Saskatchewan Estate Litigation Update: Nicklen Estate, 2021 SKQB 208

The recent Saskatchewan decision in Nicklen Estate offers a reminder of the importance of making changes to your will while you still can. If you draft “notes to self” but postpone actual changes to your will, it may be too late.

Background

A will was executed by the deceased, Albert Edward Nicklen [Edward], on February 5, 2013. The Will was prepared by a lawyer, and the Will was valid.

However, there was also another, later document – a NAPA Auto Parts receipt. On the back of this receipt, Edward made some handwritten notes with respect to certain property.

The receipt states as follows:

I gave William Nicklen N.E. 1 52 15 W2 and give Ab Letkeman and Bev Seykora each $20,000 at little each year.

Sold CAT to Rodge the person I sold 830 John Deere to same person cash paid for $15,000 made the CAT. CAT not paid.

And gave my ½ share.

All on my will.

Albert Edward Nicklen:

Owner

The changes embodied by this receipt, if found valid by a Court, would impact the distribution of the Estate.

The executor named in the Will, Jeannette Wickstrom, gave evidence that on February 6, 2020, just ten days before Edward’s death, Edward showed her the receipt. At the bottom of the receipt, Jeannette wrote:

I Jeanette Wickstrom acknowledge that Albert Edward Nicklen showed me the changes that he wished to make to his Will on Feb 6, 2020. These changes are written on the back of this Napa receipt dated August 14 2019 in his own handwriting.

Although the Document contains Edward’s full name, it was printed but was not signed by him in cursive writing.

The issue was whether this was a valid codicil. Certain of the beneficiaries believed the handwritten document was a “codicil”, to be read hand‑in‑hand with the Will.

The other beneficiaries believed the NAPA receipt contained mere notes that were jotted down by Edward on a scrap piece of paper, as a reminder to himself of changes he wanted to make to his Will. But, they argued, Edward had crucially failed to make these changes before he died on February 16, 2020. Thus, the notes on the receipt were not testamentary in nature.

The Issue

The issue was whether the NAPA receipt was a valid testamentary document, and should be probated in conjunction with Edward’s Will? 

Was this receipt testamentary in nature?

The court ultimately held that the receipt was not testamentary in nature.

The Court first explained that the document did meet the prerequisites to be considered a holograph will pursuant to s. 8 of the Act. This was because the notes on the receipt were in the handwriting of Edward. The Court held that even printed (not cursive) signatures could be held to be a “signature”.

However, a review of all circumstances suggested to the Court, that the receipt was not a final expression of Edward’s testamentary intentions. The Court observed that a document must contain more than a fleeting expression of how the individual wishes his or her property to be disposed of after death. The document must represent a fixed and final expression of intention in relation to the disposition of property.

Here, the Court held that the receipt was not a fixed and final expression of intention in relation to Edward’s disposition of property.

  1. Edward had previously always used professionals to handle his affairs – lawyers for his legal matters and accountants for his income taxes. It was out of character for him to make handwritten notes on receipt. The fact that Edward had attempted to contact a lawyer in relation to changes to his Will very shortly before he died, suggested that he wished to change his Will but did not ultimately do so before he died;
  2. Second, Edward would usually sign a document in cursive writing and would not just print his name. It was also unusual for him to write on a scrap of paper. Rather, Edward liked to write on lined paper and always had a pad of lined paper with him. These facts suggested the receipt contained mere notes to draft, not a true intention to make a codicil;
  3. Jeanette’s note, written on the receipt, refers to the receipt as “changes that [Edward] wished to make to his Will”. This statement was prospective in nature. It speaks of a future intention. Thus, Edward had not yet made such final changes;
  4. Further,  Edward’s notations are unclear. He indicated in the receipt that he “gave” NE 01 to William, which speaks to the past. But then he also indicated that he “give[s]” $20,000 a little each year to Abe and Beverly, which speaks to the future. He referred to a piece of equipment that he had already sold but noted on the receipt that he was still owed money for that piece of equipment. The Court held the receipt was both prospective and retrospective and did not reflect a fixed testamentary intention.

