Zukowski Estate, 2011 ABQB 428

Court of Queen ’ s Bench of Alberta Citation: Zukowski Estate, 2011 ABQB 428 Date: 20110706 Docket: ES03 133414 Registry: Edmonton Court File Number ES03 133414 Court Court of Queen’s Bench of Alberta (Surrogate Matter) Judicial District Edmonton Estate Name Anastasia Zukowski Applicant Leon Zukowski Respondent/Personal Representative Mary Ford _______________________________________________________ Reasons for Judgment of the Honourable Mr.

Justice Donald Lee _______________________________________________________ [ 1 ] This is an application by Leon Zukowski to interpret certain clauses of his mother’s Last Will and Testament, as well as to challenge the validity of the Will based on undue influence having been brought upon his mother. [ 2 ] The mother died in November 2010 at the age of 91. The Applicant Leon Zukowski was a residuary beneficiary who was given one fifth of the residue of the estate Less the $20,000 payable upon his release of any claims that he might have against his twin brother Andrew Zukowski.

Andrew Zukowski received one fifth of the residue of the estate, and $20,000 from Leon Zukowski’s share, payable upon Andrew’s execution of a Release of any claims that he might have against Leon Zukowski. [ 3 ] The Last Will and Testament before the Court which the Executor daughter Mary Ford seeks to have distributed was signed

on June 1, 2004 in the law offices of L. Neil Gower. At my request, counsel recently provided the Court with his letter in which he notes his recall of his meeting with Mrs. Zukowski to sign the June 1, 2004 Will. Counsel specifically recalls that Mrs.

Zukowski understood what she wanted in her Will, understood the provisions of her Will, and was not subject to any undue influence. [ 4 ] The Applicant Leon Zukowski challenges that legitimacy of the Will that gives him a conditional bequest, by requiring him to execute a full and Final Release of any and all claims that he has against his brother Andrew. [ 5 ] Mary Ford in her Affidavit sworn on June 8, 2011 deposes that Andrew Zukowski had loaned his brother Leon $24,500 in May 1995, and that the deceased in preparing her 2003 Will included the provision that would allow Leon to finally repay the loan to Andrew from his share of her estate because in July 2003 the loan had still not been repaid by Leon.

The Personal Representative Mary Ford deposes that numerous disputes had arisen between Andrew and Leon with respect to these financial issues, and that in May 2004 the deceased realized that the provisions of her July 2003 Will would place undue stress on her Executor Mary Ford, and accordingly made a new Will prepared more prudently which stated the exact amount to be paid to Andrew out of Leon’s share of the estate. [ 6 ] The July 18, 2003 Will had stated the following:– To divide the rest and residue of my estate in equal shares amongst my children for their use absolutely; PROVIDED HOWEVER if my son Leon Zukowski has not fully repaid my son Andrew Zukowski the $24,500 loan made by Andrew Zukowski to Leon Zukowski pursuant to two signed promissory notes, any amount owing by Leon Zukowski, such amount to be determined by the sole discretion of my Trustee, shall be paid firstly from Leon Zukowski’s share of the residue of my estate to Andrew Zukowski with the balance remaining of such share, if any, then paid to Leon Zukowski. [ 7 ] In addition to taking issue with the present requirement in the 2004 Will to execute a complete Release in favour of his brother, before the Applicant receives his share of the residue Less $20,000 to be paid to his brother, the Applicant also submits that there is clear evidence of fraud or undue influence on his mother committed by other members of his family.

In this regard the Applicant provides the following time lines of event in

Schedule “A” of his Affidavit in support of his application filed on June 13, 2011 which reads as follows:– 1. In the 1980's, I live with my widow mother. At which time my mother ask me to be one of three executors, this was as my father designated in his will. I agree to be one of three executors. 2. Move back to my mother’s neighbourhood in 1998, 2 blocks away so I could help her and keep an eye on her. 3. Went on vacation for 6 weeks in 2004, May-June to Thailand. In December 2010 receive copy of mom’s will.

