The recent Saskatchewan decision in Boire v Boire, 2025 SKKB 150 reminds us of the importance of properly documenting an express trust when adding third parties to title. In Boire there was sufficient evidence of a trust interest as to permit the Court to summarily enforce the beneficiary’s rights in the trust property, and avoid a long and costly trial.

Factual Background:

1. Marcel (“Marcel”) an 86-year-old widower from southern Saskatchewan, moved out of the family home after his wife Evelyn’s death.
2. In 2023, prior to Evelyn’s death, Marcel and Evelyn had placed the names of their three children on title to the Home for estate planning purposes. It is common for property owners to add intended beneficiaries to land titles, expecting that these beneficiaries will eventually receive sole ownership through the right of survivorship, thereby avoiding probate costs and delays.
3. Estate planning documents typically state that property owners retain the right to sell the property and receive the proceeds during their lifetimes. Those added to title generally have no control or beneficial interest until the owner’s death.
4. The issue arose when Marcel wished to sell the now-vacant family home (“Home”) but one child, Gregory, refused to cooperate.
5. At the time of adding the children to title to the Home, Marcel and Evelyn entered into a written agreement with their three children (the “Agreement”).
6. The Agreement did not use the word “trust”, but it did provide for the below:

1. Title was to be registered in the names of “the owners” (Marcel and Evelyn) and “the beneficiaries” (the children) as joint tenants “for estate planning purposes”;
2. Marcel and Evelyn retained full control of the Home during their lives and were entitled to all revenues from the Home and responsible for all expenses associated with it;
3. The children would “become the beneficial owners” of the Home upon the death of both their parents; and
4. Marcel and Evelyn could sell the Home during their lifetime and if they did so, they would be entitled to all sale proceeds notwithstanding their children’s registered interests on title.

7. When Marcel decided to sell the home, his daughters signed the listing agreement, but Gregory refused, wanting to ensure he received the share he believed his mother intended for him

Issue:

Was Gregory’s interest in the home held in trust for Marcel, allowing Marcel to control the use and ownership of the home during his lifetime?

Determination in Boire v Boire:

The Court found that the Agreement created an express trust, giving Marcel control over the Home’s use and sale.  

A trust is a legal relationship wherein a trustee manages property for the benefit of the beneficiaries. In law, trusts can be created in a number of ways. They can be intentionally created, or they may come into being through operation of law. Marcel was alleging an express trust, which is a trust that is intentionally created. For an express trust to be found in this situation, the Court would have to determine that the settlor of the trust (Marcel and Evelyn) had transferred the Home into the names of the alleged trustees (the three children) with the stipulation that the Home would be held for the benefit of the beneficiaries (Marcel and Evelyn).

The Court held that the relevant time to assess if a trust was created was at the time of the transfer into the name of the alleged trustees:

[9]            In Saskatchewan the party seeking to establish the existence of a trust must demonstrate that the transferor lacked donative intent at the time of transfer. The Court of Appeal has cautioned that gratuitous transfers should be accompanied either by a deed of gift or by a declaration of trust: Dunnison Estateat para 114. It also stated that if a transferor wants the ability to reclaim the land in question, at least as a practical matter, he or she should create an express trust at the time of transfer: para. 105; see also Martin v Martin, 2022 SKCA 79 at para 8.

The Court observed that to create a trust, there must exist the below three certainties:

1. Certainty of intention to create a trust;
2. Certainty as to the subject matter of the trust; and
3. Certainty as to the beneficiaries of the trust.

The Agreement satisfied these requirements. Marcel and Evelyn retained full control and beneficial ownership during their lifetimes, with the children holding bare legal title. Gregory would not obtain a beneficial interest until Marcel’s death. As Marcel was still alive, he retained absolute control over the home and its proceeds. Marcel had the right to compel Gregory’s cooperation in the sale.

If Gregory refused to cooperate, the Court could enforce the Agreement through a judicial order. The Court held as follows:

[18]            I find that Marcel and Evelyn Boire entered into this agreement with their children to document their intentions at the time of transfer. Their intention was to provide that the children would hold bare legal title to the land in trust for their parents and would only acquire a beneficial interest in the land upon the latter’s death, if the land had not been sold. The agreement created an express trust.