As such, the Court allowed probate for the Will alone to proceed, but not for the receipt:

[58]  At the end of the day, based upon my review of the Document and the extrinsic evidence presented to me, they have not satisfied that burden. I have concluded that Edward’s notes on the Document represented changes he intended to make but he died before his intention came to fruition. At best, the Document was a “note to self” prepared by Edward.

Lesson

If someone wishes to make a change to their will, they should move as quickly as possible to see a lawyer, and make formal changes. To do otherwise, and simply rely on handwritten notes, gives rise to two problems. First, even if the Court finds the notes testamentary in nature, the informal nature of the notes will likely give rise to expensive litigation, which diminishes and delays the Estate. Second, there is also the even worse possibility, that the Court will find the notes are not truly testamentary. In such cases, the notes (and any intentions expressed on them) will be ignored.

Contacting a Lawyer on this Subject

James Steele’s preferred practise area is estate litigation, including will challenges, executor disputes, power of attorney issues, etc. Contact James Steele at 1-306-933-1338 or j.steele@rslaw.com. The above is for general information only, and not legal advice. Parties should always seek legal advice prior to taking action in specific situations.

Read more on our blog.

The Saskatchewan Estate Law blog is dedicated to providing practical, real-world information on Estate Law issues that affect Saskatchewan residents. The blog is written by RS lawyer, James Steele, whose practice focuses on estate litigation.

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Saskatchewan Estate Litigation Update: Fraser v Mountstephen, 2021 SKQB 192

The recent case of Fraser v Mountstephen offers reminder that not every irregularity with a Will can justify subjecting that Will to litigation.

Background

Blair Fraser died without children. He named a friend, Lori Ann Mountstephen, as Executrix. He left his entire estate to the children of Lori Ann. He left nothing to his siblings. Blair’s siblings suspected that Blair lacked testamentary capacity and/or was unduly influenced by the Executrix. A challenge was brought.

The background was this: after Blair’s father died in 2012, the respondent Executrix and her children spent more time at Blair’s farm assisting Blair in its operation. After Blair’s mother died in 2014 the frequency of that assistance increased. On March 10, 2018, Blair executed a Last Will and Testament before two witnesses: Garth Buitenhuis and Rodney Mountstephen. Rodney was the brother-in-law of the Executrix.

Blair’s will directed that his entire estate be distributed to the Executrix’s two children, Kaibry and Meranda.

Concerns raised in the challenge:

The challengers raised various concerns, including the below:

  1. Blair had had difficulties with school and failed to complete grade 11. Blair was also co-executor of his mother’s estate which took three years to administer. When asked about the delay Blair’s response was that it was “really hard”;
  2. Persons had commonly seen Blair to drink often, and often drinking heavily by 3 pm;
  3. The lawyer who did the will, Garth Buitenhuis, had not disclosed his will file notes.

Decision of the Court:

The Court summarized the factors to be considered when deciding whether suspicious circumstances are present (citing from Grosiak v Grosiak Estate2008 SKQB 232)

18  Therefore, when considering whether or not suspicious circumstances are present, the Court must look at the following factors:

(1) the extent of physical and mental impairment of the testator around the time the will was signed;

(2) whether the will in question constituted a significant change from the former will;

(3) whether the will in question generally seems to make testamentary sense;

(4) the factual circumstances surrounding the execution of the will;

(5) whether a beneficiary was instrumental in the preparation of the will.

The Court then went through each concern and found they failed to raise a genuine issue about capacity or undue influence. In particular:

  1. The evidence did not show that Blair in fact suffered cognitive difficulties, much less showed an inference that Blair’s cognitive difficulties impacted upon his testamentary capacity at the time he signed the will;
  2. At law, any established chronic and longstanding alcoholism of a testator was not sufficient to raise a genuine issue, unless there was medical evidence of alcoholism eroding capacity at the time the will was executed;
  3. The complaint about lack of disclosure of Garth Buitenhuis’s file was simply a fishing expedition, based more on what is unknown than known;
  4. The mere fact that a witness to the will (Mr. Mountstephen) was related to the executor, was not a suspicious circumstance and certainly was not probative evidence of undue influence. In any event, it is Mr. Buitenhuis’ uncontroverted evidence that Mr. Mountstephen witnessed the will at Blair’s specific request because Blair could not contact someone else to perform that role.

