Estate Litigation Update: Munro v James, 2020 BCSC 1348

A 2020 decision from the British Columbia Supreme Court makes clear that an agreement to leave a gift in one’s will, is a binding agreement. As such, if one breaches that agreement, the person can be held liable even during their life.

In Munro v James, 2020 BCSC 1348, the plaintiffs made an agreement with one Ms. James. Key terms of the agreement included:

  1. The plaintiffs, Munro and Boughy, would pay Ms. James $100,000;
  2. The plaintiffs would take care of her farm and ponies for the remainder of Ms. James’ life;
  3. In exchange for this, the plaintiffs would be allowed to live at the Ms. James’ property, and build a home on the property;
  4. Moreover, the plaintiffs would be entitled to Ms. James’ estate when she passed (the above terms are the “Contract”)

The plaintiffs did indeed move to the James property and took up the tasks involved in managing the farm.

Eleven years later, James changed her mind about the Contract. She said she was unhappy with the plaintiffs’ management of her farm. She notified them that she was naming someone else as her beneficiary and gave them 3 months notice that she was terminating the Contract. She then changed her will, naming a friend as the beneficiary.

The plaintiffs brought a claim against James, relying on the Contract

The Court’s decision  in Munro:

The court held that the literal meaning of the Contract was clear: the parties agreed that the plaintiffs would inherit James’ estate upon her death.

The Court also affirmed that the law would award specific performance for this Contract by James. Specific performance basically refers to a declaration by the court compelling a party to perform its contractual obligations.

The Court said that James had made an anticipatory breach of the Contract. That is, even before her obligation had fallen due, she had repudiated her obligation, without justification. Since the Plaintiffs had substantially performed their side of the Contract, James must do the same. The court made a thorough examination of the plaintiffs’ actions and concluded that they had held up their end of the Contract. 

Remedy imposed by the Court in Munro:

As such, the plaintiffs were entitled to specific performance, being an entitlement to receive Ms. James’ estate on her death. The Court also ordered:

  1. That the subject property could not be further encumbered or disposed of without consent of the plaintiffs or order of the Court; and
  2. That the judgment and a related mortgage between the parties to be registered on title among other things.

Contracts to make testamentary dispositions:

The decision in Munro offers an opportunity to review prior Canadian decisions on promises to leave testamentary bequests.

The overriding principle which emerges from prior cases is that, if the plaintiff can prove the existence of the agreement, the Court will enforce it. Typically, prior decisions arise from situations of a laborer, who has worked for the testator in reliance on an oral promise that the testator will leave them certain property in their will. Often, the property at issue is some piece of land or a home.

The Statute of Frauds can offer hurdles to the enforcement of a verbal agreement in relation to land, unless there has been part performance. That is, there must have been actions by the plaintiff, which are  unequivocally in relation to the specific land in issue. If the Court is satisfied that the agreement has been proven, then the Court will typically order  specific performance of that agreement.

In Briese v. Dugard, 1936 CarswellMan 8, [1936] 1 W.W.R. 193 (MB CA), one Mr. Streich offered to leave to the plaintiff his house, property, furniture and one half of his money, left after paying his debts, if the plaintiff should keep house for him and look after him until his death, in a manner satisfactory to him. The letters containing the offer could not be produced.

The plaintiff accepted the offer and kept house for Streich for 14 months. Then, on September 26, 1934, Streich made a will making said provision for her. The will also provided that the devises and bequests to her should be null ad void if she “shall leave me and cease to care for me.”

On February 5, 1935, plaintiff and Streich had a brief quarrel and the plaintiff left his house. On that day he made a new will which made no mention of her. On the second day after she had left him Streich realized he had made a mistake, and asked plaintiff to return. The plaintiff did so and continued her duties as housekeeper and nurse until Streich ‘s death. No wages were ever paid to the plaintiff.