Gregory was concerned he might not receive a share of the home’s proceeds, fearing Marcel could exclude him from the will. The Court found these concerns did not justify Gregory’s refusal to cooperate, nor did they invalidate the trust’s terms.

What order did the Court make?

Marcel requested various remedies, including vesting title in his name and his daughters’ names, or solely in his name, and alternative submissions for partition and sale. The Court determined the most practical remedy was to vest title solely in Marcel’s name:

[23]            Mindful of Gregory’s concerns, and mindful of the fact it is no longer expedient for the parties that the children’s names remain on title, I am granting an order pursuant to  109(3)of The Land Titles Act, 2000. I direct the Registrar to transfer title in the property into the sole name of Marcel Boire.

Conclusion

Boire offers various lessons for practitioners. These include:

1. If an owner of land is placing land into the name of another person, with the intention that they act as trustees, it is vital to ensure that this trust relationship is evidenced by a contemporaneous declaration of trust. This declaration of trust should provide clear evidence of the three certainties, being certainty of intention to make a trust, of subject matter and of the beneficiaries of the trust.

   Here, if Marcel had not prepared a trust agreement at the time of adding Gregory to title, it would have been far more time consuming, costly, and uncertain to prove that Marcel held the beneficial ownership of the Home during his lifetime; and

2. The Court has the power to make a vesting order under s.109 of The Land Titles Act, 2000, in order to provide an efficient remedy. This allows correction of the title without resorting to complex sale orders or partition actions.

The above is for general information only, and not legal advice. Parties should always seek legal advice prior to taking action in specific situations. 

The recent Saskatchewan King’s Bench decision in Hagen v. Olsen, 2025 SKKB 132 offers a reminder that a testator cannot attempt to impose conditions (through their will) on property which will no longer be owned by their Estate as of the future date of death.

Factual Background:

The factual background in Hagen v. Olsen included the below:

1. The dispute arose in relation to the Estate of Gerald Olsen (“Estate”), who passed away on November 7, 2023. On one side of the dispute are three of the deceased’s daughters Laureen, June and Candice (“Daughters”). On the other side was the deceased’s son (“Son”), who was also the named executor in the Last Will and Testament of the deceased dated March 26, 2021 (“2021 Will”);
2. Prior to the passing of Gerald Olsen (“Deceased”), the Deceased transferred certain respective lands into the joint names of himself and each of the respective Daughters. He also transferred one quarter section into joint names with another daughter Holly (however that parcel was not at issue in this dispute);
3. The transfers to the Daughters occurred on the following dates:

1. SE 34 – transfer executed on December 29, 1997 (joint names with Laureen (“Laureen”));
2. SW 32 – transfer executed on March 17, 2003 (joint names with June (“June”); and
3. NE 4 – transfer executed on January 22, 2008 (joint names with Candice (“Candice”).

4. The above SE 34, SW 32, and NE 4 are hereafter the “Lands”;
5. It appears that in 1997, shortly after the transfer of SE 34 to Laureen, the deceased, the deceased’s spouse (Maxine Olsen) and Laureen executed a trust agreement (“1997 Trust Agreement”) which indicated that the SE 34, SW 32, and NE 4 would be held in trust by the joint tenants. The relevant portion of the 1997 Trust Agreement indicated as follows:

2. It is agreed that the title is held by the trustees in trust

1. for the use and benefit of [Gerald Olsen] during the lifetime of [Gerald Olsen];
2. is to be dealt with as [Gerald Olsen] may direct in writing at any time during his lifetime;
3. [Gerald Olsen] shall be entitled to all of the income therefrom, or any proceeds from any sale;
4. upon the death of [Gerald Olsen], the said property shall belong to [Maxine Olsen], if living, on the same conditions as set out in 2. a), b) and c), and upon the death of [Gerald Olsen] and [Maxine Olsen], the property shall belong to [Laureen Hunter] unless the Last Will and Testament of [Gerald Olsen] and [Maxine Olsen] provides otherwise.

