Carlson v. Carlson Estate case comment

This article offers an overview of the 2018 Saskatchewan decision in Carlson v. Carlson Estate, 2018 SKQB 196.

Carlson reminds us of the importance of preserving evidence of just how “voluntary” a will is. If, in contrast, a particular beneficiary of the will is seen to be too involved in the will’s creation, such impression might lead a court might conclude that there is an issue of potential undue influence.

Background

This involved a testator, Mabel Carlson, who had executed a will in 1975. This will named one of her children, Brian, as executor. It left her estate property to the testator’s children equally, if her husband  predeceased her.  Some later codicils were executed by testator over the years, but they did not otherwise affect the estate’s distribution of property.

In 2011, Mabel executed a radically different will, naming another child Warren as executor, and leaving bulk of her estate to Warren. $1,000.00 went to each of her grandchildren.. The testator also executed a power of attorney, making Warren and his wife the testator’s representatives. The testator also made Warren a beneficiary of her retirement income fund.

After the testator died in 2017, Warren proceeded to probate the 2011 will. Upon finding out that Mabel’s will had changed substantially, Brian brought the within application for an order directing a trial. Brian’s application focused on two issues:

  •  Whether Mabel was competent to execute the 2011 will; and
  •  Whether there was undue influence exerted on Mabel in the execution of the 2011 will.

Decision of the Court of Queen’s Bench

Brian’s application challenge the will was granted in part. It was found that a trial regarding undue influence should proceed.

The Court of Queen’s Bench began by noting the purpose of the court’s role, whenever a will is challenged. Brian had applied for an order that the 2011 will be proven in solemn form. Such an order would necessitate a long and expensive trial on the will’s validity.  To justify this, an applicant like Brian must, at the first hearing, establish that there is a genuine issue to be tried.

In other words, the “first hearing” stage of a will challenge is to weed out those cases which do not raise a genuine issue. By weeding out these meritless challenges, such avoids unwarranted delays in the distribution of an estate.

Should be a trial on the issue of Mabel’s capacity?

Thus, the question was – did Brian’s evidence point to some fact which, if accepted at trial, would tend to negative testamentary capacity, or support a finding of undue influence.

On capacity, the Court dismissed this first ground of challenge. The Court turned to the evidence of the attending solicitor, who drew up the 2011 will. The lawyer, Mr. Peet gave evidence which was summarized by the Court below:

34      Given the detail with which Mr. Peet attests to Mabel’s understanding of the extent of her estate and the beneficiaries, I find that Warren has provided the evidence required to overcome the suspicion with respect to testamentary capacity. I am persuaded through the uncontradicted evidence of Mr. Peet that Mabel understood the extent of her estate and who might benefit therefrom. Mr. Peet had taken instructions from Mabel a number of years earlier and on more than one occasion. In May of 2011 there was no confusion regarding who the members of her family were, what her property consisted of or how a distribution would operate.

[emphasis added]

As there was sufficient evidence that Mabel had testamentary capacity when she signed the disputed will on May 20, 2011, there was no genuine issue to be tried regarding capacity.

Should there be a trial of the issue of whether Mable was subject to undue influence?

That left the issue of undue influence. The Court defined undue influence, as being “coercion; pressure if exerted so as to overpower the volition without convincing the judgment.”[1]

The Court noted that undue influence can usually be discovered by examining the circumstances leading up to the preparation of the will, or by looking at the relationship that existed between the testator and beneficiaries.[2]

The Court found that the attending solicitor who drew Mabel’s 2011 will, had not offered detailed evidence on the issue of how voluntary Mabel’s 2011 instructions had been.

To the contrary, Mabel’s sister-in-law, provided an affidavit. It referred to Mabel becoming more dependent on others as she aged, and becoming more easily influenced as a result. The sister-in-law had witnessed Warren demanding that Mabel sign a document without allowing her to read it, and Mabel reluctantly complying after what she described as “his constant demands.” There was also evidence that Warren became “very controlling of which family members could visit” Mabel.