Was shocked to see that I was not a executor, also discovered that what my mother wish in her will, that she told me and other family members. Of how she wish of how to divide the estate after death was not reflected in the copy of the will I received. The vacation was mention because the will was change when I was out of the country and there was no reason to do this because I was an executor of her will at that time. 4. In 2008 during mom’s stay in extend care facilities, I video tape many of my visits with my mother, for personal memories. 5.

In one of my visits we talk about what her final wishes were and what she wanted in her will after she pass away. The video taped on 7\12\2008. Item PCO7002. The written transcript of my mother’s verbal comments that were spoken in the video. See attached

schedule “A 1.” written transcript document of video. 6. To my shock the will did not express to me of what my mother had express to me, of what she wanted. 7. In her entire final years she never changed her mind of what she express of what her final wishes were.

8. In my option the clauses in her will are over reaching and the intent is unclear and don’t reflect her final wish. 9. I also feel in my option that these clauses cause personal harm to me, no other clauses in the will effect anybody else but me. This does not reflex my mother’s wish to treat each kid the same. 10.

In my option I feel that the written transcript of the video of my mom’s comments might indicate that there was some undue influence of my mother’s final wishes. [ 8 ] The Applicant also provides a transcript of a video taped session he had with his mother on July 12, 2008 which establishes his mother’s desire to provide for an equal unconditional distribution of her estate. The Applicant provided the following transcript of that conversation as follows:– Written transcript of mothers comments. “I don’t care, as long a they divide everything evenly among my kids.

Yea, Divided evenly what I have, so everybody has the same amount for all the kids. I have. That my will so divided my everything among my kids evenly, everybody the same thing. I don’t know, that’s the only way I knew. How I wanted like if I die. What I have I want to be divided for all of you the same way, So you the same as, - So you the same. Yea, But it’s not that way, Oh ,Oh, Oh,Oh I don’t know, I don’t remember, I don’t remember want I want. Yea, evenly, evenly divided among my kids And that is it, Like if and so you don’t get less and the other brother get more.

You all get, Yea, All my children the same amount. I have, want I have, If have anything, it’s has to be divided evenly. If I gonna have anything left when I die, I wanted to, Eh, If I have anything left, when I die, I wanted anything. I want that, if anything left when I die that I wanted, Eh, If I have anything left, Eh, when I die, that I wanted. Eh, If I have anything left, Eh, when I die, that I wanted, Eh, When I die, I wanted any, Oh,

I don’t know what I suppose to have, If I have money in bank I want that to be divided to all my kids evenly, Yea I don’t know what ever else, I don’t know what else, Eh, No because if I die, what I have now. If I die, if anything that’s my stuff that has to be divided among evenly, Eh Same you and and Mary and Sophie and Eh, Forgot my name, Mansha and Eh, forgot my name, Yea, Yea, All my kids, What I remember that I know I the names of my children.

Yea, laugh, So I remember them all, see, L don’t know, I was thinking you, were there, Oh, Oh, well who, who, I have, I have three, Mary, Sophie, that’s girls three girls Mary, Sophie and Mansha And, Eh, and then, there is boys, Oh, well I don’t remember maybe I don’t remember, And you Eh, Lee, Andy and no more, Yea, and I now much do I have, or Two only, is that all the boys I have, Yea, Oh, I don’t know, I don’t remember, I o did I was. What kind will was wade? I don’t remember anything, I wanted what I have.

My name, it goes to my children evenly, divided for all my, each child, evenly For my each child, divided evenly. Like you and Andy and Eh, Mamsha, Mary and Sophie that all I, Oh,, If has to be divided want I have of my property. If I have any, Oh, What did I sell? Sell something, Oh, Did I get lots for it? Oh, Oh, Yea, But you have to go, follow the booms, laughs, Oh, Where was I, The last time, I had a house?, Oh, Oh, Don’t remember, Oh, I don’t, and When he dies, when he dies, and who takes his house? Oh, Oh, I did I? My will was made.

