capacity to transfer property or make a will, and that none of them, or Dennis Baxevanidis, had informed the plaintiff that Stella was sick, or that she had been taken to hospital, or that she was suffering from leukemia and did not have long to live.

[96] Mary and Strato Malamas denied knowing that Stella had previously made a will, or knowing that Stella intended to leave her house to the plaintiff when she died. Jim Malamas testified that he knew Stella had made an earlier will. He also said that he had known for years that Stella intended to leave her house to the plaintiff, and that this was well known in “the family” for at least a few years before Stella died. But the evidence shows that no one told the plaintiff that Stella was going to transfer (or had transferred) her house to Mary, or that Stella was angry at the plaintiff for putting the Vine Street house up for sale, or that Stella said she wanted to change her will to make Mary her main beneficiary.

[97] I have reviewed most of the evidence relating to the matters challenged by the plaintiff, except for some of the evidence which also relates to the reasons advanced on behalf of the defendants to provide a rational explanation for Stella’s alleged spontaneous and independent decisions to make the bank account transfers on October 12, to make the land transfer on October 13, and to give will instructions on October 13.

[98] The reasons alleged by the defendants for Stella’s “changes” in October 2004, were based on the evidence of Mary, Strato Malamas, Jim Malamas and Dennis Baxevanidis. Those alleged reasons were (my paraphrasing):

(a) Stella had developed a more close and loving relationship with Mary in the last few years of her life, and Stella wanted to show her gratitude for the help and care given to her by Mary.

(b) Stella’s relationship with the plaintiff had deteriorated in the last few years of her life, and Stella blamed the plaintiff for this, and resented it.

(c) Stella believed that she had already given enough (money and property) to the plaintiff (and the plaintiff’s mother), in her lifetime.

(d) Stella believed that the plaintiff had broken her promise to Stella, that she would not sell the Vine Street house (or would not sell it to a person outside “the family”).

[99] Jim Malamas testified that he was present in Stella’s hospital room, when Stella said she wanted to make a new will (or to change her will), and he said that Strato took care of getting a lawyer to do this. He further stated that Stella did not say anything about wanting to transfer her home to Mary. He said he was not present when Stella signed the land transfer, but said that Stella later told him she transferred her house into her and Mary’s names, “so whoever lives the longest can live in Kitsilano.” He could not recall telephoning Mr. Gregory on or about October 20, 2004, telling Mr. Gregory that Stella wanted to make changes to her (new) will, and asking Mr. Gregory to send him a copy of Stella’s will so he could make the changes. But he said that, if Mr. Gregory says he did this, then he would accept that he called and said these things.

[100] Mary said she did not know why Stella wanted to go to the bank on October 12, until after Stella talked to the bank representative (Debbie Cheang). It was implicit in Mary’s testimony that she believed Stella transferred her bank accounts and her land, and made Mary the main beneficiary under her will, because she loved Mary and was grateful for all the help and care Mary had given her since her breakdown in March 2004. Mary identified the cards given to her by Stella on July 17 and 18 and on October 17, 2004 (2), expressing love and affection and gratitude.

[101] Some of the key evidence given by Strato Malamas relating to these alleged reasons has not yet been reviewed.

[102] Strato Malamas testified in direct examination that he was visiting Stella in her hospital room on or about October 12, or 13, 2004, when Stella suddenly said: “I don’t want them. I don’t want them.” He said he asked, “Who?” and Stella replied: “Agappi and Pamela.” He said he then asked Stella: “What do you mean?” and Stella answered: “I don’t want them in my will; they’ve already got enough from me.” He said that Stella also told him that she wanted a place for Mary to live, and wanted Mary to have her house. He said that Stella asked him to contact a lawyer, to get it taken care of.

[103] Strato said that Stella did not say that she had made a previous will, and that he never knew that she had previously made a will.

[104] Strato further testified that he contacted Mr. Gregory, a notary public, and gave him instructions to prepare documents so that Stella could transfer her house to herself and Mary as joint tenants. He said that he told Mr. Gregory that Stella was ill, and that she had leukemia and he did not know how long she had left to live. He said (on direct) that he did not have any discussion with Mr. Gregory about Stella’s mental capacity, but then said “I’m not sure.”

[105] Strato Malamas also testified that in or about 2001, when Stella was looking after her sister Margaret following her stroke, he was visiting at Margaret’s house on 14^th Avenue, when Stella told him, in effect: “When I die, I’m giving my house to your mother.”

[106] In cross examination, counsel for the plaintiff challenged Strato Malamas and sought to show weaknesses in his credibility. When asked: “Did you tell the notary, that Stella was mentally competent?” Strato answered: “I’m not sure, I don’t know.” On further questioning, Strato acknowledged that if Mr. Gregory says he had told him Stella was mentally competent, then he would agree that he did tell him that. When asked why he would tell the notary that Stella was mentally competent, Strato answered, in substance, that this was what he believed.

[107] Strato admitted in cross examination that he did not tell Mr. Gregory that Stella had been hospitalized from March to June, 2004, or that she had been committed to hospital on October 8, and October 12, 2004, under the Mental Health Act against her will, or that she had schizophrenia or that she was taking anti-psychotic medication. He told Mr. Gregory that Stella had leukemia and had refused treatment, but did not tell him that this refusal was why she had been put in the hospital.

[108] Strato Malamas did not articulate any clear explanation for not telling Mr. Gregory about these things, but it was implicit in his evidence that he believed it was unnecessary to tell Mr. Gregory about them, because he believed there was nothing wrong with Stella’s mental capacity. He repeatedly testified that Stella had never exhibited any strange or psychotic behaviour in his presence throughout all of the years that he knew her. He testified that he saw Stella almost every day that she was in the hospital in October, 2004, and never witnessed any psychotic behaviour by her during her hospitalization. He said that he knew, by October 12, 2004, that Stella had been committed to hospital under the Mental Health Act, but says he believed that was done so that the doctors could treat Stella for leukemia. He knew by this time that Stella also had schizophrenia, but seems to say that he did not know that she required any treatment for her mental illness during her hospitalization in October, 2004. He further stated that he did not know why Stella had spent time at the UBC hospital, and that no one had ever told him that Stella had delusions or hallucinations during that time.

[109] Strato Malamas acknowledged that he telephoned Mr. Gregory on November 1, 2004 (the day after Stella died) and instructed Mr. Gregory to take steps to have Mary registered as the sole owner of Stella’s former property. He acknowledged that this registration was completed by November 4, 2004.

[110] Strato testified that he believed Stella was only committed to hospital under the Mental Health Act, because she was refusing to accept treatment for leukemia, and not because she was psychotic or thought to be incapable of making decisions about her own treatment by reason of her mental disorder.

[111] Strato Malamas testified further that Stella had always taken care of her own financial affairs, and seemed to be quite capable of continuing to do this, in October, 2004, even while she was in the hospital.

[112] Brian Gregory testified that Stella told him (on October 13, 2004), among other things, that her sister Mary was living with her, and that she wanted Mary to have the house after she died. Mr. Gregory said he formed the impression that Stella loved and trusted Mary.

Conclusions on credibility

The credibility of the plaintiff

[113] The credibility of the plaintiff was challenged, not on the basis that she was mistaken about the facts in dispute, but on the ground that she was dishonest. The defendants have failed to persuade me that the plaintiff knowingly gave false evidence.

[114] It was not shown that the plaintiff had made any previous statement that contradicted her trial testimony. Her husband, Christopher Brydon, gave evidence about their October 20, 2004 visit to Stella in V.G.H. which was inconsistent with the plaintiff’s evidence in some respects. In particular, he said that he and the plaintiff had gone into Stella’s room together; he recalled Stella asking if they were selling the Vine Street house, and when he answered yes, he said that Stella did not appear to be upset by it. He also said that Stella spoke about being stalked and about the delivery of Chinese food at that visit. In my opinion, Mr. Brydon is mistaken wherever his evidence conflicts with the plaintiff’s testimony concerning their first visit to Stella at the hospital. The plaintiff knew Stella far better, and would be better able to gauge the degree of her upset about the pending sale of the Vine Street property. Also, the defendants have presented evidence from four persons who say that Stella was very upset, when she found out that the property had been put up for sale. Finally, Mr. Brydon may have confabulated parts of events which occurred during a later visit, with respect to Stella’s statements about a stalker and the delivery of Chinese food. Alternatively, Stella may have spoken about these things when the plaintiff was out of the room.

[115] I thought it seemed unusual when, after the plaintiff had been unable to make telephone contact with Stella in September and October, 2004, she did not just go to Stella’s house to see her. But on reflection, I accept her explanation, which was to the effect that she was busy, she did not know that Stella was sick and she did not then perceive that Mary wanted to prevent her from seeing Stella.

[116] It was suggested that the plaintiff’s failure to do more than give advice to Stella, and discuss the matter with her mother and her husband, after Stella made the complaints to her about Mary (in August, 2004), was conduct inconsistent with the truth of her version of events. I do not agree with this submission, because I accept the plaintiff’s explanation that she did not know what else to do, at the time.

[117] I find that the plaintiff’s evidence concerning Stella’s complaints to her about Mary in August, 2004, is confirmed by the complaints that Stella admittedly made to Dr. Risling about Mary on September 30, 2004. I further find that the plaintiff’s evidence that the money Stella had given to her over the years was a gift, and not a loan, is confirmed by Stella’s own account books. It is apparent that Stella used a much different method to keep track of money that she had given to other persons in her family and extended family, which were obviously loans.

[118] On the issue of the alleged deterioration in the relationship between Stella and the plaintiff, I find little if any support for the defendants’ case, in the evidence of Judith Marchesi or Janet Rattray-Matthews. In my opinion, their testimony is not inconsistent with or contradictory of the testimony of the plaintiff.

[119] Finally, I received the impression that the plaintiff had a good memory for the events in question and that she gave the appearance while in the witness box, of a person who was doing her best to tell the truth. Moreover, I thought the plaintiff spoke fairly and frankly at the end of her cross examination, when she admitted that she first believed Mary had forced Stella to change her will, and that it was only later when she questioned whether Stella was mentally competent. The plaintiff expressed her opinion that she did not think Stella was mentally competent, but seemed to concede that if she was, then the changes made by Stella would be acceptable.

[120] In the result, I find that the plaintiff was a credible witness. That does not necessarily mean, however, that I will automatically accept the plaintiff’s version on every fact issue.

