Kusch and Clavelle Contribute to CBA BarNotes

The most recent issue of the Canadian Bar Associations’s BarNotes contains articles by two RS lawyers.

Travis Kusch’s article “Closely Held Corporations: Avoiding the Messy Break-up”  offers practical advice to families who enter into business together.

Curtis Clavelle contributed “When Can an Employee Sue an Employer?”.  In the article he gives guidance on the scope and effect of c. 43 of The Workers’ Compensation Act.

BarNotes is published three times a year and is provided to members of CBA Saskatchewan.

 

 

Case Comment Klassen v. Wiers Estate

This article offers an overview of the 2018 Saskatchewan decision in Klassen v. Estate of John Arnold Wiers, 2018 SKQB 32, 288 A.C.W.S. (3d) 598.

Klassen was a decision which turned on a careful assembling of the evidence. While there was no single piece of magic evidence, Klassen reminds parties how methodical gathering of clues as to a testator’s intent, can ultimately successfully rebut a challenge.

Background to Klassen:

Klassen involved a deceased who had a wife and two children (a daughter and son). By the time of the deceased’s death, both the wife and the son had predeceased him. The deceased was therefore survived by his daughter, who lived out of province, and by a daughter in law, with whom the deceased was close.

On August 12, 2015, the deceased executed a will. In it, the deceased named his former pastor as executor. The will gave certain farmland to the daughter in law, but no land to the daughter. After the deceased died, on December 14, 2016, the Executor obtained Letters Probate from the Court of Queen’s Bench.

The daughter decides to challenge the 2015 Will:

The daughter sought a determination of the testamentary intentions of the deceased and, in the alternative, sought an order for proof in solemn form of the deceased’s will.

The daughter believed that her parents had always intended that she and her brother were to inherit the farmland. The daughter also claimed that the deceased lacked testamentary capacity at time that he executed the will, due to dementia or Alzheimer’s disease.

In support of her application, and her arguments of incapacity, and undue influence, the daughter provided the following evidence:

  1. The deceased had received a diagnosis of Alzheimer’s disease in 2009;
  2. The daughter visited the deceased in May 2014 and found him living in a disorganized, messy and dirty apartment, with little food, contrary to his usual habits;
  3. In a letter dated April 7, 2015, a neurologist, Dr. Melad Shawush, described examining the deceased and finding severe dementia;
  4. A close and long-time friend of the deceased, Mr. Herman, noticed a big change in him in May 2014. Mr. Herman found the deceased forgetful and more distant. While the deceased had usually driven to Mr. Herman’s farm once a week, the deceased never did again after the May 2014 visit;
  5. The daughter had long understood from the deceased, that she would inherit some farmland, but the provisions of the will were inconsistent with that understanding;
  6. The daughter suggested that the provisions of the will showed confusion by the deceased. For instance, the daughter claimed that the deceased did not own a car at the time he executed the will, despite gifting it in the will.

Decision of the Court of Queen’s Bench:

After a full hearing, the daughter’s application was dismissed.

Certain will challenges can turn on a specific point of law. However, the outcome in Klassen Estate turned on the global factual background. Namely, the Court’s decision came down to the following evidence, which collectively provided clues as to what the testator had intended. These clues included the following:

  1. Shawush determined also that the deceased was “able to function at a very good level;”
  2. The Executor, who had nothing to gain by the terms of the will, noted that the deceased had some memory loss, but functioned well;
  3. The deceased told the Executor several times of his wish to leave his farmland to the daughter in law and her family (which is precisely what the 2015 will did);
  4. The Executor described the deceased’s apartment as neat and tidy and he said the deceased was well-organized;
  5. The deceased consulted with his financial adviser about a new will. The financial adviser agreed to prepare the will as he was satisfied the deceased was aware of his financial affairs and property and the deceased was very clear about the persons that he wished to benefit under the new will;
  6. The financial adviser deposed that the deceased was clear that he wanted his real property to go to the daughter in law and her children and his remaining property to go to the daughter. Thus, while the deceased had memory problems, he otherwise functioned well. This evidence of the financial adviser and the Executor, showed detailed estate intentions by the deceased, and were consistent with the deceased having the capacity to understand his estate;
  7. The terms of the will were consistent with the deceased’s wishes for the land, dating back twenty years, according to his financial adviser.

Apart from these instances of positive countervailing evidence provided by the defender of the will, the court also noted certain weaknesses in the daughter’s own evidence.

  1. The daughter visited her father rarely (she lived out of province), so her opportunities to assess his condition and intentions were limited;
  2. While the daughter had a belief that she would inherit the farmland, she provided no real specific facts or instances to support that understanding;
  3. Finally, on the issue of undue influence, the daughter had adduced no firsthand or specific evidence of undue influence by daughter-in-law or by executor over the deceased. Moreover, there was no evidence to suggest that the daughter-in-law, or executor, was involved in preparing the will.

Lessons from Klassen:

Klassen is a reminder of just how “fact-based” challenges to wills can be. Many estate disputes do not contain “magic bullets”, or single pieces of devastating evidence which alone suffice to prove a testator’s intentions.

Rather, Klassen reminds us that many will disputes are generally won on careful gathering of evidence, to allow a court to draw inferences from the accumulated evidence. In Klassen, for instance, evidence was carefully assembled, such as in:

  1. The process of interview, and getting affidavits, from those who had spoken with the deceased regarding his estate intentions (e.g. for example, the evidence from the deceased’s financial adviser, etc).
  2. Looking for all prior acts or words of the deceased, which might show the new will as falling within a pattern of demonstrated intention (e.g. see the deceased’s actions in selling the quarter sections of farmland to the son and daughter-in-law, and his choice to leave the farm in the care of the daughter-in-law)

The evidence compiled thus showed that the terms of the will were consistent with the deceased’s longstanding wishes to leave farmland to daughter-in-law and her family.

While no single piece of evidence in Klassen made the difference, together they showed a portrait of a testator, who had always intended to gift his farmland to his daughter in law. Parties involved in a will challenge, should make a global assessment of all available evidence, before starting off on their challenge, or, their defence.

 

 

 

 

 

Contacting a Lawyer on this Subject

For more information on this subject or specific legal advice, contact James Steele at 1 306 933 1338.

The above is for general information only. Parties should seek legal advice prior to taking action in specific situations. For more information or for specific legal advice, please contact James Steele at 1 (306) 933-1338 and j.steele@rslaw.com.

 

Robertson Stromberg LLP offers legal advice and representation in all areas of law, including experience in estate litigation.

Area of Expertise Succession Planning