The second will (which left the plaintiff nothing) was the one admitted to probate. The plaintiff sued for specific performance of the contract. The Court of Appeal held that the departure of the plaintiff from Streich’s house was not a breach of the contract which had put an end to it. Rather, it was Streich who considered himself in the wrong.

The Court held that the parties had affirmed the contract as strongly as they could by conduct. If any memorandum was needed to satisfy the Statute of Frauds , it was supplied by the above-referred-to clause in the will, which had said that the gift would be void if the plaintiff would “leave me and cease to care for me.”

The Court made clear its sense that fairness required enforcement of the agreement:

40      The plaintiff Briese was not employed for wages either fixed or on a quantum meruit . Unless she can have the house and half the money in the bank she will get nothing. She performed her part in full, and the deceased carried out his promise to the letter, but at the last repudiated it without any valid reason for doing so.

41      I would direct the entry of judgment for the plaintiff against the executor for specific performance of the contract to convey to the plaintiff the house and furniture.

For example, in Davidson Estate, Re, 1947 CarswellNB 13, 20 M.P.R. 53 (NB CA), an older man had arranged with another woman, to provide housekeeping services for him in his home.

The man did not pay her wages, but only some occasional money for herself. In 1938, the man made a will in which he gave the woman the home in which he lived, and the sum of $1,000. He showed the will to her at that time. She said that $1,000 was too small for all the work she had done, but $3,000 would be agreeable. The man agreed, and therefore wrote out the following and signed it:

This is to certify that Thomas Davidson at his death has willed Isabelle Johnson his present dwelling house on Carleton Street and Three Thousand Dollars in money.

After his death, the woman’s claim to $3,000 was disputed. A beneficiary suggested that the document had been altered, and $3,000 had been improperly inserted for $1,000.

 The court agreed with the woman, and found no evidence of alteration. Thus, she was entitled to the full $3,000. What is especially interesting, is that the Court in Davidson explicitly affirmed that a contract to leave property by will, is enforceable if it can be proven:

6      There is no doubt that a contract to leave a sum of money by a will if satisfactorily proved is enforceable: Ridley v. Ridley (1865), 34 Bev. 478; Briese v. Dugard, [1936] 1 D.L.R. 723; Smith v. McGugan, 21 O.A.R. 542.

Finally, in Brownscombe v. Alberta (Public Trustee), 1969 CarswellAlta 31, [1969] S.C.R. 658, the claimant had worked for some 26 years for a disabled farmer. The claimant received little in the way of wages during the whole period but relied on repeated oral promises that the farmer would leave the farm by will to the claimant.

The farmer later died without a will. There was no written contract. The Supreme Court however held that the contract had been partly performed, and thus could be enforced, and property given to the claimant.

In short, for persons who have provided labor in response to a promised testamentary gift, the law will provide a remedy. Depending on the specific facts, such remedy would likely be available  under  a combination of contractual rights, proprietary estoppel or unjust enrichment.

Lessons offered by Munro:

Munro is unique, in that few (if any) prior decisions involve a court proceeding which was brought while the testator is still alive.

Munro shows that such a contract is enforceable, should the testator attempt to violate the contract. In other words, the person will be held to their promise, and lose any testamentary autonomy to decide what will happen to their estate.  

From a practical view, a contract to receive property under the will of another person is not always an ideal way of proceeding. First, it is subject to various uncertainties:

  1. For example, what if the “testator” falls on hard financial times, and is required to dispose of certain property during their lifetime (after all, a Will operates from the date of death, and only governs what property exists as of death);
  2. Second, what if they go rogue and make a new secret will without disclosing it (such a will could be challenged, but that  takes time and money to do so);
  3. Third, unless the agreement is carefully documented, providing its terms in court may take time and expense. A common thread throughout most cases of contractually promised bequests, is that the underlying agreements were drawn up without lawyers (or never put in writing at all).