6. Again, for chronology, it is important to note that after this 1997 Trust Agreement was signed, the Deceased added June and Candice onto the titles for SW 32 and NE 4, respectively, and did not first require June and Candice to sign a trust agreement which stipulated what use could be made of the Lands after the Deceased died;
7. Maxine Olsen was the Deceased’s spouse, who predeceased the Deceased;
8. June’s evidence was that the Deceased did not discuss a similar trust agreement with her when her Land was transferred into joint names in 2003. The same is true for Candice when her Land was transferred into joint names in 2008;
9. Unsigned trust agreements were later apparently discussed between the Deceased and his lawyer. In a letter dated September 16, 2010, the Deceased’s lawyer advised the Deceased and his wife that June and Candice had not signed trust agreements for their Lands;
10. After the Deceased’s passing, the Daughters each transferred the jointly held Lands into their sole names by way of survivorship. The Son had continued to farm those Lands without paying any compensation to the Daughters, relying on the terms of the 2021 Will;
11. The relevant portion of the 2021 Will provides as follows:

2.   I have already given land to HOLLY, and my other three daughters will each receive land at fair market value as follows, on the condition that my son, KURT, shall be entitled to rent each quarter of land, as long as he is actively farming, by payment of municipal taxes only and no additional rent. Once he is no longer full‑time actively farming, each daughter may take complete charge of her own land.

1.   NE 4‑47A‑24 W2 [sic] to CANDICE.
2.   SW 32‑46‑23 W2 to JUNE.
3.   SE 34‑46‑24 W2 to LAUREEN.

Issues:

Various issues were considered in Hagen v. Olsen. However, this case comment focuses on the below issues:

1. Issue 1: Was the Son obligated to provide an accounting for his administration of the Estate?
2. Issue 2: Were the Lands subject to a trust that allows the Son to farm the Lands, despite the fact that the Daughters were the registered owners?

Decision in Hagen v. Olsen:

1. Issue 1: Was the Son obligated to provide an accounting for his administration of the Estate?

The Court held that the Son was indeed obligated to provide an accounting for his administration of the Estate.

The Court noted that s. 55 of The Trustee Act, 2009, SS 2009, c T 23.01 compels an executor to provide an accounting to a beneficiary on request. The Court noted prior case law which provided that a beneficiary does not generally need to show cause in order to obtain an accounting, and that the obligation to provide an accounting does not depend on whether probate was obtained.

Here, the Son had not provided an accounting because he said that the Estate was set up in such a way that probate was not required for its assets. The Son indicated that the administration of the estate was substantially complete. He notes that there is only approximately $9,000 left in the Estate and the Estate owes the Son more than $9,000.

The Court held that there was little evidence showing what assets formed part of the Estate. The Court found it reasonable to surmise that the Estate may have included machinery, vehicles, equipment, buildings, grain on hand and other assets, given the references to many of these items in the 2021 Will. The Court held that “the fact that there is a dearth of cash currently on hand does not change the fact that there is or was an Estate to administer.”

As such, the Court found that the Son had not provided any reasonable justification for not providing an accounting for the Estate as provided in s. 55 of The Trustee Act.

2. Issue 2: Were the Lands subject to a trust that allows the Son to farm the Lands?

The Court also considered the Son’s argument that the term of the 2021 Will entitled him to farm the lands known as NE 4, SW 32, SE 34.

The Court noted that as of the date of death the Lands were already in joint names between the Daughters and the deceased. As a result of the right of survivorship, the Lands were now held by the Daughters in their respective sole names. As owners of the Lands, the Daughters would typically have all of the rights associated with ownership, including the right to choose whom they wish to rent to.

The Son, though, argued that the Lands were held by the Daughters pursuant to an express and/or resulting/constructive trust which obligates the Daughters to rent the Lands to him on a rent‑free basis.

With respect to the allegation of express trust, the Son relied on the 1997 Trust Agreement reached between the deceased and Laureen related to her parcel of Land. The Son also alleges that certain unsigned trust documents had been prepared by the Deceased’s lawyer related to June’s and Candice’s Lands. The Son argued that such unsigned documents were express trusts that affect those Lands.

The Court found in favour of the Daughters, and held that no express trust existed. As such, they could control who farmed their Lands.