The credibility of Demetrios (Jim) Malamas, Mary Malamas, Strato Malamas and Dennis Baxevanidis

[121] Some of the facts which have the potential to weaken credibility are common to two or more of Jim Malamas, Mary Malamas, Strato Malamas and Dennis Baxevanidis. I find these facts to be as follows:

(a) None of them told the plaintiff that Stella had been taken to hospital, that Stella had been diagnosed with leukemia and did not have long to live, that Stella had made the several bank transactions on October 12, that Stella had transferred a joint interest in her house and land to Mary on October 13, that Stella had instructed Brian Gregory on October 13 that she wanted to change her will, or that Stella had executed a new will on October 19, 2004.

(b) The said three persons, and Dennis Baxevanidis, failed to tell the plaintiff that Stella was very upset by the fact that the plaintiff had put the Vine Street property up for sale and that Stella apparently believed that the plaintiff had promised not to do so.

(c) None of the said four persons gave any adequate explanation for the failure to inform the plaintiff about any of these matters. Their implied explanation seemed to be that it was none of the plaintiff’s business, or (with respect to Stella’s upset over the sale of the Vine Street property) that it would be futile to ask the plaintiff not to sell the Vine Street property.

(d) The defendants and Strato Malamas failed to ask Stella’s doctors if she was competent to execute a transfer of land or to execute a will. The only explanation implicit in their evidence is that none of them even suspected that Stella might not be mentally competent and so they believed it was not necessary to consult any doctor.

(e) I find an improbability in the evidence given by Mary, Jim Malamas and Strato Malamas to the effect that Stella had made a complaint that the plaintiff only visited her when she wanted money. These alleged complaints were said to be fairly recent (certainly not more than a year or two before Stella died), yet there is no evidence whatever that Stella gave the plaintiff money of any significant amount after she and Margaret transferred the Vine Street property to the plaintiff in 1995.

(f) I find it highly improbable that Mary, Jim Malamas and Strato Malamas did not know that Stella was experiencing psychotic delusions during the period from October 8, to 25, 2004, or that she was receiving anti-psychotic medication for schizophrenia during that time. Mary was at the hospital every day, Strato Malamas was there almost every day and Jim Malamas made a number of visits and says he kept in regular contact with Stella by telephone. Stella had numerous doctors and caregivers, and these persons (particularly Mary and Strato) must have had considerable contact with them. Moreover, Stella was receiving anti-psychotic medication on a regular basis, and they knew that Stella had refused to take any kind of treatment for leukemia (presumably including medication). I do not recall any witness stating that he or she believed that Stella was being forced to take medication against her will as treatment for leukemia (although this may be implicit from their common evidence that they believed Stella was committed to VGH on both October 8 and October 12, because she was refusing treatment for leukemia).

(g) Mary and Strato Malamas testified that they did not know Stella had made a previous will (which implies they did not know that Stella had always intended to transfer her house to the plaintiff when she died). But Jim Malamas testified to the effect that Stella had long intended to leave her house to the plaintiff when she died, and that this was a fact well known in “the family.” I find it highly improbable that Jim Malamas would know these things, yet his mother and brother (particularly his mother) would not know about them.

(h) Mary and Strato Malamas testified that, at the hospital (on a date which I find to be October 13, 2004), Stella talked only about transferring her house to Mary, and said nothing about wanting to make a new will. But Jim Malamas testified in substance that Stella said only that she wanted to make a new will, and said nothing about wanting to transfer her house and land. There does not appear to be any obvious explanation for this inconsistency.

(i) Mary and Strato Malamas denied knowing that Stella had schizophrenia, until some time in October, 2004, after she was in the hospital. Jim Malamas testified on examination for discovery that he knew Stella had schizophrenia for some 30 years, and believed that she was taking medication at home as treatment for it. At trial, Jim Malamas testified that he only learned that Stella had schizophrenia (with psychotic delusions) in the spring of 2004, when Stella was under treatment at U.B.C. Hospital. Although there appears to be a self contradiction in Jim Malamas’ evidence, I still think it would be improbable that he would know these things long before October, 2004, but his mother and brother would not.

Mary Malamas

[122] As to matters relating specifically to Mary’s credibility, I would first note that on examination for discovery, Mary testified that she did not know why Stella was taken to U.B.C. Hospital (in March, 2004) and that she did not know that Stella had a mental illness until “near the end,” shortly before Stella died. That evidence seemed inconsistent with her trial testimony that a lady at U.B.C. Hospital had told her that Stella has schizophrenia (although Mary said she did not know what that meant). As I see it, Mary’s assertion on discovery that she had no knowledge of Stella’s mental illness until shortly before Stella died, is inconsistent with her trial testimony to the effect that she and Stella had a very close relationship for many years. Also, her disclaimer of previous knowledge that Stella had a mental illness seems highly improbable in light of Jim Malamas’ evidence (on discovery) that he knew Stella had been having problems with schizophrenia for about 30 years, and that this fact was well known in the family; and his trial testimony that he had witnessed Stella having psychotic delusions while visiting her at U.B.C. Hospital.

[123] Mary testified that she never knew that Stella had previously made a will. This implied that she had no knowledge that Stella had always intended to leave her house to the plaintiff when she died. As mentioned, this evidence is inconsistent with Jim Malamas’ testimony that Stella’s intentions in this regard were well known in the family. But in addition, it seems to me that her son’s evidence on this point is inconsistent with Mary’s assertion that she and Stella had a very close relationship for many years before Stella’s death.

[124] Finally, Mary’s evidence to the effect that she did not know that Stella was making a will when the notary public came to see her at the hospital the second time, seems improbable, as the evidence suggests that she was present on October 13, when Stella gave Mr. Gregory instructions to prepare a new will. Mary’s evidence in this regard also seems inconsistent with the evidence of Strato Malamas, to the effect that Stella had told him in about 2002, that when she died she was going to give her house to his mother. I find it highly improbable that, if Stella had said this to Strato, she would not tell Mary. Mary denies knowing that Stella intended to do this, before October 13, 2004.

Strato Malamas

[125] As to potential anti-credibility facts relating to Strato Malamas alone, I begin with the obvious finding that he effectively told Mr. Gregory that Stella wanted to transfer her house and that she was mentally competent to make a land transfer. He did not tell Mr. Gregory that Stella wanted to make a will, which is inconsistent with the evidence of Jim Malamas that Stella had said she wanted to make a new will, but had not mentioned anything about a land transfer.

[126] Only Strato Malamas claimed that Stella made a statement to the effect that the plaintiff and her mother had already gotten enough from her. Mary and Jim Malamas were present on October 13 when Stella made the alleged statements which led to Strato Malamas retaining Brian Gregory. Yet neither of them testified to hearing Stella make that statement.

[127] It seems improbable that Strato Malamas would write down a note about Stella being upset over the Vine Street property being put up for sale, but would not make any note of statements allegedly made by Stella at the hospital concerning disposition of her property and cutting the plaintiff and her mother out of her will. No explanation was offered by him.

[128] Strato Malamas admitted in his testimony that, by October 12, at the latest, he knew that Stella had both leukemia and schizophrenia, and he definitely knew by then that Stella had been committed to VGH twice, against her will, under the Mental Health Act (although he said he believed that was because Stella had refused treatment for leukemia). Yet the next day, he failed to tell Mr. Gregory anything about Stella’s schizophrenia and involuntary committals. His explanation for not doing so appears to be that he believed Stella was perfectly fine, so that there was no need to tell Mr. Gregory about any of these things.

[129] I detected a significant change by Strato Malamas in his evidence when he said firstly, that he and Mr. Gregory had not discussed Stella’s mental capacity at all, then he said, “I am not sure,” and finally said, in effect, that he would accept what Mr. Gregory said on the subject. In a case like this I consider that the issue of mental competency is crucial, and that a discussion about it in this context is not the kind of thing that a person is likely to forget. I think this is particularly so when the person involved is an intelligent, sophisticated businessman, such as Strato Malamas. I do not accept his evidence that he did not know whether or not he and Mr. Gregory had discussed Stella’s mental competency.

[130] Near the end of his cross examination, it was suggested to Strato Malamas that he knew Stella had made a previous will in which she gave her house to the plaintiff, and his answer was: “I am not sure.” This seemed to contradict his earlier evidence when he said that he had no knowledge of Stella having made a previous will.

[131] A number of the answers given by Strato Malamas gave me the impression that he was reluctant to commit to an unequivocal answer without knowing that it would not be contradicted by some other evidence in the case.

Jim Malamas

[132] There are a few matters which relate specifically to the credibility of Jim Malamas. The first point to note is his testimony that, before Strato set out to find a lawyer for Stella, she had only mentioned that she wanted to make a new will, but had not mentioned wanting to transfer her house to Mary. His evidence on that point was contradicted by Strato Malamas (and to some extent, by Mary).

[133] Jim Malamas testified that he could not recall speaking to Mr. Gregory by telephone on October 20, telling him that Stella wanted to make changes to the will she had just executed, and asking Mr. Gregory to email the will to him so he could make the changes desired by Stella. On this point, he said he would defer to Mr. Gregory’s evidence, and Mr. Gregory testified that Jim Malamas did contact him and did make the statements just described. Jim Malamas further testified that he remembered speaking to the plaintiff about setting up a family meeting with Dr. Buskard, but he said he could not recall making the statements to the plaintiff as she claims. I think the subject matter of both of these conversations is not the kind of thing that a person is likely to forget about, particularly a person of Jim Malamas’ obvious intelligence. I am unable to accept his evidence that he could not recall whether he made these statements, or not.

[134] Jim Malamas admittedly called Gloria Amirault on October 28, 2004, and asked her opinion about the legality of Stella’s will. He explained that he did this because, as Stella’s executor, he wanted to accomplish the things Stella wanted him to do. He further explained (on cross examination) that he was not worried about the validity of Stella’s will, he just wanted to know the test for legal capacity, and alluded to a statement allegedly made by the plaintiff to the effect that “Stella is nuts.”

[135] I think the plaintiff could understandably have made a similar comment after her visit with Stella on October 24 (but that was several days later), when Stella refused to accept her medication in graphic fashion. I am hesitant to accept Jim Malamas’ explanation for making this inquiry of one of Stella’s psychiatric nurses, but I am not prepared to reject it as being false. I find that this inquiry has been neutralized by his explanation. I infer that, by that date (October, 28), the plaintiff had heard something about changes being made by Stella, and was questioning them. So it would not be unusual for the defendants to search for confirmation of what they say they believed all along.