    The Court held that all the concerns were nothing more than “suggestions of irregularity”, which did not rise to the level of a genuine issue:

      [54]  In my respectful view, the circumstances raised by the applicants are nothing more than “suggestions of irregularity or evidence on peripheral points”. They do not, whether considered individually or cumulatively, constitute probative evidence on the issue of undue influence. Consequently, I find that the applicants have not convinced me there is a genuine issue to be tried on this issue.

      As such, the evidence offered did not raise a genuine question as to Blair’s testamentary capacity at the time he signed his will nor a genuine question as to whether he was unduly influenced to do so. 

      As such, the challenge was dismissed, and the executrix was given her tariff costs payable by the applicants.

      Lesson:

      Challengers must be careful to ensure they have direct evidence which strikes at the heart of whether a testator had capacity, or acted under coercion.

      The best evidence to challenge a will meets the following grounds;

      1. Stems from the precise time period in which the testator put his or her pen to the Will;
      2. Is not circumstantial, but rather is clear evidence showing that the testator may not have understood the Will, or wished to make it.

      Contacting a Lawyer on this Subject

      James Steele’s preferred practise area is estate litigation, including will challenges, executor disputes, power of attorney issues, etc. Contact James Steele at 1-306-933-1338 or j.steele@rslaw.com. The above is for general information only, and not legal advice. Parties should always seek legal advice prior to taking action in specific situations.

      Read more on our blog.

      The Saskatchewan Estate Law blog is dedicated to providing practical, real-world information on Estate Law issues that affect Saskatchewan residents. The blog is written by RS lawyer, James Steele, whose practice focuses on estate litigation.

      Saskatchewan Estate Litigation Update: Bryant Estate v Stuart, 2021 SKCA 54

      A recent case from the Saskatchewan Court of Appeal clarifies that a beneficiary who seeks an estate accounting is not required to show possible wrongdoing by the trustee before an accounting can be ordered.

        Background:

        The late Franklin Bryant was a beneficiary under his mother’s will.

        Franklin’s executor had concerns about how Franklin’s mother’s estate had been administered. This led Franklin’s estate to ask a Queen’s Bench Chambers judge to require the executrix of the mother’s estate to provide an accounting. The Chambers judge declined to make the order requested, in large part on the basis that there was no evidence of misconduct in the administration of the estate.

          Queen’s Bench decision:

          The Queen’s Bench judge first found that s. 35(1) of Administration of Estates Act did not apply here. Section 35 of the Administration of Estates Act only applied where there had a grant of letters probate or letters of administration. If probate was granted, an accounting was due within 2 years.

          Here, however, the Will of Franklin’s mother did not receive probate. As such, the Queen’s Bench judge found s. 35(1) to be inapplicable.

          Second, the Queen’s Bench judge seemed to suggest that an accounting should only be ordered when there was some suggestion of wrongdoing by the executor. The Queen’s Bench judge wrote as follows:

            [20] Just because the court has the inherent jurisdiction to order an accounting, does not mean it should. I want to be clear that there is no evidence before me that there has been misconduct such that an accounting is necessary. The applicant believes that an accounting will show what has happened to the Corporation’s assets but, as I have indicated, the assets of the Corporation did not pass through the estate of [the Mother]. At the hearing, it became apparent that the applicant was seeking information on his late father’s share in the Corporation that, upon his death, became part of his estate. An accounting of the administration of [the Mother’s] estate will not yield the type of information the applicant seeks. To the extent that the applicant wants information on how the executrix disbursed the bequests, much, if not all, of that was set out in her affidavit.

              Court of Appeal decision:

              The question on appeal was whether the Chambers judge erred in declining to order an accounting of the administration of Franklin’s mother’s estate.

              The Court held that an accounting should have been ordered. The court relied on section 55 of The Trustee Act, which provides as follows:

                55 (1) On the request of a beneficiary of the trust, or the beneficiary’s property attorney or property guardian, a trustee shall provide an accounting to the beneficiary.
                (2) If a beneficiary of the trust, or the beneficiary’s property attorney or property guardian, has been unable to obtain an accounting from the trustee in accordance with subsection (1), the beneficiary of the trust, or the beneficiary’s property attorney or property guardian, may apply to the court for an order directing the trustee to provide an accounting to the court or to the beneficiary.
                (3) Notwithstanding anything to the contrary in the terms of a trust, if a beneficiary of the trust or other interested person has requested information concerning the accounts of a trustee, and the trustee has refused to comply with the request in a reasonable and timely manner, the court may order the trustee to pass accounts in accordance with section 54.