From this and other evidence, the Court found that there were suspicious circumstances relating to the issue of undue influence:

26      I find that there are suspicious circumstances here. These include that Warren brought Mabel to Mr. Peet’s office where there was a change in course of a dramatic nature regarding Mabel’s testamentary dispositions completely in Warren’s favour. Mabel went from scrupulously including all of her living children in 1975 through to 2001 to removing all of them except Warren in 2011. The purported cause of this was a belief that the remaining children were “millionaires”, based on what Mabel reportedly told Mr. Peet, yet there is no evidence this is true.

48      …I therefore find that the suspicious circumstances and accompanying evidence, some of which postdates the May 2011 attendance at Mr. Peet’s office, have not been rebutted by the evidence provided by Warren. There is a genuine issue requiring a trial with respect to the issue of influence Warren had on Mabel and whether her choices were that of someone who exercised free and voluntary decision making in the circumstances of this matter.

In short, there was a genuine issue for a trial. It was whether undue influence was exerted on Mabel.

Given this, the Court ordered a trial in relation to the issue of undue influence regarding Mabel’s will executed in May of 2011.

Lessons from Carlson:

Carlson reminds us of the important role played by the solicitor who prepares a will. Such solicitor interacts with the testator, at the time most critical to assessing capacity. The observations that said solicitor does, or does not note down, can prove all the difference.

Specifically, Carlson reminds us that solicitor should ideally take notes demonstrating just how “voluntary” the testator’s instructions were. For example, such evidence can be obtained by simply asking the testator such questions as the following:

  1. Whose idea was it, for you to prepare this (new) will?
  2. Why are you deciding to make these specific gifts?
  3. (If the new will contains dramatic changes from an older will) Why are these changes being made now?
  4. Has anyone tried to influence or pressure you, on the issue of your will?

All these questions (and their answers) would be discussed between the lawyer and the testator, in total privacy. Things like how the testator answers, including body language, or hesitancy, may also be recorded.

Carlson also emphasizes things that beneficiaries themselves seek to avoid doing. Specifically, a beneficiary should avoid any role in the creation of a will (even the act of accompanying  the testator to a lawyer’s office, or arranging appointments, etc). While such acts may be well intentioned, if they arise in the context of a radically new will, any challenge to that will, may seek to characterize these acts as “suspicious.”

 

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 specific 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 significant experience in estate litigation.

Copyright 2018 by the author. All rights reserved. Reproduction of any material herein without permission of the author is prohibited.

 

[1] See Sample, Re (1955), 15 W.W.R. 193 (Sask. C.A.) (WL) at para 13.

[2] See Lamontagne v. Lamontagne (1996), 150 Sask. R. 85 (Sask. Q.B.) at para 30.

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.

Karpinski v. Zookewich Estate Case Comment

This article offers an overview of the 2018 Saskatchewan Court of Appeal decision in Karpinski v. Zookewich Estate, 2018 SKCA 56.

Karpinski offers helpful reminders to parties who wish to challenge a Will based on a concern that the testator was subjected to undue influence. Namely, Karpinski reminds parties that while certain “general” concerns may be genuinely troubling to them as a family member of the deceased, such unease may not provide the actual “evidence” required to convince a court.

Introduction:

The deceased (Ernie) had died in his early eighties. Ernie had been a lifelong bachelor and had two siblings, a brother (Ed) and a sister (Mary). Ernie worked hard in his life, and at his death in 2016, he owned eleven quarters of farmland.

The deceased made a Will dated April 12, 2006, in which he appointed his sister and her husband, as the executors and sole beneficiaries of the estate. In particular, the Will stated that:

As I have not left anything to my brother [Ed], I wish to confirm that the reason for doing so is because I feel my brother is well off and has no need for further funds or assets. I also ask my sister Mary and her husband Al to give consideration to sharing my estate bequeathed to them herein, with their children and grandchildren.

The year before Ernie died, Ed discovered that Ernie was living in a nursing home. Ed later said that Ernie told him that this was Mary’s decision and not Ernie’s own. It was also at this time that Ed became aware that an auction of farm equipment was taking place at the family farm. It appears that this auction led to considerable friction in the family, as Ed believed Ernie still owed him $55,000 for co-owned equipment Ed had left behind on the farm.

According to Ed, when he spoke to Ernie about this, Ernie stated that he would pay Ed the money he owed and that all of his nieces and nephews were to have a share in his estate. Ed also stated that on multiple occasions, Mary was present when Ernie said that he was giving all of his assets to his nieces and nephews, including Ed’s daughter, Christine.