I don’t know nothing, Eh, I was told that I wanted evenly, that’s what I want my kids evenly, No, No, That want my kids that I have evenly, what I have, any property I have, That I want money, to be divided evenly among the kids,

My kids, Did I have anything left? Oh, I have money? Buts, that’s will be divided, When I croak, Why not evenly? Why? Oh, Why did I? No, She told me, to this going to be and Then I signed it and That was it. And so I don’t know what I signed, Oh, But if it’s done the wrong way, Oh, Oh, Oh, Well, Oh, Oh, Yea, Well I can do nothing, about it, then I don’t when, Oh, I am nobody, Oh, Oh, Probably I don’t Yea, Yea, Know want the lawyer wrote it, Yea, That’s not right, not the right way, Yea, Yea, Who did? Mary, Yea, Everything not went bazurk, What is there to fight about?

If I die what I have, what, I don’t know how the will suppose to go I change it? Oh, Oh, Hey, Oh, Oh, I was that kind will, I made? I wanted everything I had divided evenly among all my children, and That’s all I wanted, but, Oh, There’s one thing. Do I have money in bank? But, I don’t have no more house? Sold it, So I am just in this kind of senior place, what kind of hospital? Oh, I, They do what they want to, I guess, Yea.

I didn’t, tell they what to do for my money, Did I do this? Did I tell they anything, Oh, There was something I wanted, I wanted to. I wanted evenly divided among my children, what I have property, Money, I have? Oh, Children so not cheat on each other. Did I make a will? How was it made? I was thinking of how is suppose to he evenly divided.

Conclusion [ 9 ] I have also now had an opportunity to view the videotape, as I noted that the transcript of the mother’s conversation with the Applicant listed only the Answers of the mother and not the Questions of the Applicant, nor any comments that the Applicant may have made to the mother before she answered. The Applicant submits the answers are what are germaine and important, and whatever comments and questions he may have asked his mother are secondary and are of little or no relevance.

However after viewing the videotape, I disagree. [ 10 ] It is also to be borne in mind that the so called transcript was prepared by the Applicant’s sister who supports his application, and that the other three siblings do not support the Applicant’s position. [ 11 ] Of even of greater importance is that the mother was purportedly interviewed in such a manner notwithstanding she had previously been diagnosed by a medical doctor in August 2006 with dementia of the Alzheimers type which resulted in the mother having very poor short term memory, poor insight with cognitive decline and severely impaired cognitive function.

A second physician in August 2006 also certified that she was of the opinion that the deceased, who had made a Personal Directive, was not competent to make decisions in all personal matters. [ 12 ] Accordingly whatever appears in the videotape and the transcribed audio portion are clearly subject to the medical opinions given concerning the deceased approximately two years prior, rendering anything that the mother may have said to the Applicant in the videotape highly suspect given her lack of cognitive ability and impairment. No real evidentiary value can be taken from the video and audio tape as such.

Furthermore the manipulation and the pressure that appears to have been brought to bear on the mother by the Applicant in the videotape, plus his apparent knowledge of her stated intentions in her Will that he later denied having, further compromises his application. [ 13 ] After reviewing the Affidavits, and the other documents filed in this matter, the videotape and the parties’ representations, I order that the administration of the estate will continue by Mary Ford, the Personal Representative of the estate, and that the distribution of the estate be made in accordance with the June 1, 2004 Will.

I further conclude that there are direct costs in relationship to Leon Zukowski’s claims that resulted in legal bills and fees of $2,267.21 which should be paid from Leon Zukowski’s share of the estate. Heard on the 30 th day of June, 2011. Dated at the City of Edmonton, Alberta this 5 th day of July, 2011.

Donald Lee J.C.Q.B.A. Appearances: Leon Zukowski Appeared on His Own Behalf Mary Ford Personal Representative Appeared on Her Own Behalf