Appeal court considers which of two conflicting documents reflects true intention of deceased

Court decides which of two promissory notes is valid and enforceable in estate law case

Appeal court considers which of two conflicting documents reflects true intention of deceased

In a recent estate law case, the Court of Appeal for Ontario rejected the appellant’s proposal to introduce fresh evidence.

Middleton Estate v. Middleton, 2020 ONCA 552 involved two promissory notes containing conflicting treatments for a loan agreement between Eva Middleton, the deceased, and Linda Middleton, the appellant and daughter of the deceased. The first note stated that the money loaned to the appellant should be repaid to the estate upon her mother’s death. The second note, dated six days later, said that the loan would be forgiven upon her mother’s death.

The appellant was contending that the second note was more in line with the true agreement between the deceased and herself. She presented a copy of what she claimed was an email from the deceased, stating that the loan would be cleared upon death. The estate trustee therefore filed an application seeking the court’s opinion on which of two promissory notes should be considered valid and enforceable for the purpose of carrying out the intention of the deceased.

Two lawyers testified during the proceedings. The first, Jacob Walinga, said that he prepared the first note for the deceased and never heard the deceased say anything about wanting to forgive the loan. The second, Ken Menlove, said that the deceased deposited certain estate documents with him for safekeeping, including the first note. Menlove said that, based on his discussion with the deceased, he understood that she intended for the loan to be repaid upon her death.

The trial judge, Justice Patrick Hurley of the Ontario Superior Court of Justice, ruled that the testimonies of the lawyers were credible and reliable and that, therefore, only the first note was valid and enforceable. Upon appeal, the Ontario Court of Appeal affirmed the trial judge’s findings that the deceased had not changed her mind about the repayment of the loan, had not received the second note and had not sent the email which the appellant had presented as evidence.

The appellant argued that the court should consider the evidence of Joyce Willard, who witnessed the signing of both notes, in her favor. The appeal court said that, even though Willard had witnessed the signing of both notes, she had not read either. Also, Willard didn’t mention anything about the intention of the deceased to forgive the loan.

As regards the email, the appellant tried to present fresh evidence to support her position, but the appeal court said that the evidence failed to meet the requirements laid out in Sengmueller v. Sengmueller, 1994 CanLII 8711.

The appellant then argued that the deceased may have forgotten to show Menlove the note or may have given him the incorrect instructions. The appeal court also rejected this, stating that the trial judge had already addressed this argument and had cited Menlove’s testimony that he had reviewed and confirmed the contents of the note with the deceased.

The appeal court thus dismissed the appeal for these reasons.

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