The court found audible coaching off-screen and moments of confusion on the part of the testator
The Ontario Superior Court of Justice has considered a video of a will signing ceremony, among other evidence, to support allegations of undue influence and incapacity of the testator.
In Carinci v. Carinci, 2023 ONSC 6094, Steven Carinci challenged his mother's will, alleging undue influence and incapacity. The central question revolved around whether the evidence put forth by Steven met the minimum threshold to raise concerns about his mother's capacity or whether the respondent, Sonya Carinci, exercised undue influence over her mother.
The judge expressed reservations about the strength of Stephen's evidence, stating that "There is much speculation and smoke without fire in the applicant's affidavit. A bruise on the arm, a weird smell one day, and some luxury brand boxes in the garage amount to nothing. None alone or together points to an inference of incapacity or undue influence."
The Ontario Superior Court of Justice said that if Steven's evidence were the only evidence, it likely would have dismissed the claim. However, the court found that Sonya Carinci's evidence provided an ample objective basis to say that the tests for incapacity and undue influence could be met if believed.
The court found that the will cut Steven's share of the mother's multi-million dollar estate from 25 percent, in a prior will, to a specific legacy of $200,000. The court also found that the mother's lawyer kept a video of the will signing ceremony, revealing moments of confusion on the mother's part, with audible coaching off-screen.
The court noted that the mother looked up to her left for help at one point in the video. She was then audibly coached by someone off-screen. The lawyer stopped to ask whether someone else was in the room with the mother, but the mother said "no," and the lawyer went on.
The court also noted that the lawyer asked leading questions about the will. He did not ask open-ended questions to elicit whether the mother understood the extent of her assets and liabilities. The court noted that the lawyer did not ask her to discuss her differentiated positions toward her children. The lawyer did nothing in the signing ceremony to indicate that he took any steps to inquire about whether the respondent was unduly influencing the mother.
The court also questioned Sonya's financial involvement and noted inconsistencies in her testimony during cross-examination. The court was concerned that all the evidence created an impression that the mother was independent in caring for her finances, which was inconsistent with Sonya's evidence of opening and paying her mother's bills and mail.
The court emphasized that witnesses' evidence is assessed based on internal consistency, external consistency, and consistency with common sense. The court found that Sonya's evidence on the mother's finances was inconsistent with her evidence and with common sense.
Ultimately, the court found that Sonya Carinci claimed that her mother was financially independent when this was not so. Sonya was secretly in the room with her mother during the will-signing ceremony, which benefited Sonya significantly. The court stressed that these pieces point toward undue influence and raise issues concerning the mother's capacity when signing the final wills.
While the court found Steven's evidence was insufficient to establish the threshold air of reality to his claims of incapacity and undue influence, the court still found that the evidence given by Sonya in her affidavit and under cross-examination was sufficient to justify putting the estate through the cost and delay of investigation.