In Care of Yvette Poirier v. Estate of Paul Poirier, 2025 ONSC 0482, the Court considered an application to set aside the conveyance of a home from a mother to her son , on the basis that the mother lacked capacity and was subject to undue influence. In an unusual set of facts, the daughter who sought to set aside the conveyance had originally agreed to the transfer in question and personally benefitted from it by accepting funds from her mother.

Facts

Yvette Poirier was 106 years old and suffered from advanced dementia. She resided in a retirement home. Yvette was predeceased by her husband, who died in 1993. Yvette had three children, Paul, Lyse and Denise.

Following her husband’s death, Yvette resided in her home with Paul, while Lyse and Denise moved away. For many years, Paul maintained the home and was Yvette’s devoted caregiver. The home was Yvette’s primary asset.

In 2009, when Yvette was 91 years old, Paul took her to a solicitor, Mr. McNeely, in order to transfer the home into joint tenancy with Paul and Yvette, and to make changes to Yvette’s Will to create a greater entitlement for Paul. Mr. McNeely interviewed Yvette but declined to act without a capacity assessment due to his concerns of undue influence from Paul and that Yvette lacked the requisite capacity.

Paul terminated Mr. McNeely’s services and took Yvette to another solicitor called Mr. Dagenais. Mr. Dagenais did not refer Yvette for independent legal advice, and took instructions to transfer the home into a joint tenancy between Yvette and Paul. Mr. Dagenais also prepared a new Will which Yvette signed, which provided that Paul could occupy the home for as long as he wished, after which it would be sold, with the proceeds to be divided 50% to Paul and 25% to each of Lyse and Denise. In 2010, Yvette appointed Paul as her attorney for property and personal care. Although Paul married in 2014, he continued to lived at the home with Yvette while his wife lived elsewhere.

In 2016, at the age of 98, and while suffering from advanced dementia, Paul, Denise and Lyse took Yvette back to Mr. Dagenais, at which meeting Yvette conveyed her home from a joint tenancy, to Paul’s name alone. This conveyance was undertaken further to an agreement between Paul, Lyse and Denise by which the sisters would accept $50,000 each from Yvette’s bank account, and $10,000 each from Paul personally, in exchange for waiving their interest in the home that Yvette conveyed to Paul. It was unclear whether or not Yvette was aware of the agreement between her children. Mr. Dagenais himself was unaware of the agreement. While he interviewed Yvette, he did not recommend that Yvette seek independent legal advice, nor request that Yvette obtain a capacity assessment, notwithstanding the fact that the conveyance of title solely to Paul would have make the disposition in Yvette’s Will impossible.

In 2019, Yvette suffered a fall and moved into a retirement home where she continued to reside. Only then did Paul’s wife move into the home with Paul. At some point, Lyse and Denise discovered that Paul had been removing funds from Yvette’s accounts. Paul acknowledged his actions and agreed to repay some funds, but continued to owe some $32,000.

In 2021, Paul committed suicide. Before his death, he transferred title to the home to his wife, where she now lived. Also in 2021, Lyse became Yvette’s attorney for property and personal care, and grew concerned that Yvette lacked sufficient assets to maintain her care in the retirement home.

Application

Lyse, in her capacity as Yvette’s attorney for property and personal care, commenced an application against Pierre’s estate to set aside the 2016 conveyance of the home to Paul. The principal issues on the application were whether Yvette had the capacity to transfer her interest in the home to Paul in 2016, and whether the conveyance was the result of undue influence on the part of Paul.

The Court commented that it was remarkable for Lyse to allege that Yvette lacked capacity to convey the home to Paul in 2016 in the face of the admission that Lyse and Denise cooperated with Paul in bringing Yvette to Mr. Dagenais for that very purpose.

In support of her position, Lyse tendered a retrospective capacity assessment of the geriatric psychiatrist Dr. Joel Sadavoy, who opined that due to her significant dementia, Yvette lacked sufficient mental capacity to make a competently reasoned decision to transfer her home to Paul, and that she would have been unable to appreciate the reasonable consequences of her decision. In response, Pierre’s estate submitted a retrospective capacity assessor from Dr. Alina Kaminska, a phycologist, who concluded that in 2016, Yvette was capable of transferring her home to Paul as there was no compelling evidence of cognitive or physical limitation preventing Yvette from understanding that she was parting irrevocably with her principal assets, or that she was risking her ability to financially support herself.

The Court ultimately preferred Dr. Sadavoy’s opinion, as he was a medical specialist and an experienced geriatric psychiatrist. The Court found his report to be persuasive, in particular Dr. Sadavoy’s analysis of the progress of Yvette’s dementia and the cognitive impairment caused it caused. Dr. Sadavoy also pointed to Yvette’s dementia diagnosis in 2010, with reference to “significant impaired mental function” by 2012. In addition, Dr. Sadavoy paid close attention to the evidence of witnesses and Yvette’s physicians as to her behaviour and cognitive limitations.

On the strength of Dr. Sadavoy’s opinion, the Court set aside the 2016 conveyance of her home executed by Yvette, and re-vested the joint tenancy between Yvette and Paul’s estate.

Having foumd that Yvette lacked capacity to convey the property, the Court did not need to consider the issue of undue influence by Paul with respect to the transaction. However, the Court did find that the presumption to undue influence applied, given that Paul lived with Yvette, she was in her late 90s and dependant upon him, and Paul believed he was entitled to the home and a larger portion of Yvette’s estate.

The Court also found that Mr. Dagenais’s involvement did not rebut the presumption of undue influence, and that the solicitor failed to meet the standard of care for failing to refer Yvette for a capacity assessment and independent legal advice.

Takeaway

This decision demonstrates the risks if a solicitor fails to refer a client for independent legal advice and a capacity assessment where the client is vulnerable to undue influence and the transaction in question may be to the client’s financial detriment. This decision also demonstrates the Court’s preference for the evidence of a geriatric psychiatrist over a psychologist where their opinions diverge on the issue of mental capacity. However, the decision left unanswered the issue of how Lyse and Denise could agree to the impugned conveyance and benefit from it, only to successfully apply to set it aside at a later date. Although the issue was not before the Court, Lyse and Denise were not ordered to repay the $100,000 they withdrew from Yvette’s account further to their agreement with Paul, which presumably would have offset Yvette’s financial need.