UBC and dead woman's former gardener battle over her Burnaby home and cash

The University of British Columbia and a dead woman’s former gardener are battling in B.C. Supreme Court over a $1.7 million Burnaby home and nearly $170,000 in cash.

Mary Ann Gordon, a childless widow, died at age 98 on July 13, 2014, according to court documents.

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UBC was named the sole residual beneficiary in her will, but, by the time she died, her house at 4575 Neville St., her car and most of her money was in the possession David Yukio Ohori, her former gardener, according to the university.

UBC filed a petition in B.C. Supreme Court last August to have those assets returned to Gordon’s estate, arguing the elderly widow had lacked the mental capacity to transfer them to Ohori before she died.

Ohori, meanwhile, says the case should be dismissed, arguing he and his wife had supported and cared for Gordon for the last 14 years of her life and it was her clear intention to gift her South Slope home (now worth $1.7 million) to the couple.

Last Thursday, however, Justice Warren Milman granted UBC leave to pursue the case, saying he wasn’t persuaded he could “properly presume that the deceased was competent to transfer her assets.”

And, even if Gordon had had the capacity to transfer the house to Ohori, Milman says the gardener’s lawyers had so far cited “little or no evidence to support the validity of the other transfers that he received in the final months of the deceased’s life.”

A 'close friendship'

Ohori started working as Gordon’s gardener in the spring of 1998, after the death of Gordon’s husband, according to court documents.

After he had completed his work in the garden, Ohori says Gordon would invited him in for “a cup of tea and a chat,” and a “close friendship” developed that went on to include Ohori’s wife Keum Soo (Monica) Ohori.

Over the years, the couple visited Gordon, went shopping for her, drove her to appointments and shared meals with her, according to Ohori’s response to UBC’s petition.

“Over that period, (Ohori) went from being (Gordon’s) ‘gardener’ to someone (Gordon) referred to as ‘her son’ when introducing him to the staff at the long term care facility where she was living,” states the response.

By the end of her life, macular degeneration had left Gordon blind, and she had decided in a September 2000 will to leave the bulk of her estate to UBC to fund research into macular degeneration and other eye diseases.

A new will in December 2003, named her neighbour Vian Andrews and Ohori as co-executors and conferred to each a gift of $25,000.

A 2005 amendment to that will increased Ohori’s gift to $50,000, and other changes in 2008 made Ohori Gordon’s sole executor, attorney and representative.

gardener house
This South Slope home formerly owned by Mary Ann Gordon has become the subject of a court fight between UBC and Gordon’s former gardener in a dispute over Gordon’s will. - Cornelia Naylor

In 2010, after Gordon moved into the St. Michael’s Centre long-term care facility, Ohori says she told him she didn’t want UBC to have her Burnaby house but instead wanted it to go to Ohori and his wife because they were “like a son and daughter to her.”

After prompting from Ohori, Carlos Bernardino, a lawyer who had known Gordon since 1994, talked to her about the transfer three times in 2011 and 2012, and each time concluded she didn’t have the required mental capacity to sign over her property.

After one visit, Bernardino concluded Gordon “did not have a good grasp as to the nature and extent of her assets and was unclear as to what her wishes were.”

In February 2012, Gordon scored 17 out of 27 on a mini-mental status exam. Among other things, she didn’t know what year it was and thought she was in Bellingham.

After Bernardino retired, however, Ohori and his wife brought Gordon by taxi to another lawyer, Stephen Miller, who concluded she did have the required mental capacity and witnessed her signature as she signed her house over to Ohori.

According to UBC’s petition, nearly $40,000 was paid from Gordon’s bank account to fix up the Burnaby house after the transfer.

About a year later, more than $90,000 was transferred from a joint account held by Ohori and Gordon to Ohori’s personal account.

Gordon also named Ohori the beneficiary of her tax-free savings account, to which Gordon had contributed $35,537 between 2010 and 2014.

New legislation

Before a change in legislation in 2014, only an executor could sue to have assets returned to an estate in cases where mental capacity was in question. That would have left Ohori in the position of suing himself, but changes to the Wills, Estates and Succession Act now allow beneficiaries to appeal to the court to sue to have assets returned to the estate.

Milman’s ruling has effectively put UBC into the executor’s shoes, allowing the university to sue Ohori on behalf of Gordon’s estate, according to UBC’s legal counsel.

UBC stands to acquire $2 million in assets if its case succeeds, according to court documents.

“Where an individual leaves a gift in his or her will to UBC, the university has an obligation to ensure the intentions of the deceased are honoured,” said UBC lawyer Elizabeth Moxham in a statement. “The university owes this obligation, not only to the donor, Ms. Gordon, but also to other donors and to the community that the university serves to ensure that donors gifts are received by the university as the donors intended so that they can be used for the charitable purposes that the donors intended.”

Calls to Ohori from the NOW were not returned.

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