Ed decides to challenge Ernie’s Will:

When Ernie died, his Will left all to Mary and her husband, Al. Ed brought an application to make Al and Mary prove the Will in solemn form (i.e. to incur the full delay and expense of a trial, which would prove the will was the voluntary and capacitated result of Ernie’s wishes). Ed argued that Mary and Al, had exerted pressure on the deceased, when Ernie made his will.

The Court of Queen’s Bench decision:

The matter went to a hearing before the Queen’s Bench judge in Chambers. In the resulting decision (reported at Karpinski v. Lozinski , 2017 SKQB 278 (Sask. Q.B.)), the Chambers judge denied Ed’s challenge.

The Chambers judge first set out the test for dealing with Will challenges. Namely, the challenger must “point to some evidence which, if accepted at trial, would tend to negative testamentary capacity or support a finding of undue influence” (see Bachman v. Scheidt, 2016 SKCA 150, [2017] 2 W.W.R. 301 (Sask. C.A.) at para 16).

The Chambers judge also noted that the court, in looking at the evidence, should focus on the evidence dating from the time of when the deceased actually executed the Will. Here, the Chambers judge stated that the best evidence came from his lawyer’s file and preparation documents (as these documents were obviously made at the same time as the Will).

Regarding this evidence, the Chambers judge stated:

[34] … There is nothing in the file to suggest any concern with respect to testamentary capacity, and indeed there was an execution by Mr. Kyba [the lawyer who drew Ernie’s Will] of a certificate that provided the testator had the capacity to understand the nature and effect of the Power of Attorney he was signing. That is not to say that the requirements of capacity for a Power of Attorney are the same as the requirements for capacity of a Will. It does, however, go a long way towards the question of capacity.

Ultimately, in dismissing Ed’s arguments of undue influence, the Chambers judge held:

  • Statements made by Ernie years after the execution of the Will did not raise a question of suspicious circumstances at an earlier time of signing the Will;
  • Despite Ernie’s mental or educational deficiencies as alleged by Ed, Ernie was able to run a successful farming operation from 2007 until 2016 without any apparent assistance. That suggested Ernie had enough sophistication to understand the contents of his (paras 36-40 of the Chambers’ decision);
  • When it came to the issue of undue influence, the Chambers judge held that the actual direct and firsthand evidence before him did not support a finding that Mary or Al had exercised any undue influence at the time of the Will. Further, any contradictory evidence regarding certain events that occurred years after the signing of the Will was “peripheral” to the issues in this application.

Decision of the Court of Appeal:

Ed appealed this decision. However, the Court of Appeal dismissed the appeal, on the same grounds as the Chambers judge.

Ed’s argument on undue influence:

First, and most importantly, the Court of Appeal held that the Chambers judge had appropriately rejected the argument of undue influence. The evidence put forth by Ed failed to point to any firsthand evidence of manipulation, coercion, or an abuse of power by Mary and Al over Ernie. Specifically:

  • Ernie’s lack of education and sophistication did not prevent him from running a successful farming operation from when his father died in 2007 to the date of his death without any assistance. The farming operation forms the basis for the substantial assets that Ernie accumulated during his life (paras 36, 40 and 44 of the Chamber’s decision);
  • There was no firsthand evidence to support Ed’s contention that Mary and Al exerted such control over Ernie that his will was overborne “so that in truth what he or she does is not his or her own act” (para 45);
  • There was no evidence to support the notion that Mary prepared Ernie’s Will (para 46);
  • The evidence from Ed, that Ernie advised them that his intention was to benefit all his nieces and nephews in his Will, was not probative evidence of any undue influence at the time of the making of the Will. After all, the Will had occurred years prior to this stated intention (para 47);
    • Ed’s contention that Ernie did not like Mary’s husband was Ed’s subjective opinion only and does not support evidence of actual exertion of undue influence (para 48).

Ed’s argument that the Chamber’s judge failed to consider Ernie’s “requisite knowledge and approval of the Will”:

Second, Ed argued that the Chambers judge erred when he only examined the issue of testamentary capacity, instead of also whether Ernie had the requisite knowledge and approval of the Will’s provisions.