Thus, in a perfect world, a labourer would instead insist on a lawyer-drawn contract, which provided for specific value to be exchanged by the other side, during the lifetime of the other party. However, all lawyers find their client’s situation as they come. Moreover, it may be that the person one is dealing with, will not agree to anything but a promise to leave property by their will.

Thus, for such circumstances, the outcome in Munro proves that a valuable judicial remedy exists for those who have been promised property under the will of another person. While Munro was a decision of a British Columbia court, there appeared to be nothing in it that was specific to British Columbia law or legislation. As such, it would be open to other Canadian courts to follow its lead.

RICS and CIArb 2021 Construction Dispute Symposium Series

Join Robertson Stromberg Partner Misty S. Alexandre on Tuesday, May 25, for the RICS and CIArb 2021 Construction Dispute Symposium series.

This Symposium series will explore recent trends and emerging approaches to dispute resolution in the construction industry. Presenters include leading practitioners in construction practice, construction law and dispute resolution.

For more information and to register, click here.

Tuesday May 25 – Global Trends & Adjudication

Update on global trends and current status of Adjudication across Canada (provincial/territorial/federal)

Introductory speaker

  • Duncan W. Glaholt, Partner, Glaholt Bowles LLP


  • J. Barrie Marshall, J. Barrie Marshall Consulting Inc., former partner, Gowling WLG (Canada) LLP


  • Misty Alexandre, Partner, Robertson Stromberg LLP
  • Matt Ainley, Chair, GCAC (Certified Adjudicator, Ontario)
  • Raymond Bassett, Vice President & Chief Underwriting Officer, Travelers Canada

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What You Need to Know About New Assisted Reproduction Laws

The Children’s Law Act, 2020 has recently come into place in Saskatchewan. This has updated the laws relating to decision-making and parenting time of children.  However, this article focuses on the changes made to assisted reproduction in Saskatchewan.

The new updates are a welcome change, revising our archaic former act. Under the old act I had clients attend clinics in British Columbia so that the surrogacy agreements could be governed by  British Columbia laws.  As an aside, there is also federal legislation and regulations dealing with assisted reproduction.

Here are nine things you need to know about the new Act:

  1. Assisted reproduction is broadly defined as a method of conceiving other than by sexual intercourse.
  2. The new Act is more inclusive, removing references to “mother” and “father” and instead referring to “parents” only. It further contemplates a variety of parental arrangements and agreements which can be made.
  3. In order to qualify as a surrogate, the person carrying the child must have the intention, at the time of conception, to relinquish parental rights to one or more other persons.
  1. This makes it vital that a surrogacy agreement is entered prior to conception which clearly specifies the surrogate’s intention to relinquish parental rights. All parties must also receive independent legal advice.
  2. A surrogate is not considered a birth parent where they have relinquished entitlement to parentage pursuant to the Act (more on this in part 7 below). If the surrogate has not relinquished entitlement, they will be presumed to be the parent of the child.
  1. A sperm donor is not recognized to be the parent of a child conceived through insemination. Therefore, if a sperm donor intends to be the parent of the child, a parentage agreement would be required. Oddly, the Act is silent in this regard respecting ova donors.
  2. If the birth parent of a child conceived through assisted reproduction, not including a surrogate, has a spouse at the time of conception, that spouse is automatically recognized to be a parent of the child, unless the spouse does not consent to be a parent of the child.
  3. Where there is an agreement specifying the parentage of a child, not including a surrogacy agreement (e. there is an ova or sperm donation agreement in place), upon the child’s birth, they are deemed to be the child of the intended parents under the agreement.
  4. However, for surrogates, not only must there be a surrogacy agreement in place prior to conception, the surrogate must also relinquish their entitlement to parentage of the child in the specified form after birth. This cannot take place earlier than three days after birth.  Presumably, this is to protect the surrogate and provide them a final chance to claim parental rights, although it certainly complicates things for the intended parents and could lead to messy situations.  The parents must then apply for an order declaring them to be the parents of the child, which must be made before the child is 90 days old.
  1. If the surrogate refuses to relinquish parental rights, the intended parents can apply to the court for an order declaring parentage.
  1. Surrogacy agreements are not enforceable at law, but can be used as evidence of a person’s intention to be the parent of the child, and the surrogate’s intention to not be a parent of the child.
  2. In determining bloodlines, if the person(s) who donated sperm, ova, or an embryo had no intention at the time of conception to be a parent of the child, they are not considered a blood relation to the child. For example, this would mean the child would be ineligible to inherit from the donor if they died without a Will in place.