[136] I considered Jim Malamas to be the most forthright of the four family members called by the defendants. But, as with Mary and Strato Malamas, I find there are significant weaknesses in his credibility.

Dennis Baxevanidis

[137] Dennis Baxevanidis was not nearly as connected with the events between October 8 and 25, 2004, as were Mary, Strato Malamas and Jim Malamas. Nevertheless, he gave evidence relating to Stella’s relationship with the plaintiff, Stella’s apparent mental capacity and Stella’s upset upon learning that the plaintiff had put her house up for sale. He also testified that, immediately after the plaintiff and her children had come out of Stella’s hospital room one day from a visit, he went in and Stella referred to the plaintiff (in Greek) as being “a bitch.” He also testified that he wanted Stella to renounce as executrix of his mother’s will, not because of concerns about her mental capacity, but because he believed Stella would be influenced too much by his sister Agappi.

[138] I have mentioned some of the problems I detect with Mr. Baxevanidis’ evidence, in previous paragraphs. I would also mention that I thought he was unreasonably reluctant to admit the obvious fact that he was very disappointed in what he received from his mother Margaret in her lifetime and in her will. He seemed to deeply resent the fact that Margaret had conveyed her one-half interest in the Vine Street property to the plaintiff, because that had reduced the residue of her estate for disposition under her will. He also seemed quite defensive about commencing a lawsuit to challenge the dispositions made in his mother’s will, when such challenges are common place and generally do not justify criticism. My impression was that, in most instances. Mr. Baxevanidis was forthright and was attempting to tell the truth as he believed it to be. Nevertheless, in light of the matters I have mentioned, I conclude there are significant weaknesses in the credibility of Mr. Baxevanidis.

[139] My conclusion with respect to the credibility of Mary, Jim Malamas, Strato Malamas and Dennis Baxevanidis is that I should not accept their testimony on material points where it conflicts with the testimony of the plaintiff or another witness, or where it is inconsistent with documentary evidence, unless I find that their evidence is confirmed by other evidence. With this conclusion in mind, I must attempt to make further findings of fact.

[140] It would have been preferable for Agappi Kennel to have been called as a witness, and her absence was unexplained. However, this matter was not mentioned by either side, and I draw no inference of any kind from the failure to call her.

Findings of fact consequent upon my conclusions as to credibility

[141] I must next decide which, if any, of the alleged but disputed suspicious circumstances have been proved. The plaintiff bears the onus of proof on this issue.

[142] As I have mentioned, only four of the circumstances alleged by the plaintiff (as set out in sub-paragraphs (a) to (l) of paragraph 52 herein) are disputed by the defendants. Those contested allegations are:

(a) That the defendants knew (or ought to have known) that Stella was experiencing psychotic delusions during the period from October 8 to 25, 2004;

(b) That the plaintiff’s relationship with Stella remained strong up to October 2004; and

(c) That Stella made complaints about Mary to the plaintiff in August 2004 to the effect that Mary was pressuring her to change her will and that Mary wanted to move in with Stella (and that Stella telephoned Mary and said she did not want Mary to move in with her).

(d) That Mary and Jim Malamas made angry statements to the plaintiff by telephone on October 21, 2004.

[143] As to the denial by the defendants that they knew that Stella was experiencing psychotic delusions between October 8 and October 25, 2004, I am sceptical of the evidence of Mary, Jim Malamas and Strato Malamas that they did not know this. In my opinion, the evidence given by Debbie Cheang and Brian Gregory confirms only that, for limited periods of time on October 12, 13 and 19, 2004, Stella appeared to know what she wanted to do, and to understand and approve what she did do. I am not persuaded that the evidence of these two witnesses confirms the testimony of Mary, Jim Malamas or Strato Malamas to the effect that they believed Stella was mentally competent at all times. Debbie Cheang knew nothing about Stella’s two recent committals or her leukemia. Mr. Gregory knew of the leukemia, but not the committals or psychiatric history, and stated that, if he had known anything about Stella’s history of mental disorder, or her committals to hospital under the Mental Health Act, he would have refused to proceed with any transaction until after Mary and Strato Malamas had obtained a letter from a doctor stating the opinion that Stella was mentally competent. None of the facts known by the defendants and Strato Malamas concerning Stella’s mental condition were conveyed to Mr. Gregory. Moreover, Strato Malamas told Mr. Gregory, in effect, that Stella was mentally competent. While I accept that Mr. Gregory did believe that Stella had sufficient mental capacity, he did not make the careful inquiry that he would have made, had he known the true situation, even the things admittedly known by the defendants and Strato Malamas.

[144] I am not satisfied that the defendants and Strato Malamas did not know that Stella was having psychotic delusions in October 2004. However, in all of the circumstances, including their denials, and the denial of Dennis Baxevanidis, I am unable to find on the balance of probabilities that they did know. At the end of the trial, there was no doubt (and it was conceded by counsel for the defendants) that Stella had been experiencing insane delusions during October 2004 and was being treated for her mental illness. My conclusion is that the defendants and Strato Malamas were reckless as to whether Stella was suffering delusions during this time, and as to whether she was receiving anti-psychotic medication while in hospital in October 2004. As to Dennis Baxevanidis, it seems to me that he ought to have known, but because of his much lesser involvement I am hesitant to make even that finding.

[145] The defendants denied that the plaintiff’s relationship with Stella remained strong up to October 2004, and alleged that the relationship had deteriorated in the year or two before Stella’s death, and that Stella blamed the plaintiff for this change in their relationship. I reject that evidence, and I accept the evidence of the plaintiff that her relationship with Stella remained strong, notwithstanding the reduction in their face-to-face contact. I do not accept the evidence to the effect that Stella made complaints that the plaintiff only came to see her when she wanted money.

[146] The defendants deny that Stella complained to the plaintiff about Mary’s conduct, and telephoned Mary and told her not to move into Stella’s house in August 2004. In my opinion, the statements admittedly made by Stella to Dr. Risling and Margaret McAnerin on September 30, 2004 confirm the plaintiff’s testimony to a significant extent. I accept the plaintiff’s testimony as to her meeting and conversation with Stella in August 2004. I also find that Stella did telephone Mary and tell her not to move in with her (and I reject Mary’s evidence on this point).

[147] I reject the denials of Mary and Jim Malamas as to the telephone conversations they had with the plaintiff. I find that they did make the statements attributed to them by the plaintiff. I do not accept Mary’s evidence to the effect that Stella told her (at the hospital on an unstated date in October, 2004) that the plaintiff had asked Stella to give her house to her (the plaintiff).

[148] It will be apparent that I accept that the testimony of the plaintiff (which was challenged by the defendants), proves the facts set out in paragraph 55(a) to (e) of these reasons.

[149] The defendants did not dispute the existence of the other circumstances which I have set out in paragraph 52. But they argued that these circumstances were adequately explained, so that none of them amounted to suspicious circumstances, apart from the facts that Stella was suffering from schizophrenia and acute leukemia.

[150] The defendants acknowledge that they did not tell the plaintiff that Stella had been taken to hospital in October 2004, or that she had leukemia, or that she did not have long to live. Strato Malamas admitted that he told Mr. Gregory that Stella was mentally competent and that he did not tell Mr. Gregory that Stella had been committed to hospital under the Mental Health Act. It was also admitted that the defendants and Strato Malamas failed to ask any of Stella’s doctors for their opinion as to Stella’s mental capacity. The explanations for all of this conduct were either non-existent or inadequate, and I reject them. Although I am sceptical of the explanation given by Jim Malamas for calling psychiatric nurse Gloria Amerault on October 28, 2004, I do not reject it, and I find that it neutralizes the suspicion of guilty knowledge that could have been created by his inquiry.

[151] I have found that Stella made the statements to the plaintiff in August 2004, as described by the plaintiff. There were also the statements admittedly made by Stella to her regular psychiatrist on September 30, 2004, and to a different doctor on October 9, 2004 at VGH. Counsel for the defendants takes a similar approach to the reliability of all of these statements made by Stella.

[152] In August 2004, Stella told the plaintiff (in summary) that Mary was pressuring her to change her will, that Mary wanted to move into Stella’s house but Stella did not want her to, and that Mary had made her evict her tenant. On September 30, 2004, Stella complained to her psychiatrist in substance that Mary had moved in with her, had made her move into the basement and change her family doctor, was taking control of everything and was making all sorts of decisions for her. The defendants say that Stella’s complaints to the plaintiff and to her psychiatrist about Mary (assuming they were made), were false. The defendants point to the evidence of the several witnesses who testified that Stella was living in the main floor of the house, and not in the basement, which they say contradicts any inference to be drawn from the fact that Dr. Risling and Margaret McAnerin found Stella doing bookwork in the basement on October 8, 2004. They also rely on the cards given by Stella to Mary on July 17 and 18, and October 17, 2004, which contain strong expressions of love and gratitude. Mr. Lee further noted that Stella had changed back to her former doctor, by early October.

[153] I find that Stella’s complaints to Dr. Risling on September 30, 2004, to the effect that Mary had made her move into the basement and had made her change her family doctor have not been proved to be true. I find that Stella’s statement that Mary was making many “decisions” for her, was probably true, but I see nothing sinister in this since Mary was then caring for Stella. As to Stella’s complaints to the plaintiff in August 2004 (that Mary was pressuring her to change her will in favour of Mary, and had given Stella instructions as to the changes that should be made), I am not persuaded that these statements made by Stella are proved to be true. I am satisfied that Stella’s complaint that Mary actually evicted Judith Marchesi, was false. It may well be that Stella believed all of her said statements were true at the time she made them, because there is nothing in the evidence to suggest that Stella had previously made statements that she knew to be false. The affectionate cards Stella gave to Mary on July 17 and 18, 2004 seem genuine and they indicate that Stella also believed the statements she wrote in those cards. It is possible that Mary began pressuring Stella to change her will, after Stella gave her those cards in July and before Stella made her statements to the plaintiff in August 2004. However, Stella did not later repeat the complaint (about Mary pressuring her to change her will) to Dr. Risling at the end of September. Then on October 17, 2004 she gave Mary two more cards expressing love and gratitude, and again, the statements made by Stella in these cards seemed genuine. There were obvious and significant changes in Stella’s expressed feelings about Mary during this time period. But in my opinion, Stella said nothing which indicated she had doubt about the truth of the facts she was stating. I find that Stella did believe that the statements she made were true, when she made them.