The Court of Appeal found that the Chambers judge had in fact considered the issue of knowledge and approval in his analysis. The Court of Appeal pointed to the following passage from the Chambers’ decision:

… None of the circumstances alleged by the applicant create suspicion in the mind of the Court that Ernie knew and approved [sic] the contents of his Will. The cumulative effect of the arguments made in this regard do not advance the notion that a genuine issue to be tried exists with respect to testamentary capacity.

[Emphasis added, by the Court of Appeal]

Even if the Chambers judge had only examined the issue of testamentary capacity as alleged by Ed, the presence proof of Ernie’s capacity, combined with execution, was enough to discharge the burden of validity. This was since the testator’s knowledge and approval will, in this case, be presumed by a court.

To this, Ed argued that, since Mr Kyba, the lawyer, had predeceased Ernie, there was no actual proof that the Will was read over by Ernie and that Ernie understood it.

However, the Court of Appeal held, even though there was technically no sworn evidence that Ernie had either the Will read to him or had read it over, the Chambers judge noted the following facts, as tending to confirm Ernie’s knowledge and approval of the contents of the Will:

  • Ernie met with Mr. Kyba on April 10, 2006, and April 12, 2006 — the first meeting was to provide instructions relating to both his Last Will and Testament and his Power of Attorney;
  • The notes of Mr. Kyba essentially mirror the contents of Ernie’s Will and, in particular, the notes contain the same clause leaving nothing to Ed that is the subject of this dispute; and
  • Mr. Kyba had the opportunity to observe Ernie twice and signed the Independent Legal Advice and Witness Certificate for the Power of Attorney with respect to Ernie’s capacity to understand the nature and effect of the Power of Attorney.

Ed’s argument on the Doctrine of righteousness

Finally, Ed’s appeal also attempted to rely upon the doctrine of righteousness. This doctrine was outlined in a 1934 decision of the Supreme Court of Canada in Riach v. Ferris, [1934] S.C.R. 725 (S.C.C.) at 730-731, quoting from an even older English decision in Fulton v. Andrew (1875) L.R. 7 H.L. 448, at 471-2. In Fulton v. Andrew, the House of Lords had described the doctrine of righteousness as follows:

There is one rule which has always been laid down by the Courts having to deal with wills, and that is, that a person who is instrumental in the framing of a will, and who obtains a bounty by that will, is placed in a different position from other ordinary legatees who are not called upon to substantiate the truth and honesty of the transaction as regards their legacies. But there is a farther onus upon those who take for their own benefit, after having been instrumental in preparing or obtaining a will. They have thrown upon them the onus of shewing the righteousness of the transaction.

[emphasis added]

In other words, if you are a beneficiary of a will, and are also instrumental in preparing or obtaining a will, you will bear the burden to show evidence of the validity of that Will.

However, the Court of Appeal dismissed this argument. First, the Court of Appeal noted certain academic commentary that the doctrine of righteousness “appears to be falling from judicial vogue.” Moreover, in any event, the Chambers judge had found that Mary had not given instructions for the preparation of the Will, nor was she involved in its execution.

Thus, as Mary was not instrumental in the generation of Ernie’s Will, and there were no suspicious circumstances, the doctrine of righteousness was not even triggered in this case.

Ed’s appeal was dismissed. The Will was permitted to proceed to probate, as Ed’s challenge had been dismissed.

Lessons offered by Karpinski v. Zookewich Estate

What can we learn from Karpinski v. Zookewich Estate? One primary take-away, is a reminder of just how high a burden will rest on someone who is alleging “undue influence.” To recap, undue influence involves one person taking advantage of a position of power over another (often vulnerable or elderly) person. If a person has pressured a person in the making of their Will, so that the resulting terms are not the voluntary wishes of the testator (i.e. undue influence), the Will is invalid.

However, in the context of challenging a Will, courts will require first hand and compelling evidence of undue influence. This presents a practical problem – how often can you find direct evidence of acts of coercion? Such acts generally, if they occur, would take place in private.

This question of gathering actual evidence of undue influence, was central to Karpinski. Certain potential facts legitimately caused a family member concern. For instance, Ed was concerned by comments that Ernie allegedly made, suggesting that Mary had prepared his Will. Or, Ed was likely concerned by how much the actual Will, departed from Ernie’s apparent intention to gift part of his property to all his nieces and nephews.