The Court noted that a transferor (here, the Deceased) cannot impose a trust after the addition of a new owner to the Land has already taken place. Thus, to assess whether an express trust is in existence, the operative analysis was what was the Deceased’s intention at the time that the Lands were put into joint names.

With respect to Candice and June, there simply was no evidence that a trust was agreed upon or even discussed with them when the Lands were transferred into joint names.

The Son argued that a contract can be found valid, even if unsigned. He relied on the unsigned trust documents. The Court however found that for that such documents to be binding there must be evidence that the parties intended to be bound by that contract, and the terms of the contract must be known. Here, there was no evidence that Candice and June contemplated or intended to be bound by the unsigned trust documents, as the issue was not discussed with them. For all of these reasons, the Court found that there was no express trust.

Moreover, as relates to Laureen, while Laureen had signed the 1997 Trust Agreement, its terms did not allow the deceased to dictate Laureen’s use of the land following the deceased’s passing.

The 1997 Trust Agreement did not give the Deceased the ability to, after his death, restrict the rent or use of the Land after his passing. Rather, the 1997 Trust Agreement only indicates that the Land belongs to Laureen following Maxine Olsen’s and the Deceased’s passing, unless Maxine Olsen’s and the deceased’s wills say otherwise. Here, the 2021 Will did not “provide otherwise”, and there was no evidence that Maxine’s will provided otherwise either.

Thus, Laureen’s 1997 Trust Agreement did not give the Deceased (or the Son as his executor) the power in law to dictate the use of Laureen’s Land post‑death.

The Court also found that there was no constructive or resulting trust over the Lands:

1. First, there was no constructive trust. To establish a constructive trust, the Son had to establish that there has been: (1) an enrichment, (2) a corresponding deprivation, and (3) the absence of any juristic reason for the enrichment. Here, there was in fact a juristic reason for the transfer by survivorship. That is because such survivorship is expressly provided for under legislation;
2. Second, there was no resulting trust. The Son had not proven that the Deceased had reserved the beneficial title to himself when he added his daughters to the Lands. The Court held that the Son failed to lead any evidence that the deceased did not intend a full gift of joint ownership of Lands to the Daughters.

Cost order:

The Court noted that the dispute had been caused by the Deceased’s own unusual testamentary and trust planning, and the attempt of his will to impose conditions on assets that did not form part of the Estate. The Court ordered that the Estate would pay $6,000 towards the Daughters’ legal costs.

Conclusion:

This case comment in Hagen v. Olsen suggests two lessons for estate counsel:

1. First, the decision reminds us that executors that they may be still required to provide an Estate accounting even if the Estate has not received probate. The duty to inform beneficiaries of what Estate assets existed, and what the executor did with them, still exists if the Estate did not itself receive probate:

1. Compelling an accounting from an Estate that did not receive probate is fact-dependent however. In some situations it could conceivably be open for a Court to decline to compel an accounting where evidence proved there actually was no Estate assets as of the date of death, etc.
2. However, for an executor to simply argue that the Estate had modest liquid funds in the Estate, is not itself sufficient reason to deny an accounting when there were other clues (i.e. terms of the will) which suggested that the Estate may have included things like machinery, vehicles, equipment, buildings, grain on hand and other assets.

2. Second, the decision reminds testators that their will cannot impose conditions on property that they will no longer control as of their date of death:

1. Here, the Deceased attempted to insert a clause in his will that imposed conditions on how his Daughters could rent out the Lands after the Deceased died. However, such attempt ignored that the Deceased had much earlier placed his daughters on title to such Lands as full registered owners, and thereby conferred on them the right to automatically take such Lands if they survived him;
2. It was no longer possible for the Deceased to draft the 2021 Will and impose conditions on the Lands. That ship had already sailed when the Deceased added them to title without trust agreements which controlled who the Lands could be rented to after the Deceased died. Rather, if the Deceased had wished to impose such conditions, the appropriate time in which to do so would have been through a written trust agreement at the time of adding the Daughters’ name to the respective titles. If the Daughters had declined to agree to such trust agreements at that time, then the Deceased could have evaluated if he still wished to add their names to the titles.