[154] Stella’s statement at VGH on October 9, 2004, namely, “If I am going to die, I am prepared. My will is done and affairs are in order”, if she believed it was true, is a strong statement that she has done all that she had wanted to do with respect to the distribution of her assets. Again, there is nothing to suggest that Stella did not honestly believe in the truth of these statements when she made them, and I find that she did so believe. But her actions just days later on October 12, 13 and 19 are contradictory of the statements she made on October 9, 2004. These facts show vacillation on a fundamental issue, and suggest that Stella’s mind was in turmoil from about mid-July until late October 2004. When she made her statements at the hospital on October 9, Stella had already been told she had leukemia and that she did not have long to live. She had also let it be known that she did not want to be treated for leukemia (at least not by any aggressive methods). But, she later denied her condition, on several occasions. Because of these facts, I am unable to accept the defendants’ contention that Stella realized she was facing imminent death and that this was a significant factor which caused her to carefully reconsider the distribution of her property, after October 9.

[155] Although the plaintiff has failed to prove that Stella’s complaints to her and to Dr. Risling about Mary were true, in my opinion that failure does not prevent Stella’s statements in August 2004 and on September 30, 2004, from being suspicious circumstances. I have found that Stella believed in the truth of her statements at the time she made them, and I think her several erroneous beliefs are themselves a circumstance which tends to call into question her testamentary capacity.

[156] As to Stella’s statement at VGH on October 9, 2004, in my view, this constitutes a significant suspicious circumstance. It cries out for an explanation as to why she would suddenly act in such a contradictory way, beginning a few days later on October 12.

[157] As mentioned, I am unable to accept the explanations offered by the defendants (either expressly or implicitly) for why they did not inform the plaintiff about Stella’s illness and hospitalization, or her anger at the plaintiff for putting the Vine Street property up for sale. Nor do I accept the explanations for the failure of Strato Malamas to tell Mr. Gregory what he knew about Stella’s mental condition, or for the failure of the defendants to ask any of Stella’s doctors for their opinion about her mental competency. While I do not find that the defendants deliberately and actively concealed facts which they knew about Stella, from the plaintiff and Mr. Gregory, the suspicion that they did so continues to linger.

[158] My conclusion is that the plaintiff has proved circumstances which create a very strong suspicion that Stella did not possess testamentary capacity at the times of the transactions in question. In my opinion, the defendants must prove that Stella did possess testamentary capacity, to a much higher degree of probability within the civil standard, than a mere 51% probability.

The case for the defendants

[159] To paraphrase the test from Banks v. Goodfellow, the issues in this case require the defendants to prove that no disorder of the mind poisoned Stella’s affections, perverted her sense of right or prevented the exercise of her natural faculties; and that no insane delusion influenced her free will in disposing of her property and brought about a disposal of it which, if her mind had been sound, she would not have made.

[160] Counsel for the defendants advanced the following position (as I understood it):

(a) It was conceded that Stella did experience (and was being treated for) insane delusions during the time she was hospitalized at Vancouver General Hospital between October 8 and October 25, 2004 (but the denial of knowledge on the part of the defendants was maintained).

(b) It was conceded (in the final alternative) that the delusions suffered by Stella made her incapable of making rational decisions as to whether or not she should accept treatment for leukemia, but only on a few occasions which were of relatively short duration (again, denial of knowledge by the defendants is maintained).

(c) Although the psychotic delusions were a contributing cause of Stella’s refusal to accept treatment for leukemia, Stella regained her mental capacity to make rational decisions about whether or not to accept treatment for leukemia.

(d) Stella had lucid periods when she was not suffering from or affected by any delusions, which included the times when she completed the transactions at issue in this law suit.

(e) In the alternative, any delusions that Stella may have been experiencing at the relevant times were not the kind of delusion that, in law, could negate testamentary capacity.

[161] The defendants (and Strato Malamas) allege that they believed, and had good reason to believe, that Stella’s mental capacity was unimpaired at any relevant time. The unstated premise which underlines their evidence is that, if they had suspected any mental impairment, they would have sought and obtained confirmation of her mental capacity by a medical expert, before permitting Stella to carry out the transactions in question. The defendants sought support for their evidence in the considerable body of evidence from numerous witnesses that, in general, Stella had been quite capable of managing, and did manage her own affairs, and did not publicly exhibit any psychotic behaviour over a period of many years, up until late 2003 or early 2004. That fact is undisputed and I accept it.

[162] Next, the defendants rely on their own evidence (and that of Strato Malamas and Dennis Baxevanidis) to establish that Stella spoke and acted in a normal fashion at all times when they were in Stella’s company, between October 8, and October 20, 2004. They rely on the evidence of Debbie Cheang and Brian Gregory to confirm their evidence (and as independent proof) that Stella was acting with normal mental capacity on October 12, 13, and 19, 2004. The defendants further state that the expert opinion evidence of Dr. William MacEwan, psychiatrist, confirms the evidence of all of the lay witnesses and establishes the likelihood that Stella’s testamentary capacity was not adversely affected by her delusions.

[163] As mentioned, I am not prepared to accept the evidence of the defendants, Strato Malamas and Dennis Baxevanidis on disputed matters, in the absence of confirmatory evidence. I accept the evidence of Debbie Cheang and Brian Gregory, to the effect that they believed Stella to be operating at normal mental capacity. But I place little weight on their opinions, for reasons previously stated. In my view, their evidence only confirms the truth of facts that are not in issue, namely, that Stella appeared to know and understand what she wanted to do, and what she was doing; and appeared to understand and approve the contents of all of the documents that she signed.

The expert evidence

[164] This brings me to the testimony of Dr. William MacEwan, the psychiatrist called by the defendants. It appears that counsel retained Dr. MacEwan, after receiving the report of Dr. Roy O’Shaughnessy dated January 23, 2007, from plaintiff’s counsel. Dr. MacEwan prepared a report dated April 11, 2007. The reports of both psychiatrists were filed as Exhibits, and they both testified at the trial. They both made it abundantly clear that their opinions were based on the examination of medical records relating to Stella Sirgianidis in the light of their professional knowledge and experience. The two experts agreed that the value of their opinions was significantly reduced by the fact that they had no opportunity to examine Stella Sirgianidis. I have no hesitation in finding that both Dr. MacEwan and Dr. O’Shaughnessy are eminently qualified to give opinion evidence concerning Stella’s mental capacity to carry out the transactions involved in this case in October 2004, based on their interpretation of the medical records.

[165] In his report, Dr. MacEwan summarizes Stella’s psychiatric history and the onset of leukemia and then expresses opinions (at pages 6 to 10 of his report) which include the following:

(a) The classic symptom of schizophrenia is “that of psychosis which is being out of touch with reality”. (page 6)

(b) A person can be out of touch with reality, both in thought and in behaviour. Hallucinations (seeing and hearing things that do not exist) and delusions (irrational belief in the truth of something that is false) are disorders in thought content. (page 6)

(c) Up to and until July 2003, Stella was able to function at a high level in all main aspects of her life, notwithstanding the occurrence of some short relapses. After a change in her medication, Stella refused to take her anti-psychotic medications and went into a full relapse requiring lengthy hospitalization in March 2004, which was complicated by her grief over the death of her sister Margaret.

(d) In October 2004, “She clearly was in an acute psychotic state of schizophrenia that was caused, at least in part, by her non-adherence to medications.” She had psychotic processes that involved both her thought form and her thought content. She had paranoid delusions about spirits inhabiting her body and believed that she did not have a medical diagnosis of leukemia. Stella’s ability to understand her psychiatric condition and to make informed choices about her psychiatric and medical care fluctuated according to her treatment and her assessment date. The variables within Stella’s psychotic state in October 2004, “involved paranoid themes of whether she can trust her doctors as to her treatment and diagnosis, whether she had a medical illness or not, and consistent past delusional themes of spirits inhabiting her and a stalker trying to do her harm.” (page 8).

(e) “In my review of the medical records stated above I cannot find any clear indication that Ms. Sirgianidis’ delusions had an influence on her testamentary dispositions. While it can be clearly outlined in the medical and psychiatric notes that this lady was suffering from an acute relapse of schizophrenia which involved her having a number of delusions as well as, at times, questionable judgments regarding her medical care, at no time did I find any evidence that she was influenced by her delusions in her interactions with her family or with her personal property.” (page 8)

(f) “I can find no reference to the fact that her relations with her family or other members of her family were, in the short or long term, affected by her psychotic illness.” (pages 8 – 9).

(g) “The medical documentation contains no indication that Ms. Sirgianidis lacked testamentary capacity at the time she gave instructions for, and executed her will in October 2004 or that her delusions interfered with her family relations or affected her testamentary dispositions.” (page 9).

(h) “In summary, after reviewing this case of Ms. Sirgianidis and her testamentary capacity to give instructions and execute a will in October 2004, I do not believe there is any evidence to show that she was unable to do so. Although there is clear evidence that she was having an acute psychotic relapse, there is no evidence that the content of her delusion in any way influenced her will in disposing of her property.” (page 10).

[166] Dr. MacEwan was cross examined at some length by counsel for the plaintiff. He made several admissions which had the potential to affect the strength of his opinion.

[167] Dr. MacEwan agreed that Stella was delusional when first committed to VGH under the Mental Health Act on October 8, 2004, and that she was experiencing very similar delusions when she was committed again on October 12, 2004. He further acknowledged that Stella was suffering similar delusions when assessed by Dr. Drysdale on October 14. Dr. MacEwan agreed that, when Stella was discharged from hospital on October 9, she was still psychotic, although he was unable to say which of her delusions would then have been persisting.

[168] The following exchange occurred between counsel and Dr. MacEwan during cross examination:

Q . . . What if Stella believed that Pam Brydon had made a promise to her, right, and broke that promise and because Pamela had broken that promise she was now changing her will, and the promise was never true, and that fact was never true.

A Ok. If there is a delusional interpretation, sure. I mean, you know – your point I think is that Stella could have a delusion that could influence her will?

Q Right.

A And that could involve family. That could happen. Yeah, I can’t disagree with that.

[169] Dr. MacEwan was challenged about his use of Dr. John Nash as being a prominent example of a person with schizophrenia who had excellent judgment in spite of his psychosis. At page 9 of his report, Dr. MacEwan had said this:

The most prominent would be Dr. John Nash, who, while in an acute state of paranoid schizophrenia, developed a set of economic theories which would later be highly recognized and would culminate in him being awarded a Nobel Laureate Economics.