However, from a legal perspective, these facts did not rise to the level of direct and clear evidence of actual instances of coercion exerted by Mary and her husband. Moreover, they were rebutted by the compelling evidence of the notes taken by Ernie’s independent solicitor, which showed that Ernie had authored his own Will, without Mary’s involvement, etc.

To summarize, parties considering challenging a Will, should therefore pause to reflect whether their “general” concerns of how a testator may have been coerced, will actually provide a court with affirmative evidence, of “specific” acts of improper pressure actually committed on specific dates, locations, etc.

….

Contacting a Lawyer on this Subject

For more information on this subject or specific legal advice, contact James Steele at 1 306 933 1338 and j.steele@rslaw.com

The above is for general information only. Parties should seek legal advice prior to taking action in specific situations.

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

Copyright 2018 by the author. All rights reserved. Reproduction of any material herein without permission of the author is prohibited.

 

 

Legal “Standing” to Challenge a Will

This articles offers an overview of the 2018 Court of Appeal decision in Olson v. Skarsgard Estate, 2018 SKCA 64.

Olson offers an important reminder to parties involved in estate litigation. Namely, one should always check to make sure you have the legal “standing” to formally challenge a Will.

 

Background:

Olson involved the estate of a deceased, who had been a successful farmer. The deceased had been diagnosed with terminal esophageal cancer in October 2015. The deceased married his long time partner a few months later in March 2016. The deceased had already had a child with his partner previously, and they had been co-habiting together as a couple for a lengthy period of time.

The deceased then made his last will and testament appointing his wife as the executor and as the sole beneficiary of the estate. The deceased died mere months after his marriage, in May 2016. His wife applied for letters probate of the will, which would leave her the estate.

The deceased’s sister opposed the probate application and disputed the nature of the relationship between the deceased and his wife. The sister also claimed that her brother was not the father of the wife’s daughter. The sister applied for an order for proof in solemn form, which would require that the wife formally prove the validity of the 2016 will in a trial. This type of application requires a challenger – the sister – to present evidence showing a “genuine issue” with the will’s validity.

In response to these allegations, the wife responded by presenting clear evidence of her long relationship with the deceased, which went back some 16 years. As well, the lawyer who prepared the will swore an affidavit as to his involvement in that process, and his observations of the deceased at that time. The lawyer stated that he had had no concerns about the deceased’s capacity to instruct him or to execute the will.

Other evidence also indicated the deceased had publicly acknowledged his common law relationship with his wife, and had acknowledged the daughter as his own daughter as early as 2005. The evidence adduced by the wife also included an earlier holographic will executed on November 21, 2015, under which the deceased would also have left his entire estate to his wife and her three children.

Decision of Court of Queen’s Bench.

In the Court of Queen’s Bench, the Chambers’ judge rejected the sister’s challenge to the will. Put simply, no “genuine issue” regarding the will had been demonstrated. The Court found that the deceased and his wife had cohabited for two years or more before marriage. There was compelling evidence showing the validity of this marriage, and showing the spousal relationship, and the paternity of the child.

Given this evidence, the Chambers judge found there was “absolutely no evidence” showing that the deceased’s marriage was invalid.  As such, there was no triable issue with respect to testamentary capacity, or any other ground that might impugn the validity of the will.

Secondly, however, the Chambers’ judge made another important procedural ruling. Namely, the Chambers’ judge found that the sister did not have the “standing” to challenge the will.  Namely, even if the challenged will was found to be not valid, the deceased still had a valid wife, and a daughter who would have inherited his estate. Thus, the sister was not in a position to be affected by the question of whether the 2016 will was found valid, or not. She consequently had no standing to bring the challenge.

Having made these determinations, the Chambers’ judge then turned of the issue of what costs the court should award. As the wife had been successful, the Chambers’ judge ordered the sister to pay the solicitor-client costs of the wife. Orders for “solicitor-client costs” require a losing litigant to pay the full amount that a winning party has paid to their lawyer. Orders for “solicitor-client costs” are relatively rare, as most lawsuits in Saskatchewan see a winner receive only a partial percentage of their fees from the losing party.

In justifying this exceptional award, the Chambers’ judge relied on the fact that the sister “had neither standing nor valid justification for causing delay and expense to her brother’s widow and her children”.