The above is for general information only, and not legal advice. Parties should always seek legal advice prior to taking action in specific situations. 

The recent Saskatchewan King’s Bench decision in Harrison v MacMillan offers an example of a will challenge that failed to raise a genuine issue.

While there is no new point of law offered by Harrison, the decision provides a helpful caution to parties who wish to challenge a will. If parties do not have direct firsthand evidence which raises a genuine issue of incapacity or undue influence, they may find that the Court dismisses their challenge. It also reminds us that eccentricity by an elderly testator is not itself evidence of testamentary incapacity.

Background:

The factual background in Harrison included the below:

1. Walter Senkiw (“Deceased”) died on September 27, 2022.
2. The Deceased had made two wills in the last several years of his life.

1. 2018 Will:The 2018 Will named the Deceased’s sister Francis Harrison (“Francis”) as executor and sole beneficiary;
2. 2022 Will:The June 3, 2022 Will named a friend of the Deceased, Ben MacMillan (“Ben”), as executor. It named Ben’s children as beneficiaries.

3. Letters Probate were granted for the 2022 Will on March 6, 2023.
4. Francis later brought an application for solemn form which sought to challenge the 2022 Will. Francis alleged that Walter lacked capacity or was unduly influenced at the time he made the 2022 Will. Francis provided evidence which made the below allegations:

1. Francis provided evidence suggesting that Walter had engaged in erratic behavior and had a diminished mental state between 2019–2022:

1. Francis states that Walter always loved Moosomin and his home there, but around 2019, she observed Walter’s attitude change, and he became increasingly paranoid. She avers that Walter did not trust anyone in Moosomin, and he believed that people were following him;
2. In 2019, Walter had his cell phone disconnected and would contact Francis by payphone. Francis states this was because he did not want anyone to call him regarding his legal issues;
3. Walter was convinced his neighbours purposely made noise to irritate him;
4. Francis observed that Walter did not grasp the cost of flowers they purchased for Francis’ mother-in-law and that he tried to pay with a handful of loose change;
5. In the summer of 2021, Walter financed the purchase of a trailer and parked it in an RV park outside Winnipeg. Francis would regularly visit him there and learned that there were occasions when Walter travelled from Winnipeg to Moosomin in the middle of the night to check on his house and then return to Winnipeg by the morning. It is unclear when or how often this happened;
6. In late 2021, a helicopter flew by the RV park when Francis visited Walter. She explained that Walter was convinced the Royal Canadian Mounted Police were looking for him;
7. On another occasion in 2021, Walter asked Francis to move to Moosomin and was upset when she declined his offer to leave her job and family in Winnipeg.

2. Francis alleged that there were suspicious circumstances including Walter’s odd conduct, and his poor home conditions. Francis avers to attending Walter’s home shortly after learning of his death in October 2022. When she arrived, she observed that Walter’s front door was sealed, the kitchen window was boarded up, and he had numerous deadbolts on his back door. She observed white towels placed throughout the house on top of the carpet, and the pipes had been removed from a bathroom sink. Walter’s toilet did not flush. Walter had buckets of human waste in the bathroom; and clothes hanging on lamps; and
3. Francis also emphasized her concern that the 2022 Will constituted a sharp departure from his 2018 Will.

5. Ben sought to uphold the 2022 Will. Ben offered evidence that described his relationship with the Deceased as neighborly, and that Walter himself had initiated any decision to change the 2018 Will. Ben denied any improper influence or involvement in Walter’s testamentary decisions.
6. Ben said that Walter complained to him about Francis and other members of his family who had not made an effort to contact Walter in recent years. Ben understood Francis lived in Manitoba and that Walter had recently lost the relationship with Francis.
7. Ben spoke of observing Ben’s wife and Walter speaking almost daily in their yard, while they were neighbors. Ben states that Walter occasionally gifted him work gloves, and once they moved to a different street in Moosomin, Ben and his family would stop by and visit Walter. Ben describes assisting Walter with various tasks around his home. Ben and his family later moved to a farm.
8. Ben spoke of Walter visiting Ben’s farm on his way home from a camping trip in 2022. During that visit, Walter showed Ben and his wife his will, naming Ben as executor and Ben’s children as beneficiaries. Ben states that he and Walter had never spoken about estate planning before this, and this was the first Walter had mentioned anything to Ben about his will. Ben further stated that Walter indicated he did not wish his estate to go to his family and chose to benefit Ben’s children instead.
9. The 2022 Will had been drafted by a lawyer, Lynnette Bock. Ms. Bock provided evidence of her experience in estate planning, indicating that during her career she had completed over 1,000 wills for clients.
10. In her affidavit, Ms. Bock described her routine when meeting with clients on estate matters as including:

1. Ensuring that clients were oriented to time or place and had no difficulty following the conversation;
2. Observing the person’s hygiene and appearance and whether they attend her office independently or with another person;
3. Tailoring her questions to gauge whether the client is under duress and would address any concerns directly with the client.

11. Bock attested to following her usual routine when meeting with Walter on May 20, 2022, and again on June 3, 2022. She offered the below recollections:

1. They met at her Rocanville, Saskatchewan office, and she observed that Walter had driven himself to the appointments. Walter was on time and wore a mask as required due to the COVID-19 pandemic;
2. Bock described Walter as a “bit odd” but had no concerns about Walter’s mental capacity. Ms. Bock states that she has clients whose behaviors were far more concerning than the ones that Walter exhibited;
3. Bock engaged Walter in typical small talk and noted that he was clean and well-groomed for both appointments. She did not observe any behaviours that she would consider a red flag;
4. Bock’s practice was to review every paragraph of a will with every client before they signed it.

12. In short, Ms. Bock provided evidence that Walter had instructed Ms. Bock that he wanted to leave his estate to Ben’s children. Ms. Bock had simply followed such instructions.  Ms. Bock did not meet or speak to Ben until Walter’s death when Ben and his wife Monica attended at Ms. Bock’s office.

Issue:

This case comment focuses on the below issues which were discussed in Harrison:

1. Issue 1: Was there a genuine issue of testamentary capacity in relation to the 2022 Will; and
2. Issue 2: Was there a genuine issue of undue influence in relation to the 2022 Will.

Decision in Harrison:

Overview of the process of challenging a will:

To challenge a will in Saskatchewan, a challenger must go through two levels of hearings:

1. The first stage is a threshold Chambers hearing to determine if there is sufficient merit in the challenge to warrant a trial;
2. The second stage (if the applicant is successful) is a trial hearing to actually determine the allegations made against the will.

The Court in Harrison noted that it was concerned with the first stage of a will challenge. The Court’s focus was thus centered on determining if Francis had provided sufficient evidence of a genuine issue which would justify the expense and delay of a future trial.

Issue 1: Was there a genuine issue of testamentary capacity in relation to the 2022 Will

The Court examined if Francis had provided evidence that Walter lacked testamentary capacity. Such analysis required the Court to review if Walter appeared unable to understand the below:

1. The nature and extent of his property;
2. The persons who are the natural objects of his bounty;
3. The testamentary provisions he is making; and
4. Whether Walter was capable of appreciating these factors in relation to each other, and forming an orderly desire as to the disposition of his property… (see para 50 of Harrison).

Francis argued that suspicious circumstances surrounded the execution of the 2022 Will. Francis stated that the fact the 2022 Will was executed almost four months before Walter’s death is suspicious in and of itself. Francis claimed that Walter’s naming of Ben as executor and his children as beneficiaries was inexplicable.  

Francis averred that Walter had never expressed any desire or intention to have anyone other than Francis as the executor and beneficiary of his estate. Based on Francis’ observations of his behaviour between 2019 and his death in 2022, Francis believes that Walter did not have the testamentary capacity to make the 2022 Will. Walter passed away a few months after the 2022 Will was signed.

Francis also appended a letter from a Melville lawyer (“Melville Lawyer”), who was Walter’s previous counsel and the lawyer who had prepared Walter’s 2018 Will. In this letter, the Melville Lawyer expressed concerns to Francis about Walter’s mental capacity, explicitly stating:

I suspect that Mr. MacMillan was a con artist who manipulated or coerced your brother into naming him as the executor for his estate. Your brother would not have had the mental capacity to make a new Last Will and Testament appointing Mr. MacMillan as his executor and Mr. MacMillan’s children as beneficiaries of his estate. The actions of Mr. MacMillan since being appointed as executor of the estate are self-explanatory.