[170] Dr. MacEwan acknowledged that Dr. Nash had developed his (later famous) economic theories when he was around 21 years old, but that he was not diagnosed with schizophrenia until he was 30 years of age. Dr. MacEwan stated his opinion that Dr. Nash had the illness of schizophrenia for many years before he was diagnosed. But he accepted that his report was in error in stating that Dr. Nash had developed his theories while in an acute state of paranoid schizophrenia.

[171] Dr. MacEwan acknowledged that Dr. Drysdale’s notes made October 18, 2004 (to the effect that Stella still believes that a man has been stalking her, that the Kitsilano Mental Health team have all been wrong about her psychiatric condition, and that Stella was less delusional today but still paranoid) show that Stella was still delusional on October 18. But in Dr. MacEwan’s opinion, she was much less paranoid on October 18 than she had previously been.

The evidence of Dr. Roy O’Shaughnessy

[172] In his report dated January 23, 2007, Dr. O’Shaughnessy expressed the following essential opinions:

. . . In some rare conditions, people who are delusional and even hallucinating may have such a narrow or circumscribed delusion that it does not affect other aspects of their thought process and judgment. In such circumstances, a person may be considered to be competent to make a will or transfer assets. In the vast majority of individuals with paranoid schizophrenia who are actively hallucinating and expressing the complex delusions described in Ms. Sirgianidis, however, they would be determined to be incompetent given the factors cited above. While no direct questions were posed regarding the specific legal tests to determine competency to make a will, it would be my opinion that it would be highly unlikely that she would have been able to understand the extent of her property and bounty or her natural heirs and who of them she would prefer to share in her estate. . . . In my opinion, it is highly unlikely she was competent to make a will on October 19, 2004 or to transfer property or give instructions to alter her will on October 13, 2004 given the symptoms described in the medical records. (pages 8 - 9)

[173] Before expressing the opinions just described, Dr. O’Shaughnessy outlined the history of Stella’s mental illness as described in the medical records, and summarized the various paranoid delusional beliefs held by Stella, particularly from the summer of 2003 onward. In his opinion, Stella “was delusional in rejecting the diagnosis” of leukemia, and in his view she “maintained denial at the delusional level.” (pages 7 – 8) He further stated:

The psychiatric evaluations that are available clearly document that Ms. Sirgianidis was psychotic with overt hallucinations and delusions at the time she was making her will. (page 7)

What is clear is that her judgment would have been grossly impaired as a result of the hallucinations and delusions as well as the disturbance in thought functioning that one would expect to see in a paranoid schizophrenia illness that was inadequately treated at the time. (page 8)

[174] On the issue of whether Stella was vulnerable to influence by other persons, Dr. O’Shaughnessy gave the following opinions:

Further it is likely that she would have been easily influenced by others around her at the time, especially if they supported her delusional beliefs that she did not have a psychiatric illness and that she did not need any anti-psychotic medications or that she did not have a serious medical illness such as leukemia. . . .

In my view, it is likely that she would have been easily influenced by those immediately around her given the severity of her psychosis. (page 8).

[175] Dr. O’Shaughnessy was cross examined at length. Among other things, he gave the following testimony:

(a) He believed Stella’s doctors made a mistake in discharging her from hospital on October 9, 2004.

(b) He doubted that Stella’s mental condition would have changed, while she was absent from the hospital on October 9 to 12, 2004.

(d) In his view, the opinion expressed by Dr. Tesler-Mabe on the evening of October 12, 2004, (to the effect that Stella was capable of making rational decisions about her treatment) was based on incorrect or insufficient information (relying too much on what Stella told him, and not consulting with Stella’s treating doctors), and so he gave the opinion no weight and did not mention it in his report.

(e) Stella’s mental condition was probably worse in the spring of 2004 than it was in October 2004.

(f) Psychotic delusions are usually accompanied by an impairment of thought processes, which can prevent a person from thinking logically and from making logical connections between thoughts.

(g) It is possible that Stella was mentally competent to transfer property and to change her will, but it is not probable.

(h) He cannot say whether or not Stella’s decision to make another will was based on rational reasons.

(i) Having been committed to hospital under the Mental Health Act, Stella should have been specifically tested for mental competency to make a will, before allowing her to do so.

Rebuttal evidence of Dr. MacEwan

[176] In the opinion of Dr. MacEwan, there was insufficient evidence in the medical records to permit the giving of an opinion as to whether any family members exerted undue influence on Stella. Accordingly, he disagreed with Dr. O’Shaughnessy’s opinion on that point, stating:

People with psychosis are not, because of the psychosis, easily influenced to follow the advice or logic of others. That is why they need to be treated in hospitals against their will. To believe that Ms. Sirgianidis’ judgment regarding her testamentary capacity was altered because she had psychosis is not supported by the facts of her presentation at the time she gave instructions and executed her will or by the history and course of her schizophrenia illness. (pages 9 – 10 of his report).

Assessment of the expert opinion evidence

[177] Essentially, Dr. MacEwan and Dr. O’Shaughnessy reviewed the same documentary material. They agree that Stella was suffering from paranoid schizophrenia, and that she was having psychotic episodes from October 8, 2004 until about the time she died. In Dr. MacEwan’s opinion, there were times after October 8 when Stella was able to accept, and did accept that she had leukemia and did not have long to live and could make rational decisions about her treatment. But Dr. MacEwan acknowledged that her capacity in this regard appeared to vacillate back and forth. On the other hand, Dr. O’Shaughnessy was of the opinion that Stella never did come to accept the severity of her condition, or attain the capacity to make rational decisions about her treatment.

[178] The evidence presented by the defendants, combined with the opinion of Dr. MacEwan on this point, lead me to conclude that there were times between October 8, and the time of her death when Stella did appreciate that she had leukemia and did not have long to live, particularly if she refused treatment for it. But the two doctors agree that any refusal of treatment by Stella for her leukemia, which was based on her false belief that she did not have this disease, was psychotic behaviour.

[179] I am inclined to agree with Dr. O’Shaughnessy’s opinion that it was probably a mistake on the part of the medical care givers to discharge Stella from the hospital on October 9.

[180] Dr. MacEwan expressed his core opinion in negative, rather than in positive terms. With respect to testamentary capacity, Dr. MacEwan says, in effect, that the information provided in the medical records relating to Stella’s psychiatric condition does not support the conclusion that Stella’s psychotic delusions had any influence on her free will in disposing of her property in October, 2004. In putting it another way, Dr. MacEwan said, in effect, that in his opinion, there was no evidence to show that Stella did not have testamentary capacity. I think this is significant, having regard to the questions Dr. MacEwan was initially asked to address by counsel (which are outlined at page 1 of his report) which included:

5. …what is the likelihood that Ms. Sirgianidis’ delusions affected her relations with the plaintiff, Ms. Malamas, and other members of her family?

6. Is it possible or likely that Ms. Sirgianidis had testamentary capacity at the time she gave instructions for and executed her will in October, 2004?

[181] For the defendants, Mr. Lee argued that Dr. MacEwan’s opinion should be interpreted to mean that he is stating that it is more probable than not that Stella did have testamentary capacity at the relevant times. In the alternative, Mr. Lee said he would seek leave to recall Dr. MacEwan to express his opinion in positive terms. On behalf of the plaintiff, Mr. Hamilton took the position that it may be open to the court to interpret Dr. MacEwan’s opinion as contended for by Mr. Lee, but did not concede that the court should do so. Mr. Hamilton stated that he would oppose any application to re-open so as to recall Dr. MacEwan.

[182] I would not accede to Mr. Lee’s submission as to the interpretation of Dr. MacEwan’s opinion. As I see it, there is a very great difference in saying “there is no evidence that Stella did not have testamentary capacity,” and “it is more probable than not that Stella did have testamentary capacity.” Nor would I entertain an application to recall Dr. MacEwan on this issue. Having expressed his opinion in negative terms repeatedly, I cannot imagine how he could be expected to strengthen his opinion to the extent suggested by Mr. Lee. Moreover, if Dr. MacEwan was recalled, and did express the opinion predicted by Mr. Lee, then I think it would be difficult for him to survive a challenge to the credibility of such an opinion.

[183] I accept Dr. O’Shaughnessy’s opinion with respect to testamentary capacity, to this extent: I find that the information contained in the medical records does not support the conclusion that Stella was competent to transfer property or to give instructions to alter her will on October 13, 2004, or that she was competent to make a will on October 19, 2004; and I find that the symptoms detected in Stella in October, 2004 (as described in the medical records) are more consistent with the conclusion that she did not have the required mental competence, than the conclusion that she did have such competence. I would extend this conclusion to include Stella’s mental competency to complete the bank transactions on October 12. I make these findings, because of the facts that neither of the two experts had an opportunity to examine Stella, and both agreed that the absence of such examination placed a significant limitation on the value of their opinions. In addition, it appears that Dr. O’Shaughnessy assumed that there was no evidence of any reason which had the potential to rationally explain Stella’s actions. Of course, he had not been informed of, nor asked to comment on, the evidence that existed on that issue.

[184] On the issue of undue influence, I find no assistance in the opinion evidence given by the experts. To my mind, it is only common sense to conclude that Stella would have been more vulnerable to influence by persons close to her, by reason of her psychosis compounded by her untreated, terminal leukemia. I accept Dr. MacEwan’s view that the mere existence of psychosis does not mean that the person will be easily influenced to follow the advice or logic of other persons. But Dr. O’Shaughnessy speaks in terms of the severity of Stella’s psychosis (not merely its existence) which I would not discount as having the potential to increase vulnerability. But, quite properly in my view, neither of the experts attempted to give any opinion as to whether Stella was influenced by anyone, in making dispositions of her property.

Have the defendants met their burden of proof?

[185] The defendants must prove that no psychotic delusion being experienced by Stella in October, 2004, caused her (in whole or in part) to give instructions for the preparation of a new will on October 13, or to execute a new will on October 19, 2004. The evidence establishes that Stella was having obvious psychotic delusions on October 8, October 12, October 14, and October 18, 2004. A new feature of Stella’s “stalker” delusion (related to Gloria Amirault on October 14) was that the stalker had instigated her two involuntary committals to hospital. The two psychiatric experts agree that Stella was experiencing psychotic delusions during the period from October 8, to 21, 2004 (or perhaps later than this). But they disagree about whether any psychotic delusion influenced Stella’s decisions to carry out the transactions that are challenged by the plaintiff.