Decision of the Court of Appeal

  1. Who has “standing” to challenge Wills?

The sister appealed. That brings us to the Court of Appeal decision in Olson v. Skarsgard Estate.

The Court of Appeal agreed with the Chambers’ judge, and found that that the sister lacked standing to seek proof of will in solemn form.

The Court began by quoting Rule 16-46 of the Saskatchewan Queen’s Bench Rules, which describes who may apply for proof of a will in solemn form:

16-46 A person who is or may be interested in the estate of a deceased person may give notice for the will to be proven in solemn form.

[emphasis added].

The Court of Appeal surveyed numerous Canadian decisions. From this authority, the Court of Appeal held that standing was granted to any challenger who could show they were:

A beneficiary under the disputed will in question;
An executor or beneficiary under any potentially valid testamentary instrument (which instrument might be upheld, if the challenged will were to fail);
and
Any person who would be entitled under a resulting intestacy, if the challenged will were held invalid.

The Court of Appeal made clear that the onus to show standing lies on a challenger:

21      In each case, the court must determine whether a person “is or may be interested in the estate of a deceased person” on the basis of the evidence adduced. This means a person who seeks to have a will proven in solemn form bears the evidentiary and persuasive burden of establishing that he or she has standing to do so. That is, the person must present enough evidence to satisfy the court that he or she is or may be interested in the estate. For example, a person claiming to have an interest in an estate if it were administered in intestacy would have to adduce evidence sufficient to establish a relationship to the testator that satisfies the foremost applicable rule under the hierarchy of rules of succession set out in The Intestate Succession Act, 1996, SS 1996, c I-13.2. Regardless of the context, a person seeking to have a will proven in solemn form must do more than merely assert that they have or may have an interest in the estate. They must adduce evidence sufficient to support that inference.

[emphasis added]

Here, the Court of Appeal held that the sister did not show evidence demonstrating all of the following:

That the deceased’s legal marriage to the deceased might be invalid;
That the deceased and the wife might not otherwise be spouses within the meaning of The Intestate Succession Act, 1996; and
That the deceased might not be the biological father of his daughter.

Only if all three of these findings had been shown to the Chambers judge, would it be possible to conclude that the sister might be the deceased’s sole surviving next-of-kin, and thus possessed of “standing”. Moreover, even then, the sister would still have had to show evidence of a genuine issue surrounding the will’s validity (which the sister did not).

In the result, therefore, the sister had no direct relationship to the deceased’s estate, as to confer standing on her.

 

Should solicitor-client costs be ordered, without proof of scandalous litigation conduct?

The Court of Appeal did offer a partial victory to the sister. As a reminder,  the sister had been ordered in Chambers to pay the wife’s entire costs. On appeal, however, the Court of Appeal declared that this award of solicitor-client costs had not been appropriate.

The Court of Appeal referred to the traditional principles governing orders of solicitor-client costs. These were: [1]

  1. Solicitor and client costs are awarded in rare and exceptional cases only;
  2. Solicitor and client costs are awarded in cases where the conduct of the party against whom they are sought is described variously as scandalous, outrageous or reprehensible;
  3. Solicitor and client costs are not generally awarded as a reaction to the conduct giving rise to the litigation, but are intended to censure behavior related to the litigation alone;
  4. Notwithstanding point 3, solicitor and client costs may be awarded in exceptional cases to provide the other party complete indemnification for costs reasonably incurred.

The Court of Appeal noted prior Saskatchewan authority which made clear that:

[48] Solicitor-client costs must not be awarded casually and, in my view, never without reasons as to why they are being awarded and an identification of the conduct which is said to warrant them. The Chambers judge should have offered a clear explanation as to his perceived basis for awarding solicitor-client costs. He did not do so.[2]

Here, there was nothing to suggest sister acted improperly in the litigation, or outrageously or reprehensibly. While her challenge lacked merit, that was not a reason to order solicitor-client costs. Rather, solicitor-client costs should be awarded because of procedural “behaviour related to the prosecution or defence of a claim.”

As such, the award of solicitor and client costs was set aside, and in its place was substituted an award of party and party costs (meaning, the sister only had to pay the tariff (partial) costs of the wife).