Francis also included transcripts from Walter’s criminal court proceedings (2018–2021). These records, as summarized in the reasons of the court proceedings, allegedly showed repeated issues relating to Walter’s ability to instruct counsel:

1. Multiple lawyers (including the Melville Lawyer and other court-appointed counsel) were unable to obtain clear instructions from Walter, with at least one lawyer asking to withdraw for this reason;
2. The Crown and counsel expressed frustration about Walter’s lack of cooperation and inability to properly participate in his defence;
3. Francis suggested that these events created a public record documenting impediments to Walter’s lack of decision-making capacity during his criminal court proceedings.

Francis suggested that these patterns from Walter’s criminal proceedings—where his lawyers repeatedly cited difficulty obtaining proper instructions—were indicators that Walter lacked testamentary capacity around the time that Walter executed the 2022 Will. Francis’ argument was that these issues were not isolated to the criminal legal proceedings, but reflected a broader inability to understand complex decisions like executing a valid will in 2022.

However, Court in Harrison declined to order a trial on the ground of incapacity. The Court found no evidence suggesting a genuine issue relating to Walter’s capacity to make the 2022 Will. The Court expressly noted the lack of any medical records or direct evidence of Walter’s cognitive impairment as of 2022. Rather, Ms. Bock’s uncontroverted evidence showed Walter understood the process and provisions of the new will.

Moreover, the Court held that the mere fact that Walter’s home was untidy and needed repair did not mean that Walter did not understand the nature and extent of his property. The fact that he had his front door boarded up, and several locks on the back door was unusual but not demonstrative of a lack of capacity to make decisions when he executed the 2022 Will.

Moreover, the Court referenced a December 2021 transcript, which showed that Walter had been found to have capacity to make legal decisions in 2021.

The transcript provided a record of the Melville Lawyer re-appearing as counsel for Walter in a criminal proceeding. In that transcript, the Melville Lawyer indicated that the Melville Lawyer had canvassed 606 of the Criminal Code with Walter, and Walter entered a guilty plea. In a criminal proceeding, the court is required to ensure that an accused understands the implications of a guilty plea before accepting it. This is codified in section 606 of the Criminal Code, which outlines the conditions for a valid guilty plea. It outlines the types of pleas an accused can enter, the conditions for accepting a guilty plea, and procedures for handling situations where an accused refuses to plead etc.

The Court took this December 2021 transcript as confirming that as of 2021 Walter was in fact able to understand the criminal process, and also instruct his counsel. The Court wrote the below in Harrison:

[61]      The Court [in the criminal proceeding] accepted Walter’s guilty plea and the joint submission on sentencing. I see no reference to Walter’s lack of capacity or decision-making ability then. Surely, [the Melville Lawyer] would not have taken instructions to enter a guilty plea and represented to the Court that he had canvassed  606 of the Criminal Code with Walter if he believed that Walter could not give such instructions or understand the gravity of the s. 606 inquiry.

..

[76]             I accept that Walter could make decisions when he instructed [the Melville Lawyer] to enter a guilty plea to a criminal charge in December 2021. The Court heard and accepted the guilty plea and counsel’s submissions that he had canvassed s. 606 with Walter. Any evidence that Walter may have lost capacity between December 2021 and June 2022 is thin.  

The Court also disregarded the Melville Lawyer’s letter to Francis in which he wrote “Your brother would not have had the mental capacity to make a new Last Will and Testament…” The Court found that there was an insufficient evidentiary basis to conclude that the Melville Lawyer could make direct conclusions as to Walter’s capacity in 2022. We find the below in Harrison:

[64]          I have disregarded [the Melville Lawyer’s] letter in its entirety. [He] knew Walter and prepared the 2018 Will. The Court is unaware of how [he] can speak to Walter’s capacity beyond preparing and executing the 2018 Will. He does not even comment on his steps to ascertain Walter’s capacity then. He does not say when he next saw Walter again, but we know he represented Walter intermittently in his criminal matter between 2018 and 2021. [He] says nothing about his appearances in criminal Court nor does he provide any observations he made of Walter during those appearances. Further, [his] letter is not evidence. It is an unsworn letter appended to Francis’ affidavit. [His] comments about Ben are not based on actual knowledge of Ben or Ben’s relationship with Walter. Finally, his opinion that Walter did not have the testamentary capacity to execute a new will appointing Ben as executor is undermined by his representations to the Court in December 2021, when he entered a guilty plea to assault on Walter’s behalf and advised the Court that he had canvassed s.  606 with Walter.