This article is intended to provide legal information only, not legal advice.  Assisted reproduction matters can be quite complicated, and can lead to unintended results if not completed properly.  It is recommended you seek the advice of a lawyer when considering entering such an agreement and exploring your options.

For further information, please contact:

Curtis P. Clavelle
Direct: 306-933-1341

Saskatchewan Estate Litigation Update: Nelson v Wagner, 2021 SKQB

A very useful lesson comes in the recent Saskatchewan decision in Nelson v Wagner. The decision offers guidance on when a court will override claims of solicitor-client privilege, and disclose the file of the solicitor who dealt with a testator.

In Nelson, the applicants had commenced a proceeding in which they allege undue influence on the part of John James Nelson in respect of both a will and a transfer of land by Hazel Nelson, deceased.

The applicants sought the solicitor’s file of James Turner, the lawyer who had prepared the will. Such a disclosure request is common, as the solicitor’s file notes or materials will often provide helpful evidence on the intentions of the deceased. Such evidence can assist the Court in determining the intention of the testator.

Counsel for James Turner, said that Turner could not disclose the contents of his file, without a court order directing Turner to do so, because to do otherwise would breach solicitor‑client privilege.

Counsel for Turner did acknowledge the “wills exception” to solicitor-client privilege, which posits that privilege may be overcome where such disclosure will help determine the true intentions of the testator. However, Mr. Turner argued that unless and until the court has first directed a trial of the issue of undue influence, the wills exception does not permit the disclosure order sought.

The applicants disagreed, and wanted the solicitor’s file released now, before the Court had decided whether to order  a trial. The applicants said that it was appropriate to disclose it now, because the solicitor’s file itself might reveal evidence which would assist the court in deciding whether to direct the trial of issues in the first place.


The Court agreed with the applicants and ordered the release of the solicitor’s file. The Court reasoned that to do so would further the interests of the deceased client because the evidence would help the Court ascertain what his or her true intentions were.

The Court did recognize that an applicant would need to show more than a mere allegation of undue influence. However, here, there was already significant evidence of undue influence that went beyond a mere allegation. The Court held that as long as there were credible allegations of undue influence, then the appropriate threshold to order disclosure, will have been satisfied:

[13] I do not disagree that there is an initial threshold requirement that should be met before a court orders production of a file that may be subject to solicitor-client privilege. However, that threshold requirement is not that this court must first decide whether or not to direct a trial of the issue regarding undue influence. The two‑step process argued for does not require that I first direct a trial of the issue of undue influence. So long as there are credible allegations of undue influence, as there are here, then in my opinion the appropriate threshold has been satisfied. The production, in advance of the decision whether or not to order trial of such an issue serves Foundational Rule 1-3(3)(a), which states:

(3) To achieve the purpose and intention of these rules, the parties shall, jointly and individually during an action:

(a) identify or make an application to identify the real issues in dispute and facilitate the quickest means of resolving the claim at the least expense; … .

The Court noted a number of reasons in favour of production of the file:

  1. Early disclosure of the file may significantly assist counsel on whether or not to order trial of the issue of undue influence;
  2. If all parties have this information early on in the process it may result in settlement;
  3. If not, it will surely serve the purposes of having the claim justly resolved in a timely and the most cost effective manner.

For all of the above reasons, the Court ordered that the file was to be disclosed forthwith.