[186] The defendants deny any knowledge that Stella was experiencing psychotic delusions at any time in October 2004. They go further, and say that they were not aware of any reason that should have caused them to suspect that Stella might not be competent to complete the transactions in question. In addition, the defendants assert that they believed at all material times that Stella did have normal mental capacity to do the things she did in October, 2004. I take it to be an unstated premise underlying the evidence of the defendants and Strato Malamas that if they had thought for a moment that Stella’s mental capacity was impaired, they would not have permitted her to do the things she did without confirmation from a doctor that she was mentally competent. It is also implicit in the evidence of these witnesses that they believed that what (they say) Stella told them, was true.

[187] I have found that the defendants, and Strato Malamas, were reckless as to whether Stella was having psychotic delusions in October 2004. I also find that they were thereby reckless as to whether Stella’s mental capacity was impaired.

[188] I have already rejected one of the four reasons advanced by the defendants (see para. 98 herein) which are alleged to be rational reasons to explain Stella’s sudden decisions to change the distribution of her property, by finding that the plaintiff’s relationship with Stella continued to be strong, right up to August or September of 2004.

[189] The defendants further submit that Stella formed a more close and loving relationship with Mary during the last few years of her life, and as a result, Stella wanted to show her gratitude by giving her money and property to Mary, and wanted to give her house to Mary so that Mary would have a place to live (and so that she could continue to live there).

[190] I reject the evidence of Strato Malamas to the effect that, in or about 2001, Stella told him that, when she died, she was going to leave her house to Mary. I base this on my credibility findings, and several further reasons. First, Mary was much older than Stella and I find it improbable that Stella would expect to die before Mary. Second, if Stella had such an intention, she was the type of person who would have acted quickly to carry out her intentions in such an important matter. Third, Mary testified to the effect that it was not until October 13, 2004, that she knew Stella wanted to transfer her house to her (Mary). Finally, Jim Malamas testified that it was well known in the family that Stella intended to leave her house to the plaintiff, when she died.

[191] Jim Malamas testified that, while she was in hospital in October 2004, Stella told him that she gave her house to Mary “so whoever lives the longest can live in Kitsilano.” I am not satisfied that Stella made this statement, at the time and in the context that he claims. It would make absolutely no sense for her to say it. The defendants allege that by this time, Stella knew she had leukemia and believed that she did not have long to live (perhaps a month). That testimony creates the suspicion that Jim Malamas is searching for a better explanation for why Stella wanted to give her house to Mary, other than Stella’s alleged statement to Strato Malamas (to the effect that she wanted Mary to have a place to live) or her statement to Brian Gregory (that she wanted Mary to have her house to live in after she died). Those statements do not provide any persuasive reason, because Mary owned a house in Surrey where she had previously lived for many years, and Stella knew it.

[192] I accept that the relationship between Stella and Mary had become closer in the last few months of Stella’s life and that Stella expressed her love and gratitude to Mary for all her help, in the cards that she gave to Mary on July 17 and 18 and October 17, 2004. But I am far from being persuaded that this relationship outweighed or took the place of the strong relationship between Stella and the plaintiff, which had persisted for many years. I can accept that, when Stella decided to exclude the plaintiff as her main beneficiary, it would be rational for her to then favour Mary. But the question is whether Stella’s reason for excluding the plaintiff was rational. (It should be noted that no specific reason was advanced, nor any explanation offered, as to why Stella would want to make substantial gifts to Jim Malamas, or why she would exclude other persons whom she had previously favoured in her will.)

[193] The defendants argue that another reason why Stella decided to give her property to Mary was because Stella suddenly decided that she had already given enough to the plaintiff and to the plaintiff’s mother, as evidenced by her alleged statement to Strato Malamas on October 13. Because of my conclusions as to Strato Malamas’ credibility, I am unable to find that Stella made this statement. I would add, as a further reason, the improbability created by the fact that Stella continued to favour the plaintiff as her main beneficiary for many years after she had last given anything of significant value to the plaintiff (namely, her interest in the house on Vine Street in 1995). When taken together with the statements that I find were made to the plaintiff by Mary and Jim Malamas by telephone on October 21, 2004, this alleged statement by Stella sounds more like a suggestion to her by another person that she has already given enough to the plaintiff. I do not make that finding, but I am far from being satisfied that Stella made these sweeping changes, in whole or in part, because she believed that she had already given enough to the plaintiff and her mother. As I have said, I am not even satisfied that Stella made this statement.

[194] The only other reason advanced by the defendants as a rational reason for Stella to suddenly decide to make Mary the main beneficiary of her property in place of the plaintiff, is that Stella was very angry with the plaintiff for putting the Vine Street property up for sale. The thrust of the evidence presented by the defendants on this point is that Stella said that the plaintiff, in effect, promised her that she would never sell the Vine Street property, or that if she ever sold it, she would sell it to a member of the family. The obvious implications of this evidence are that Stella believed that the plaintiff had betrayed her promise to her by putting the property up for sale, and that the defendants (and Strato Malamas and Dennis Baxevanidis) accepted Stella’s belief as being true.

[195] The plaintiff’s evidence of Stella’s statements and behaviour toward her at the hospital on October 20, 2004, confirms the evidence presented by the defendants on this issue to a considerable extent. Accordingly, I find that Stella did make statements to Mary, Strato Malamas, Jim Malamas and Dennis Baxevanidis to the effect that she was angry and upset at the plaintiff because the plaintiff had put the Vine Street property up for sale, in breach of a promise she made to Stella. I find that Stella made these statements to them, in late September or early October, 2004. I also find that, while she was in the hospital, on or about October 20, 2004, Stella spoke to Dennis Baxevanidis and referred to the plaintiff as being a “bitch.”

[196] However, I accept the plaintiff’s evidence that there was never any agreement or understanding between her and Stella (or any promise by her) that the plaintiff would not sell the Vine Street property (or not to anyone outside the family). None of the witnesses called by the defendants claim to have heard of any such agreement or arrangement until late September, 2004. Mr. Macfarlane, the lawyer who had previously done real estate work and prepared wills for Stella, testified that no conditions were attached to the transfer of the Vine Street property to the plaintiff in 1995.

[197] In the result, I find as a fact that Stella’s statements to the effect that the plaintiff had promised not to sell the Vine Street property, and that she had broken that promise, were false. I further find that there was absolutely no basis in reality for Stella to believe that her statements were true, but nevertheless she did believe them to be true. I cannot say with certainty as to when Stella fully accepted the truth of this false and irrational belief, but the evidence suggests that it was after October 9, 2004. I say that because it was on October 9, when Stella said:

If I am going to die, I am prepared. My will is done and affairs are in order.

[198] When Stella made that statement at V.G.H. on October 9, she seemed to accept that she was going to die, and she believed that her final will and affairs had already been attended to. She did not make any complaint about the plaintiff to anyone at the hospital, before being released on October 9. Her subsequent actions on October 12, 13, and 19, contradict these statements that she made on October 9. Moreover, Stella had made complaints about Mary to the plaintiff in August, 2004, and to her psychiatrist on September 30, 2004, but she made no complaints to her care givers about the plaintiff. There appear to be no further complaints about Mary to Stella’s caregivers after September 30. By October 17, when Stella gave the affectionate cards to Mary, her attitude toward Mary appears to have gone through a complete reversal. Yet she had turned against the plaintiff by reason of her putting the Vine Street property house up for sale, as demonstrated by her statements to Mary et al. and by her behaviour toward the plaintiff during the visit of October 20.

[199] I conclude that Stella decided to make radical changes to her long-standing plan for the distribution of her assets, at some point in time between being released from hospital on October 9, and going to the bank on October 12.

[200] I conclude that Stella’s false belief that the plaintiff had promised her that she would not sell the Vine Street property is the only identifiable reason for Stella’s sudden change in distributing her property, which commenced on October 12.

The argument of the defendants as to psychotic delusions

[201] It was submitted on behalf of the defendants that Stella’s false belief (which I have just described) does not meet the criteria for an operative psychotic delusion required by law. Counsel submitted that the psychotic delusions that admittedly were experienced by Stella could not negate testamentary capacity because they did not relate to her knowledge about the extent of her property or about her expected beneficiaries. It was said that Stella’s delusions related only to having a stalker, having spirits inhabiting her body and refusing treatment for leukemia on the ground that she did not have that disease. Ultimately, it was contended that Stella’s belief that the plaintiff had betrayed a promise to her, if it was false, did not amount to a psychotic delusion. Counsel referred me to a number of authorities on this issue and I will refer to some of them.

[202] In Royal Trust Co. v. Ford [1971] S.C.R. 831; 20 D.L.R. (3d) 348, the Supreme Court of Canada allowed an appeal from the British Columbia Court of Appeal. A testator had made a will in 1933 in which he left most of his estate to his son. He made a new will in 1958, which left only a small part of his estate to his son. The son challenged the 1958 will, on the ground that his father had an insane or psychotic delusion that he was not the natural father of his son. The trial judge found that no psychotic delusion had been proved, and that the testator had knowledge of the actual truth, namely, that his son was legitimate. The Court of Appeal held that the trial judge had erred in failing to find that a psychotic delusion existed, and set aside the 1958 will as being invalid.

[203] On appeal, the Supreme Court of Canada restored the trial judgment, and agreed with the trial judge that no insane delusion was shown to exist. At page 359 the court said this:

The propounder of a will must prove by a preponderance of evidence that the testator was competent in every respect, and this includes negativing the existence of any insane delusions. On a consideration of all the evidence and in the light of dealing with an otherwise thoroughly competent testator, the trial judge rejected the contention that a delusion existed. He found that the testator really believed the son to be legitimate even though he expressed doubt. Although the 1933 will was largely in the son’s favour, a separation for 31 years prior to the 1958 will and the reception of bad reports about his son were sufficient reason for a sane testator to change his will. Furthermore, a legacy of $50,000 was inconsistent with a testator having a poisoned mind resulting in the complete rejection of his son, and consistent only with belief in his legitimacy or, at most, doubt. Whether the testator’s suspicions were reasonable or not, they were such as a sane man could hold.

[204] The essential finding of fact in Royal Trust Co. v. Ford was that the testator did not believe that he was not the natural father of his son (and therefore did not believe in the truth of a fact that was proved to be false). The mere expression of doubt as to the truth of a fact (even a fact which is obviously true) could not qualify as a psychotic delusion.