                  Section 2(h) of The Trustee Act defines “trustee” to mean, among other things, “an executor or administrator”. 

                  The Court of Appeal held that s. 55 imposed an unavoidable obligation on a trustee to provide an accounting.

                    [33] In broad terms, it is entirely appropriate to understand s. 55(1) as imposing an unavoidable obligation on a trustee to provide an accounting. That kind of duty is consistent with, and reflects, the fundamental nature of the relationship between a beneficiary and a trustee. Being able to hold a trustee to account ensures that the trustee discharges its fiduciary obligations.

                    [40] In this case, it was entirely reasonable for Franklin’s estate to request an accounting. The following points inform my conclusion in this regard:

                      1. The Mother died in November of 2015. Her estate was not probated.
                      2. Christian averred that, notwithstanding many requests for a copy of the Mother’s will, Dorothy had refused to provide one. Dorothy responded by saying only that Christian had not asked “directly” for a copy of the will.
                      3. Dorothy averred that, prior to his death, Franklin had “received funds as a named beneficiary, or joint account holder”. However, she also said, “I am not aware of the particulars of these payments or amounts”.
                      4. Dorothy explained that the bulk of the Mother’s assets were “jointly held” and thereby were “automatically transferred to the name of the individual with who the assets were jointly held”. But, she provided no detail as to the nature of those assets or information about the individuals who had held them jointly with the Mother.
                      5. The only other bequests distributed to beneficiaries, according to Dorothy, were $2,000 for each grandchild, an amount that she averred had been personally delivered to Christian, and $1,000 for each of several designated beneficiaries (who were not identified), including Christian and his siblings. These funds were said to have come from an investment when it had matured. Christian takes issue with this and avers that he and his siblings received only $1,000 each.

                      Franklin’s estate was also held entitled to costs, payable by the Mother’s estate, in the usual way. If there were no assets in the Mother’s estate with which to pay costs, they were to be paid by Dorothy personally because, in the circumstances here, there was no reasonable basis for her to refuse the request for an accounting.

                        Lesson learned:

                        Bryant Estate makes clear that an accounting must not be lightly denied.

                        As per the clear language of s. 55(1), a beneficiary is entitled to an accounting as a matter of course on making a reasonable request. The beneficiary has no obligation to show cause or present a justification for that request.

                        The Court of Appeal did however clarify that frivolous requests for an accounting could be denied by the Court. Examples of frivolous examples could include the below:

                          1. A request for accounting that is made too closely on the heels of another accounting might be unreasonable on the basis that not enough time has passed;
                          2. Second, where the situation concerning the administration of a trust makes a request for an accounting unreasonable. Thus, for example, if the administration of an estate is on the very brink of being completed, it might be unreasonable to request an accounting until matters have been finally wrapped up;
                          3. Third, at some point in time, it may become simply too late in the game for a beneficiary to properly expect an order requiring an accounting. This might be the case, for instance, if a request for an accounting is made many years after the time by which it might have been expected that the administration of an estate would have been completed.

                            Every determination of reasonableness will, of course, always be fact-specific.

                            A side question not raised in Bryant Estate, was whether a party in the position of Franklin’s estate could also simply rely on the inherent jurisdiction of the Court of Queen’s Bench to secure an order for an accounting. That specific question will therefore have to await the guidance of a future court.

                              James Steele’s preferred practise area is estate litigation, including will challenges, executor disputes, power of attorney issues, etc.

                              Contact James Steele at 1-306-933-1338 or j.steele@rslaw.com. The above is for general information only, and not legal advice. Parties should always seek legal advice prior to taking action in specific situations.

                              Read more on our blog.

                              The Saskatchewan Estate Law blog is dedicated to providing practical, real-world information on Estate Law issues that affect Saskatchewan residents. The blog is written by RS lawyer, James Steele, whose practice focuses on estate litigation.

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