Lesson offered by Nelson v Wagner:

To understand the full implications of Nelson, we must  understand the context of a will challenge under  Saskatchewan law.

Typically, the challenger of a will must go through a two step process:

  1. Stage 1: The challenger must show that their challenge has raised a genuine issue of capacity or coercion, and is not mere speculation or a fishing expedition;
  2. Stage 2: If the court finds there is a genuine issue, the court will set the challenge down for a trial process, to be determined by a trial.

In Saskatchewan, it is not uncommon for a defender of a disputed will, to initially resist giving up the solicitor’s file to a challenger. The defender (as occurred in Nelson) will argue that it is premature to disclose  the privileged will file, until the challenger has passed stage 1, and actually proven a genuine issue.

This position can raise difficulties for challengers, as it can pose a catch 22. If the most crucial evidence of incapacity or coercion may sometimes be in the solicitor’s file, how can the challenger best present their evidentiary case for stage 1, without first accessing the evidence in solicitor’s file.

Thus, Nelson clarifies that the challenger of a Will now has the opportunity to obtain the solicitor’s file, before they have satisfied stage 1. All that appears to be required is that the challenger simply provide evidence raising “credible allegations” of incapacity or undue influence.

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 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.

6 Robertson Stromberg Lawyers recognized by their peers in the Canadian Legal Lexpert Directory for 2021

Congratulations to Melvin A. Gerspacher, Q.C.,  Leslie W. Prosser, Q.C., M. Kim Anderson, Q.C., Gary D. Young, Q.C., Scott D. Waters, Q.C., and Christopher J.H. Donald, Q.C., who have been acknowledged by their peers in the Canadian Legal Lexpert Directory for 2021.

Lexpert publishes this guide based on extensive peer surveys in the Canadian legal community.

Saskatchewan Estate Litigation Update: McStay v Berta Estate, 2021 SKCA 51

A recent case from the Saskatchewan Court of Appeal, reminds us that a Chambers judge cannot decide conflicting evidence on the basis of affidavits. Rather, any weighing of credibility must wait for the later trial.

The case in McStay arose out of a will challenge.  Linda McStay applied for an order requiring her father’s will be proven in solemn form. She asserted that her father lacked testamentary capacity and was unduly influenced by the executor. Thus, she claimed his  will was invalid.

Solemn form refers to the legal proceeding which arises when a will is disputed. Instead simply probating the will automatically (which occurs for most non-contested wills), solemn form means that the will is examined by the Court in detail, to see if there is a genuine issue affecting the will.

Factual background:

Mihaly Berta (the testator) had been born in Hungary in 1957. Ms. McStay was the daughter of Mr. Berta’s first wife. Mr. Berta adopted her when she was seven or eight years old.

The family lived together until Mr. Berta and Ms. McStay’s mother divorced in 1997. Mr. Berta had no other children. Mr. Berta was divorced as of the date of his death and had no dependents.
Prior wills, including one executed in December of 2010, had named Ms. McStay as his executor and sole beneficiary. Mr. Berta and Ms. McStay had become estranged in 2013 and had not spoken in some years.

In 2017, Mr. Berta was diagnosed with terminal cancer and decided that, when the time came, he wished to use medical assistance in dying [MAID] to end his life in a dignified manner. The testator gave initial instructions to his solicitor, Darryl Lucke, for the drafting of a new will in August of 2017, but needed more time to consider the issues.

Mr. Lucke had been Mr. Berta’s solicitor since 2011. Mr. Lucke met with Mr. Berta at the Pasqua Hospital in April of 2018 and received additional instructions regarding the will, including a proposed distribution, but Mr. Berta had not yet come to a final conclusion with regard to the bequests he wished to make.

In May of 2018, Mr. Berta reconciled with Ms. McStay and then they spent considerable time together in the weeks prior to his death.