 

 Lessons offered by Olson v. Skarsgard Estate

Olson offers an reminder of the importance of “standing.”   Standing is the ability of a party to show a sufficient connection regarding a given legal dispute, as to justify that party’s participation in that lawsuit.

As such, “standing” is a key threshold inquiry for any party to make. Emotions can run high in estate matters, and a party might be immediately driven by a sense to proceed to court, in order to “right the wrongs” perceived in a given will, etc. However, any party should take a moment to first ask, whether they are indeed within that category of people who can legitimately make such a legal challenge. A basic first question might be put as follows – ask what will happen if you successfully overturn a given will. If you then stand to inherit, you likely have standing. If you do not, you may be best advised not to commence a formal legal challenge.

 

 

 

 

 

 

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 specific 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.

Copyright 2018 by the author. All rights reserved. Reproduction of any material herein without permission of the author is prohibited.

 

_____________________________

[1] See Siemens v. Bawolin, 2002 SKCA 84 at para 118

[2] Hope v. Pylypow, 2015 SKCA 26, 457 Sask. R. 55.

Negligent but not Liable

One of the key ways in which risk is allocated on a construction project is through insurance, typically in the form of builder’s risk, course of construction, or “all-risk” property policies. In most cases, the responsibility for obtaining insurance coverage is set out in a parties’ construction contract. It is common for these contracts to require a policy holder to add others, such as the owner or a subcontractor, as named insureds, which then affords this party the benefit of coverage. By ensuring all parties can be indemnified by a common insurer, there should be, in theory, less disputes over who is responsible for a loss on a construction project when such a loss occurs, which should allow construction projects, even in the event of loss, to proceed in a timely manner.

In Jacobs v. Leboeuf Properties Inc., an Ontario court had an opportunity to consider who should be responsible for a loss, on a construction project, when the owner fails to obtain the insurance coverage stipulated in the prime contract.

The basic facts of Jacobs were as follows:

1. The Owner executed a contract with a General Contractor to demolish and replace a residential property located in the City of Toronto.

2. The Prime Contract stipulated that:
The Owner shall purchase and maintain property . . . insurance in a form acceptable to the Construction Manager upon the entire Project for the full cost of replacement as of the time of any loss. This insurance shall include, as named insureds, the Owner, the Construction Manager, Trade Contractors, and their Trade Subcontractors and shall insure against loss from the perils of Fire, Extended Coverage, and shall include builder’s risk insurance for physical loss or damage including, without duplication of coverage, at least theft, vandalism, malicious mischief, transit, collapse, and where applicable, flood, earthquake testing, and damage resulting from defective design, workmanship or material. . .

3. The Owner did not include the General Contractor as a named insured.

4. Although it appears the demolition work scope was completed without issue, the Owner alleged that there were numerous issues with the workmanship of the General Contractor, which caused the Owner to suffer property damage.

5. Ultimately the Owner sued the General Contractor, alleging that the General Contractor was responsible for paying the Owner the costs incurred to correct this property damage.

6. The General Contractor then brought a court application to dismiss the lawsuit on the basis that the costs the Owner was claiming should have been covered by the Owner’s property insurance policy and, more particularly, on the basis that the General Contractor was supposed to be included as a named insured under that policy.

7. In response, the Owner argued that even if it had obtained a builder’s risk policy, the type of property damage that occurred would have been excluded from coverage.

Ultimately the Court agreed with the General Contractor and dismissed the Owner’s action. According to the judge, the Owner had clearly agreed to obtain a builder’s risk policy indemnifying the parties, including the General Contractor, from “damage resulting from defective design, workmanship or material”. The fact a “hypothetical” insurance policy may not have covered the loss was not important. Rather, by failing to obtain insurance, the Owner had voluntarily assumed the risk of loss. As such, even if the General Contractor was negligent, it could not be held liable. Jacobs is a timely reminder for both owners, as well as general contractors, who in many cases are responsible for obtaining builder’s risk policies, of the importance of ensuring that contract provisions, relating to who must obtain insurance as well as who must be added as an insured under an insurance policy, are followed.

Download Jared’s article here.

Case comment on Figley v. Figley

This article provides a Saskatchewan estate litigation update, offering a brief synopsis of the 2018 Saskatchewan decision in Figley v. Figley, 2018 SKQB 102, 21 C.P.C. (8th) 149.