[205] In Skinner v. Farquharson (1902) 32 S.C.R. 58, a testator had made a will which greatly favoured his wife and his son. Seven years later he made a new will, in which he reduced the provisions for his wife and his son. Before executing the later will, the testator had often accused his wife and son of committing incest, but there was no foundation for such an accusation. The testator banished his son from his house and treated his wife with violence. After he made his will, he was placed in a lunatic asylum for a period of time. The testator’s wife and son attacked the later will on the ground that there existed in the mind of the testator an insane delusion that his wife and son had committed incest, and that this delusion was operating on the testator’s mind at the time he made the will.

[206] The trial judge held that the will was valid, and admitted it to probate. The Nova Scotia Court of Appeal set aside the trial judgment and held the will to be invalid. The majority of the Supreme Court of Canada (2:1) allowed the appeal and restored the trial judgment.

[207] Mr. Justice Taschereau was unsure whether the testator’s unfounded belief was an insane delusion. But he assumed that it was, and found that the proponent of the will had proved that the delusion did not influence the testator’s disposition of his property. In the challenged will, the testator had bequeathed to his wife and son a substantial (although reduced) amount of his property, and had made his wife a co-executor and guardian of his children. Taschereau J. was of the opinion that if the delusion was influencing his decision, the testator “would not have given a cent to his wife and to his son.”

[208] Davies J. applied the same reasoning in deciding that the proponents of the later will had proved that the delusion had no influence on the testator’s disposition of his property. Davies J. was prepared to assume that the suspicions of the testator “developed into an unfounded belief which amounted to an insane delusion.”

[209] Sedgewick J. dissented, holding that the testator’s unfounded belief was an insane delusion, and the proponents of the will had failed to prove that the delusion had no effect on the testator’s disposition of his property. Both Sedgewick J. and Davies J. reviewed the leading authorities, including Banks v. Goodfellow. All of the judges agreed that the mere existence of a delusion in the mind of a person making a disposition or contract would not be enough to invalidate a transaction; there would have to be some connection between the delusion and the transaction. It was common ground that the proponents of a will must prove that there is no reasonable connection between the delusion and the bequest in the will, in order to discharge their burden of proof.

[210] Sedgewick J. discussed the definition of an insane delusion, and in doing so made the following statements:

…an insane delusion is defined as to be a belief of things as realities which exist only in the imagination of the patient

. . .

Delusion is insanity where one persistently believes supposed facts (which have no real existence except in his perverted imagination) against all evidence in probability and conducts himself however logically upon the assumption of their existence.

[211] Sedgewick J. went on to hold that the testator’s belief that his wife and son had been guilty of incest:

…had no foundation whatever in fact, but that the unfortunate man’s belief in the existence of the offence as charged by him existed only in his own morbid imagination….

[212] Sedgewick J. rejected the contention of the proponents of the will, that the testator executed his will in a lucid interval. He described a lucid interval in the following way:

…a lucid interval is not the mere absence of the subject of the delusion from the mind. By a lucid interval is not meant a concealment of delusions, but their total absence, their non-existence in all circumstances and a recovery from the disease and a subsequent relapse.

[213] The case of Banton v. Banton et al. (1998) 164 D.L.R. (4^th) 176 was a decision of Mr. Justice Cullity of the Ontario Court (General Division). One of the issues in that case was whether an elderly testator was influenced by an insane delusion when he excluded his children from his will. The reasons given by the testator for not leaving anything to his children were that he had been abused by his sons and that his sons and family were only interested in his money and were not interested in him and had neglected him.

[214] Cullity J. had found that all of these allegations made by the testator about his children’s motives and behaviour were unfounded. He reviewed the authorities (at pages 198-199) including the definition of delusion given by Sedgewick J. in Skinner v. Farquharson. He also cited this definition from an earlier authority (at page 198):

…insane delusions are of two kinds: the belief in things impossible; the belief in things possible, but so improbable, under the surrounding circumstances, that no man of sound mind would give them credit; to which we may add, the carrying to an insane extent impressions not in their nature irrational.

[215] At page 199, Cullity J. made the following statements:

As the second of these passages indicates, “insane” delusions are not limited to beliefs that are so bizarre, that their content, by itself, evidences mental disorder. …such delusions include beliefs whose extreme improbability is apparent only when the surrounding facts are known. These are obviously the more difficult cases. Delusions with respect to the behaviour and attitudes of the deceased’s relatives are relatively common in the reported cases and they often fall into this category. …in all cases where delusions of this kind are alleged to exist there will be a question whether the belief should be characterized merely as quite unreasonable, on the one hand, or as something that, in the particular circumstances, no one “in their senses” could believe….

[216] Cullity J. went on to find that the testator believed his unfounded allegation that his children were not interested in him and were only interested in his money. He then stated:

These beliefs were not only contrary to all the evidence and probabilities: they were in direct conflict with what he must have known if he had not been cognitively impaired. (page 200)

[217] The conclusions of Cullity J. were that the testator’s beliefs were false, that they amounted to an insane delusion and that the proponent of the will had failed to prove on the balance of probabilities that the beliefs had no effect on the dispositions made by the testator. Accordingly, the proponent had failed to discharge the burden of proving testamentary capacity.

[218] In Banks v. Goodfellow (at p.572), the court stated, in part, as follows:

Where delusions are of such a nature as is calculated to influence the testator in making the particular disposition… a jury would not in general be justified in coming to the conclusion that the delusion, still existing, was latent at the time, so as to leave the testator free from any influence arising from it…

[219] In O’Neill v. Brown Estate [1946] S.C.R. 622, Rand, J. expressed the following opinion as to the meaning of “calculated to influence:”

Once there is shown the existence of a delusion which is calculated to influence the testator in making the dispositions of a will, then the court must be convinced that in fact the delusion had no such effect. What then is the test by which we can say that a delusion is so calculated? Obviously its nature and subject matter, and its relation in the mind of the testator to the matters material to testamentary disposition.

Application of the law to the facts found

[220] In my opinion, Stella’s false belief as to the plaintiff breaking a promise not to sell the Vine Street house, meets the definition of “a delusion which is calculated to influence” her dispositions of money and property. There would appear to be an obvious potential for a connection in Stella’s mind between the delusion and her dispositions excluding the plaintiff, which the defendants must negative.

[221] I conclude that Stella’s false belief amounts to an insane (psychotic) delusion within the definition of that term established in the authorities. In this regard, I would also note that Dr. MacEwan testified to the effect that, if Stella held the false belief which I have described, then that could constitute a psychotic delusion.

[222] The final question is whether the defendants have proved on the balance of probabilities that Stella was not influenced by this (or any other) delusion when she gave instructions for her will on October 13, and executed her will on October 19, 2004. I consider the context of her other psychotic delusions from October 8 onward, and her worsening leukemia, to be important. These delusions included the false beliefs that a man was stalking her, that spirits were inhabiting her body and that she did not have leukemia. As to Stella’s denial of having leukemia, it is apparent that her beliefs in this regard vacillated back and forth. In the circumstances of this case, and having regard to the degree of proof required by the suspicious circumstances, it would be difficult for the defendants to show that even Stella’s other historical delusions did not influence the dispositions of her property that she made. Arguably, those delusions alone could create doubt as to whether she was mentally capable of objectively assessing and appreciating the moral claims of the plaintiff. Stella’s false and irrational belief that the plaintiff had promised not to sell the Vine Street property, was superimposed on these pre-existing delusions and her terminal disease.

[223] In demonstrating the dramatic changes in her feelings toward Mary, Stella appears to have forgotten about her complaints to Dr. Risling on September 30 (that Mary was making her live in the basement etc.) and her complaints to the plaintiff in August, 2004 (that Mary was pressuring her to change her will, and that Stella did not want Mary to move in with her). Another possibility is that Stella had knowingly changed her beliefs regarding her previous complaints about Mary, but there is other evidence in the case which suggests that Stella may have forgotten about these things. That was the evidence of Brian Gregory, who testified that he advised Stella she should change her beneficiary designation for her R.R.S.P., but that Stella had told him she did not think that she would have enough time left to do that. However, that was on October 13, and Stella had just changed beneficiaries for her R.R.S.P., the day before, at the bank. There would appear to be no motive for Stella to want to deceive Mr. Gregory on this point, and so it could be inferred that she had forgotten what she had done the day before. That seems to be confirmed to some extent by Stella’s conduct in making bequests of her bank accounts in her will, while failing to tell Mr. Gregory that she had made Mary a joint owner of her bank accounts, the day before. In my view, the radical changes in Stella’s attitude toward Mary in such a short time, and her possible memory lapses, increase the probability that her mental processes were affected by her mental illness continuously, to a significant degree, during the last few months of her life.

[224] The defendants presented evidence which established that, on or about October 16, Stella wrote out a fairly, detailed description of events that occurred between March 18, 2004 and October 16, 2004, which was reasonably accurate. This evidence was designed to show that Stella had some “lucid” periods during the relevant time frame. But the main subject of Stella’s writing was a history of her involuntary committals to hospital, and her complaints about it (particularly the committals on October 8 and 12). She made no mention whatever about the changes she had made (and was making) in the distribution of her assets, or the reasons why she was making these changes. Nor did Stella acknowledge her mental illness, and she even stated “…I was capable in making my own decisions…” I am not satisfied that this evidence establishes that Stella was experiencing a “lucid interval” when she wrote these notes.

[225] The defendants have failed to persuade me that Stella’s delusions did not poison her affections against the plaintiff, nor bring about a disposal of her property which, if Stella’s mind had been sound, would not have been made. I conclude that the defendants have failed to discharge the burden which rests upon them to prove that Stella had testamentary capacity at the relevant times.

The inter vivos gifts

[226] I have earlier referred to several authorities which suggest that the legal test for mental capacity to make a will is similar to the test for mental capacity required to enter into and complete the inter vivos transactions completed by Stella on October 12 and 13, 2004. I would also note that Sedgewick J. in Skinner v. Farquharson made reference to this similarity (with apparent approval) as follows:

…In Jenkins v. Morris, 14 Ch. D. 674, the same principle was applied to a contract inter vivos the rule being that when the existence of an insane delusion is once established the question to be determined is whether it had any, and if any what, influence upon the performance of the act or transaction which for the time being is under consideration. ….

[227] Having decided that the defendants have failed to prove that Stella had testamentary capacity, is that conclusion sufficient to invalidate the bank transactions on October 12, and the land transfer on October 13, 2004? Or should it be presumed that Stella had the mental capacity required to by law to complete those transactions, and require the plaintiff to prove affirmatively that Stella did not have sufficient legal capacity?