The making of the Will:

On May 22, 2018, Mr. Berta spoke with Mr. Lucke on the telephone and gave him further instructions regarding his will. As a result of those instructions, Mr. Lucke drafted a new will appointing a friend, Gregory Lipoth as his executor and setting out the following bequests:

  1. $25,000 to a friend who had provided care for him in his final days;
  2. 5% of his estate, to a maximum of $10,000, to another friend;
  3. 5% of his estate, to a maximum of $10,000, to another friend;
  4. 5% of his estate, to a maximum of $100,000, to his sister-in-law in Hungary, with $50,000 to be paid out immediately and the remainder at $5,000 per year;
  5. 5% of his estate, to a maximum of $100,000, to his brother in Hungary, with $50,000 to be paid out immediately and the remainder at $5,000 per year;
  6. 5% of his estate, to a maximum of $100,000, to Ms. McStay, in payments of $2,000 per month for 12 months, with the remaining $76,000 to be placed in a Registered Education Savings Plan for her children; and
  7. 5% of his estate to Mr. Lipoth, for the benefit of Mr. Lipoth’s children’s education.

The executor, in defending the will challenge brought by Ms. McStay, filed evidence relating to the testator’s capacity. For example:

  1. On the morning of May 24, 2018, a doctor at the Pasqua Hospital assessed Mr. Berta’s capacity for MAID and concluded that there were no concerns about his capacity for that purpose;
  2. Lucke attended to Mr. Berta’s bedside in the palliative care unit of the Pasqua Hospital for the signing of the will in the early afternoon on May 24, 2018. He averred that after Mr. Berta read the will, Mr. Lucke explained the provisions and confirmed that they were in accordance with his wishes. Mr. Berta then executed the will. Mr. Lucke’s legal assistant had attended the hospital with him and the two of them witnessed the will.

Decision before the Court of Queen’s Bench:

At the initial hearing in the Court of Queen’s Bench, the Court held that there was no genuine issue relating to capacity. Thus, she dismissed the challenge.

The Queen’s Bench justice found that the will made sense, and the testator had taken care in  crafting its provisions:

[35] The evidence establishes an earlier will from 2013 naming the applicant as executor and sole beneficiary. The notes taken by the lawyer drawing up the will explain the reason for a “basic will”. Thereafter, the testator and applicant were estranged. Beginning in the summer of 2017, the testator planned a new will, and settled on a new executor. The Executor was someone he had known for decades. He discussed his choice with his close friend, Alex Gedo, and with his lawyer. The testator was uncertain about the bequests and did not finally make any determinations for another nine months. When he did make his final determinations, he was facing death. He was in pain and on medication, but there is no evidence he did not understand what he was doing. On the contrary, the evidence shows the testator acted decisively and carefully.

[36] The bequests were consistent with a person taking care in determining “the nature and extent of his property, [and] the persons who are the natural objects of his bounty” (Kapacila Estate, para 33). The applicant is the testator’s daughter. She would expect to benefit, notwithstanding their estrangement. In fact, she did benefit.

[37] The Will also demonstrated an “orderly desire as to the disposition of [the testator’s] property” (Kapacila Estate, para 33). Everyone mentioned in the Will had a strong connection to the testator. The bequests went to four friends – three of whom the applicant does not object to – his brother, his sister-in-law and his daughter. The errors in the will were minor and do not raise a concern the testator did not know what he was signing.

[emphasis added]

The Court also found that there was no genuine issue relating  to undue influence:

[40] Presumptive undue influence is established “where the relations between the donor and donee have at or shortly before the execution of the gift been such as to raise a presumption that the donee had influence over the donor” (Culbert Estate at para 137). As stated by the Lawyer, the testator was “independent and strong-minded”. His doctors described him similarly. There is no suggestion the testator’s will was overborne by the Executor or anyone else. I do not find suspicious circumstances in the making of the Will.