Issue 2: Was there a genuine issue of undue influence in relation to the 2022 Will?

Francis made a second argument against the 2022 Will. Francis also argued that there was a genuine issue raised in relation to undue influence. Undue influence is defined as pressure which actually compels the testator to do something which they do not desire to do. The onus to show undue influence rests on the challenger.

Francis made the below arguments:

1. Francis alleged that Walter radically changed his testamentary plan from the 2018 Will (where she was sole beneficiary) to the 2022 Will (favouring Ben’s children). Francis asserted that this fact suggested coercion or improper influence by Ben;
2. Francis described the breakdown of Walter’s family ties and her own estrangement, coupled with the unusual selection of non-family beneficiaries, as amounting “suspicious circumstances;”
3. Francis further alleged that Walter’s erratic and paranoid behaviors (such as increased home security measures and isolation), as well as the poor state of his home, pointed to his vulnerability and susceptibility to coercion by Ben.

The Court reviewed the evidence and held that Francis had not in fact provided sufficient evidence to raise a genuine of undue influence. The Court relied on the below grounds:

1. There was no evidence that Ben was present during or involved in the process of making or signing the 2022 Will. Ben’s uncontested affidavit stated that he did not discuss estate planning with Walter, was unaware of the will’s particulars, and that Walter himself initiated any discussions about his estate;
2. Ms. Bock drew up the 2022 Will and had followed standard practices to verify capacity and ensure that instructions were voluntary. She detected no signs of coercion, pressure, or influence on Walter when he gave instructions or executed the Will.

The Court held that the mere fact of a dramatic change in beneficiaries, or evidence of Walter’s odd behavior, did not amount to proof of coercion.

Conclusion:

The Court held that Francis had failed to raise a genuine issue requiring a trial. The Court held below:

[82]           Without conflicting evidence on the issue of testamentary capacity or undue influence or a conflict in the evidence about Walter’s capacity or the issue of undue influence at the time the 2022 Will was executed, there is no reason to continue the matter to a trial. Francis has not raised evidence that Walter did not appreciate or understand the nature of the document or the extent of the property to be disposed of. Any odd behaviours Walter may have had do not appear to have impacted his mental competency to make a will.

The application for the 2022 Will to be proven in solemn form was dismissed. Francis was ordered to pay costs of $1,500 to Ben.

Harrison offers certain lessons for any will challenger. These include:

1. The evidence of the attending solicitor who took instructions from the deceased is often crucial in the eyes of the Court. Here, the evidence of Ms. Bock was very influential in convincing the Court that there was no genuine issue requiring a trial;
2. Suspicious behavior by an eccentric elderly relative, who suddenly makes a notable change in their will, is not itself sufficient evidence to justify the expense of a future trial. Rather, firsthand and direct evidence of testamentary incapacity or potential undue influence at the relevant time, will generally be required to justify the expense of a trial. For a relative who may not have had frequent contact with the deceased in their last years, it may be difficult to acquire firsthand evidence on such topics;
3. When alleging that there is a genuine issue of incapacity, it is very helpful to obtain supportive medical records of incapacity. In Harrison, the Court explicitly commented on the lack of any supporting medical records offered by Francis in relation to mental capacity (see para 73 and 81). That said, in light of the recent decision in Stradeski v Kowalyshyn, 2023 SKKB 177, it can also be very difficult for a challenger to obtain such medical records before stage 2 of a will challenge. In the view of this author, the disclosure difficulties posed by Stradeski in this regard may one day have to be addressed by the Court of Appeal.

The above is for general information only, and not legal advice. Parties should always seek legal advice prior to taking action in specific situations.