[228] It seems to me that the answers to these questions might be found in the rules of law relating to inter vivos gifts. The general rule is that, where a person makes a gift of money or property to some person other than his or her spouse or child, a presumption of resulting trust is created. This presumption casts an onus on the recipient of the gift to rebut the presumption, which may be done by proving that the donor of the gift intended that it should be a gift. See Pecore v. Pecore [2007] 1 S.C.R. 795 at paragraphs 22-26 and 43-44. At paragraph 53, Rothstein J. (speaking for eight members of the Court) stated:

[53] Of course, the presumption of a resulting trust means that it will fall to the surviving joint account holder to prove that the transferor intended to gift the right of survivorship to whatever assets are left in the account to the survivor. Otherwise, the assets will be treated as part of the transferor’s estate to be distributed according to the transferor’s will.

[229] It is apparent that, when Stella made Mary and Jim Malamas joint account holders with her, and made them the beneficiaries of her R.R.S.P.; and when Stella transferred a joint interest in her house and land to Mary, there was no consideration given to her. They were not her spouse or child. Consequently, I think the transactions should be examined in accordance with the rules of law relating to inter vivos gifts. An unusual feature of this case is that Stella purported to deal with her bank accounts and her R.R.S.P. in her will, after already having made gifts of them to Mary and Jim Malamas the previous day (although Jim Malamas did not finalize the bank account transfers to him until October 20). Brian Gregory of course knew that Stella had transferred her land to Mary, and so her real property was not included in the will. But he knew nothing of what Stella had done the previous day and so he drew a will based on her instructions. (As I have mentioned, some of Stella’s statements to Mr. Gregory on October 13, indicate that she may have forgotten some or all of what she did the previous day at the bank.) Stella seemed unaware that there was not much left for her dispose of by will, in light of what she had already done.

[230] As I have previously found, the evidence establishes that Stella appeared to know what she wanted to do in respect of these matters, appeared to know what she was doing, and to approve of what she was doing when she completed all of these transactions. If all the defendants had to do in order to rebut the presumption of resulting trust, was to prove that Stella intended to make gifts to them, they would easily succeed. But I think the issue is much more complex than that in the circumstances of this case, where testamentary capacity has not been established for the same time period which includes these inter vivos transactions. In my opinion, in order to rebut the presumption of resulting trust, the defendants must prove not only that Stella intended to make gifts, but also that her intention in this regard was not affected by any insane delusion. In other words, I think that the defendants must prove the same facts required to establish that Stella had testamentary capacity. This of course, they have failed to do. It is therefore my opinion that the presumption of resulting trust carries the day, and the gratuitous inter vivos gifts must be set aside.

[231] If my analysis of this issue is wrong, I would find (as previously alluded to) that the evidence proves that the main reason why Stella did what she did, was because of her delusion that the plaintiff had broken a promise she made to Stella, not to sell the Vine Street property. That finding leads inevitably to the conclusion that the plaintiff has proved on the balance of probabilities that Stella was not mentally competent at the time of the challenged transactions. In my opinion, the standard of proof that would be required (assuming that the plaintiff bears the onus) is simply, “more probable than not.”

The Second Issue: Did Stella complete the disputed transactions on October 12, 13 and 19, 2004 as a result of undue influence exerted upon her by Mary?

[232] The leading authority on the law of undue influence is Geffen v. Goodman Estate [1991] 2 S.C.R. 353. In order to establish undue influence, the person who alleges it must prove on the balance of probabilities that a testator (or donor) was influenced by another person to such a degree that the testator was coerced into doing what that other person wanted, against the will of the testator. These rules of law are not in dispute. But in this case, the plaintiff alleges that the relationship between Mary and Stella was such that it created the potential for Mary to dominate Stella, and thus raises the presumption that the inter vivos gifts and the will were brought about by undue influence. If the plaintiff is correct, then the defendants would be required to prove on the balance of probabilities that Stella was not induced to make the inter vivos gifts and the will, by undue influence exerted by Mary.

[233] The defendants assert that the relationship between Mary and Stella was not of the kind that is capable of creating the presumption of undue influence. Counsel for the defendants contended in the first instance that it was not enough for the plaintiff to show that the relationship was such that the potential for influence existed. It was argued that some evidence of actual influence had to be presented, before the presumption could be created. In the alternative, counsel for the defendants argued that if the potential for domination existed in the relationship between Mary and Stella, then:

(a) the defendants have succeeded in rebutting that presumption; and

(b) the plaintiff has failed to prove that undue influence was actually exerted by Mary.

[234] Undue influence may be proved by circumstantial evidence. See Araujo v. Neto 2001 BCSC 935, at para. 132. However, proof of facts which only raise a suspicion that a testator was subjected to fraud or undue influence by the proponent of the will, cannot prove fraud or undue influence. See Vout v. Hay at paragraph 28. But if the party challenging the will proves the existence of “suspicious circumstances…tending to show that the free will of the testator was overborne by acts of coercion or fraud,” then the presumption may be created. See Vout v. Hay at paragraph 25. This would appear to be a second possible way in which a challenger could create the presumption of undue influence.

[235] I have already outlined the numerous suspicious circumstances that have been proved by the plaintiff. But most of those circumstances create only the suspicions that Stella’s mental capacity was impaired and that the defendants knew or ought to have known about it. In my opinion, the suspicious circumstances do not raise a presumption of undue influence.

[236] I return to the plaintiff’s contention based on the relationship between Mary and Stella. The relevant principles were reviewed by our Court of Appeal in Ogilvie v. Ogilvie (1998) 49 B.C.L.R. (3d) 277. The main issue on appeal was whether the facts found at trial established a relationship between the parties which was sufficient to raise the presumption of undue influence and to shift the burden to the defendants to disprove it. The Court of Appeal, speaking through Mr. Justice Goldie, reviewed in detail the case of Geffen v. Goodman Estate (in paragraphs 73 through 82). It is apparent that Goldie J.A. concluded that the relationship that could give rise to the presumption need only be one which provides an opportunity for one person to dominate the will of the other. At paragraph 78, Goldie J.A. stated the test in these terms:

[78] …The task to be undertaken by the court is to determine whether there existed in the relationship between donor and donee the potential for influence.

Application of the Law to the Facts

[237] In the present case, Mary and Stella were sisters, they were living together at the relevant time and Mary was older than Stella. Stella was under Mary’s care the whole time when she was not in hospital in October, 2004. Stella was suffering from acute leukemia and schizophrenia. She did not seek or obtain independent legal advice before completing the transactions in question. In these circumstances I find that the relationship between Mary and Stella did carry with it the potential for Mary to influence Stella in the disposition of her property, and so a presumption of undue influence arises.

Have the defendants rebutted the presumption of undue influence?

[238] The only direct evidence that Mary tried to exert undue influence on Stella consists of Stella’s statements to the plaintiff in August 2004, to the effect that Mary was pressuring Stella to change her will. But that evidence could not be evidence of undue influence, unless Stella’s statements about Mary to that effect, were found to be true. Mary has flatly denied doing this. Stella did not repeat this complaint to Dr. Risling when she made other complaints about Mary on September 30, 2004 (although she said Mary was making all sorts of decisions for her). On October 17, 2004, Stella gave Mary two cards in which she expressed love and gratitude. On these facts (as previously stated) I am not satisfied that Stella’s statements to the plaintiff were true, although Stella probably believed that they were true when she made them.

[239] In all of the circumstances, I am persuaded that the defendants have rebutted the presumption of undue influence. In my opinion, the inference that Mary did not exert undue influence on Stella (and thereby induce Stella to complete the disputed transactions) is just as probable as the inference that she did.

[240] I have found that Stella’s delusion about the plaintiff’s promise not to sell the Vine Street property was the reason why Stella made the challenged dispositions of her property. That finding, while it may not preclude a finding of undue influence, seems inconsistent with it.

[241] Undue influence is immoral conduct which is closely related to fraud. The law therefore requires that undue influence be proved to a higher degree of probability than a mere 51%. It will be apparent from my earlier finding that, in my opinion, the plaintiff has failed to independently prove the allegation that Mary exerted actual undue influence on Stella.

Judgment

[242] The plaintiff is entitled to judgment. The bank transactions of October 12, the land transfer of October 13, and the will made October 19, 2004, are set aside as being invalid and of no force or effect. Stella’s will made in July, 1995, is declared valid and will be admitted to probate. Any property that is presently in the name or names of one or both defendants as a result of these transactions must be held in trust by them for the benefit of Stella’s estate.

[243] Stella’s bank accounts and her R.R.S.P. as they existed on October 12, immediately before Stella completed the bank transactions in question, will be distributed according to law. The real property owned by Stella (before she transferred a joint interest to Mary on October 13, 2004) will become part of her estate to be distributed in accordance with her 1995 will.

[244] There should be an accounting required by the defendants for all monies or other property of Stella which has come into their possession or control, but I will leave it to counsel to try to work out the terms of that order. Failing that, there will be liberty to apply.

[245] I think there also should be an order restraining the defendants from any further dealing with the assets at issue in this case without the plaintiff’s consent. Again, counsel should consult as to the form of this order, and there will be liberty to apply.

[246] The counterclaim of the defendants for proof of the October 19, 2004 will in solemn form, is dismissed.

The issue of costs

[247] The plaintiff will have her costs of the action and the counterclaim. I can see no basis for depriving the plaintiff of the costs relating to the claim of undue influence, because much of the evidence on that issue was relevant to or inextricably interwoven with the evidence on the issue of testamentary capacity.

[248] Counsel for the plaintiff submitted that the plaintiff should be awarded special costs, on the ground that there had been reprehensible conduct on the part of the defendants. I understood this submission to be dependent on whether the court made a finding of undue influence against the defendants. I have not made that finding, and in my opinion, the law does not require special costs to be ordered on the ground that evidence has been disbelieved.

[249] There has been no reprehensible conduct by the defendants, in my view. Although the defendants have been unsuccessful, I do not find their attempts to uphold Stella’s October 19, 2004 will were improper. Nor do I detect anything improper in the plaintiff’s allegation of undue influence. Both claims had some foundation in the evidence.

[250] No suggestion was made that the costs of any party should be paid out of Stella’s estate. That being so, I think costs should follow the event, as I have outlined. That will be my order, unless either party applies for further consideration of this issue within 14 days.

_______________________________

D. Halfyard, J.

Citation:	*Brydon v. Malamas,*
	2008 BCSC 749