Decision before the Court of Appeal: 

The Court of Appeal disagreed. It held that there were numerous aspects of the evidence that were controverted on material points. As a result, the Court of Appeal held, the only realistic option was a trial to determine the true facts.

Examples of these conflicts included the below:

  1. McStay visited Mr. Berta in the hospital twice on that day, once around noon and again later in the afternoon. She averred that he was heavily medicated and his behaviour was not consistent with his typical behaviour. She observed that he was sedated, not alert and kept dozing off. It was difficult to have a conversation with him. Thus, this conflicted with the evidence that the testator had been of wholly sound mind;
  2. McStay averred that Mr. Lipoth himself told her that he had many in-depth conversations with Mr. Berta about the will and the designated percentages and that Mr. Berta did not understand the percentages versus the dollar amounts (in short, Ms. McStay suggest that Mr. Lipoth may have been too involved in the making of the will, which he denied);
  3. There was a factual disagreement on just how close the testator had been to Mr. Lipoth (Ms. McStay suggested that they were not close, whereas Mr. Lipoth suggested that they were);
  4. The previous wills named Ms. McStay as the sole beneficiary and executor. However, the final will signed on May 24, 2018, was significantly different than the prior wills. The Court implied that this was a fact requiring further investigation.

From the above, the Court concluded that there  were conflicts on material issues:

[50]  As can be seen from the above examination of the evidence, there were significant conflicts regarding Mr. Berta’s mental state at the time the will was signed, his intentions, his relationship with his daughter and her children, his relationship with Mr. Lipoth and his children, the actions and role of Mr. Lipoth and the circumstances surrounding the making of the will. These are not mere contradictions on immaterial issues. There are major conflicts in relation to material issues that could affect a determination of capacity and undue influence. Despite these conflicts, the Chambers judge determined the evidence was overwhelming in favour of upholding the validity of the will. In the face of this controverted evidence on material issues, the only way she could have done so was by engaging in a weighing exercise by, inferentially, conducting an evaluation of credibility.

[emphasis added]

The Court held that the Queen’s Bench justice had engaged in an impermissible weighing of credibility, based on affidavit evidence. As the Court of Appeal held, the “conflicts in the evidence on material points were simply too pronounced to support a finding that there was no genuine issue for trial unless there were adverse findings of credibility.” (para 51) For  the Queen’s Bench justice to make “adverse findings of credibility” was impermissible  on the basis of affidavits.

As such, the appeal was allowed and a trial was directed, to prove the last will and testament in solemn form.

Ms. McStay received her costs of this appeal, payable from the estate, on a solicitor–client basis. However, the costs of the Queen’s Bench application were ordered to be costs in the cause. This meant that a future  trial court would decide if Ms. McStay should get her prior Queen’s Bench costs out of the estate.

Lesson learned:

McStay is an interesting decision for estate litigators. The evidence before the Court of Queen’s Bench, supporting the testator’s capacity and intent, appeared to be very strong evidence. It was not necessarily surprising that the Court of Queen’s Bench found no genuine issue requiring a trial.

After all, there is established case law reminding us that solemn form is a lengthy and expensive process and should not be entered into without sufficient foundation. Otherwise a substantial portion of an estate is at risk of being wasted in litigation. Moreover, the executor offered sworn evidence from a lawyer, and medical records, showing that the testator had sound mind. This is very powerful evidence from independent parties, and is not likely to change in any future trial.

Moreover, there was also evidence from friends of the testator that the testator had indicated his intention to name Mr. Lipoth as his executor, and leave money to Mr. Lipoth’s children, etc. (paras 37-38). It is difficult for a challenge to portray such intentions as being suspicious, when the deceased himself told others that these were his wishes.

However, there are no certainties for those who go to court, as McStay shows. Thus, the lesson appears to be that defenders of wills should be confident they have un-challenged evidence on all major factual issues. Otherwise, there is the chance that a Court may place the will into the expensive process of solemn form.

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 The above is for general information only. 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.