Figley v. Figley reminds estate litigators of the important “wills exception” to solicitor-client privilege, which can ensure key solicitor records are producible, as long as they relate to the intention of a testator.

This case arose out of the estate of Ray Kenneth Figley, who died on October 4, 2007. Eugene Figley, as plaintiff, was attempting to probate what purported to be the Last Will and Testament of Ray Figley (the “Will”). Ronald Figley and Stanley Figley opposed probate, disputing the testamentary nature of the alleged Will.

Ronald Figley requested a court order, allowing Ronald to question a local lawyer (not a party to this action) who had been a witness to the Will now being probated. Ronald Figley requested a court order, first, to examine the lawyer, and second, to obtain certain documents from the lawyer, relating to the preparation and execution of the Will.

The Court’s decision

On the first request to orally question the third-party lawyer, the Court looked to Rule 5-20 of the Saskatchewan Queen’s Bench Rules. This rule outlines when a court will order the questioning of a third-party. The critical wording in the Rule, is underlined below, for emphasis:

5-20(1) The Court may grant leave to question any person who may have information relevant to any matter in issue in the action, other than an expert engaged by or on behalf of a party in preparation for contemplated or pending litigation.

(3) An order pursuant to subrule (1) must not be made unless the Court is satisfied that:

(a) the applicant has been unable to obtain the information from other persons whom the applicant is entitled to question or from the person the applicant seeks to question;

(b) it would be unfair to require the applicant to proceed to trial without having the opportunity of questioning the person; and

(c) the questioning will not:

(i) unduly delay the commencement of the trial of the action;

(ii) entail unreasonable expense for other parties; or

(iii) result in unfairness to the person the applicant seeks to question.

            [emphasis added]

 

Rule 5-20(3) says that before a person can question a third-party, the person seeking to question, must first have been “unable to obtain the information from other persons whom the applicant is entitled to question.”

Here, the Court found that the applicant, Ronald, had apparently not made such efforts. Ronald had previously had the chance to question Eugene Figley, in Eugene’s capacity as the purported executor of the estate. Eugene Figley would have been obliged in such questioning, to inform himself of the discussions that the deceased had with his lawyer surrounding the Will, including documents prepared by the lawyer.

However, in that previous questioning opportunity, Ronald Figley did not ask any questions of Eugene Figley to attempt to obtain this information. Thus, Ronald had not satisfied this precondition. Ronald’s application to question the third party lawyer, failed on this basis.

This then left the second part of Ronald’s application. It was a request for an order requiring the local lawyer, as a non-party, to produce certain documents relating to the Will’s execution.

The Court consequently turned to consider Rule 5-15:

 

5-15(1) On application, and after notice of the application is personally served on the person affected by it, the Court may order the production of a document from a person who is not a party at a date, time and specified place if:

(a) the document is in the possession, custody or control of that person;

(b) there is reason to believe that the document is relevant to any matter in issue; and

(c) the person who has possession, custody or control of the document might be required to produce it at trial.

            …

The third-party lawyer had resisted the application, noting the sanctity of the solicitor-client relationship, and the privilege that attaches to documents surrounding the making of the Will.

However, the Court rejected any defence of privilege. The Court noted the decision in Geffen v. Goodman Estate, [1991] 2 S.C.R. 353 (SCC), and other Canadian case law. In such previous decisions, Canadian courts had established a so-called “wills exception” to privilege. The principled basis for such an exception, was that if privilege were automatically upheld, such would prevent a court from seeing documents which could shed light on the true intention of a testator’s intention over their estate. As such, the lawyer’s documents were ordered disclosed.

Lessons from Figley:

Figley emphasizes a useful tool available to parties involved in disputes over a Will’s validity. Namely, a key source of evidence of a deceased testator’s intentions, or voluntariness, can sometimes be found in the lawyer’s documents which were created when a Will was made.

Such documents would ordinarily be privileged, but are subject to a “wills exception.” This means that if the documents are capable of showing a deceased’s intentions for their estate, they may be produced to shed light for a court. As such, parties should consider if such documents exist in their Will dispute, and may wish to take steps to determine their contents. As shown in Figley, it may be that a formal court application is required, however.

 

 

 

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.

 

Articles & Research, Estate Litigation, James D Steele