Penno Estate, 2012 ABQB 183

Court of Queen ’ s Bench of Alberta Citation: Penno Estate, 2012 ABQB 183 Date: 20120316 Docket: ES03 131892 Registry: Edmonton Court File Number ES03 131892 Court Court of Queen’s Bench of Alberta (Surrogate Matter) Judicial District Edmonton Estate Name Lennard Penno Applicant (Plaintiff) Bradley Lennard Penno Respondents (Defendant) Emil Penno, Wanda Lena Penno and Blue Heron Support Services Association _______________________________________________________ Reason for Judgment of the Honourable Mr. Justice R.

Paul Belzil _______________________________________________________ The Application [ 1 ] The Applicant seeks an order requiring a will to be proven in solemn form. The Respondents, Wanda Lena Penno and Blue Heron Support Services Association did not participate in the application and filed no materials. Factual Background [ 2 ] The Applicant is the only child of the deceased testator Lennard Penno and Jean Penno deceased.

[ 3 ] The Respondent Emil Penno is a brother of Lennard, named executor and residual beneficiary in a will dated March 26, 2010. Lennard died three weeks after the execution of this will. [ 4 ] When Lennard executed this will he was 83 years of age. His estate has a value of approximately $622,000. In the will, Bradley received a specific bequest of $25,000 and his sister Lena received a bequest of $20,000 in trust with a gift over to Blue Heron Support Association. Emil received the residue of the estate. [ 5 ] Lennard and Jean were farmers in the Barrhead area.

In 1993 Lennard executed a will wherein his then wife Jean was to receive the entire estate with Bradley named as a residual beneficiary in the event that Jean predeceased him. [ 6 ] Lennard suffered a stroke in the early 2000s and was observed by some to have undergone a personality change as a result of it. [ 7 ] In 2003-2004 Lennard commenced divorce proceedings which were acrimonious. Jean obtained an exclusive possession order against Lennard. Bradley sided with his mother and continued to reside on the farm and actively operated it.

Ultimately the divorce proceedings were settled with Minutes of Settlement being executed on November 29, 2007. Jean was killed in a tragic farm accident in 2009. [ 8 ] Following the settlement of the divorce proceedings Lennard purchased a quarter

section of land which he resided on until his death. [ 9 ] It is uncontroverted that Lennard and Bradley were estranged. Lennard had forbidden Bradley to set foot on his property and in the three years prior to Lennard ’ s death he and Bradley had only spoken for a few minutes at a funeral and in several chance encounters on the street. [ 10 ] The will of March 26, 2010 was prepared by a lawyer, Ray Barlow. He prepared an affidavit for use in these proceedings. Paragraphs 4-16 of which are as follows: 4. On March 12, 2010, I met with Lennard Penno ( “ Lennard ” ) to take instructions for his Will.

A true copy of my notes of that meeting is attached to this Affidavit as Exhibit “ A ” . 5. Lennard said that he wanted his land and money to be used to help people to live better. He told me that he believed in a more healthy lifestyle. We discussed the possibility of setting up a trust for this purpose. However, Lennard was not able to give me sufficient details to set up a valid trust. He had not yet worked out exactly who should benefit from the trust, for how long the trust should be in existence, or who should be the trustee. 6.

I told Lennard that he could either wait to make a will until he had worked out all of the necessary details for the trust, or he could make a will now which did not include the trust, and make a different will later. Lennard said he wanted to go ahead now. 7. I asked Lennard about the members of his family. Lennard told me that in addition to his brother Emil, Lennard had a sister, Wanda Lena Penno and one child, Bradley Penno. Lennard told me that he was divorced from Bradley ’ s mother, Jean Penno and that Jean Penno was no longer alive.

Lennard said that he did not have a good relationship with his son, and that his ex-wife and son had turned against him. 8. I asked Lennard about what property he had. Lennard ’ s answers are shown in Exhibit “ A ” .

9. I told Lennard that if be was going to make a will now, he needed to select a beneficiary for the residue of his estate. Lennard selected his brother Emil. 10. While Lennard was elderly, I had no concerns about his capacity to give instructions for a will. In my opinion, he was alert and rational. He was oriented as to date, time and place. He knew who the potential beneficiaries of his estate were. He knew what property he had in his estate. Accordingly, I prepared the Will. 11. On March 26, 2010, I met with Lennard to review and sign the Will as well as an enduring power of attorney.

Emil Penno and Jean Yaremko were present for the first part of the meeting at Lennard ’ s request. A true copy of my notes of the meeting is attached to this Affidavit as Exhibit “ B ” . 12. Lennard was unable to see well enough to read the documents. Therefore, Jean Yaremko read the Will and the Enduring Power of Attorney to him. Lennard signed the Enduring Power of Attorney. I then asked Emil Penno and lean Yaremko to leave the meeting room, which they did. 13. After Emil and Jean left, I went over the Will again briefly with Lennard.

Lennard listened to me, but seemed somewhat irritated that I found it necessary to go over the contents of the documents again. 14. I specifically asked Lennard if he would change the share of his estate given to his son if the relationship between the two of them changed or improved. His response was that be would have to see about that. 15. I had no concerns about Lennard ’ s capacity to make a Will. I was satisfied that he understood that he was making a will, that he knew who had a moral claim on his estate, and that he knew what property he had in his estate.

I was also satisfied that he knew the contents of the Will, and that the Will reflected his true wishes. 16. Lennard signed the Will in the presence of me and the other witness to the Will, Linda Mosber. [ 11 ] Barlow was questioned on his affidavit and recalled that Lennard told him specifically that Jean and Bradley had turned against him and that he did not want Bradley to get any more than $25,000. [ 12 ] At the time of his death Lennard was living independently and was still driving.

He saw a physician regularly but was not under the care of a psychiatrist or a gerontologist. [ 13 ] Lennard had an interest in holistic healing which started in approximately 2004. As noted in Barlow ’ s affidavit, he wanted to set up a trust to fund a holistic healing centre. [ 14 ] Photographs of his residence were exhibited before me.

Lennard had strung some wires in his residence from which were hanging dolls and his niece Caroline Brennan in an affidavit deposed that Lennard told her that this was for the purpose of guarding his possessions. [ 15 ] Some medical records were exhibited before me, none of which make any reference to Lennard suffering from any delusions or lacking mental capacity. The Law [ 16 ] There is complete agreement between the parties as to the applicable law in this area but significant disagreement as to the application of the facts to the law.

[17] In Quaintance Estate, Re, 2006 ABCA 47 the Alberta Court of Appeal defined at para. 23 the test to be applied on anapplication for the proof of a will in solemn form: 23 On an application for proof in solemn form, the appropriate legal test is whether there is a “genuine issue to be tried”. A genuineissue is one that has arguable merit. The chambers judge erred in deciding the application before him on the basis of whether theAppellant had “a reasonable prospect of success”.

The latter threshold would be too stringent a standard because often the knowledge ofthe challenger is confined to suspicious circumstances that can only be explored and amplified at examinations for discovery. [18] In Keller v. Luzzie Estate, 2010 ABCA 127 at para. 24, it was observed that a genuine issue requires an evidentiaryfoundation which is well grounded. [19] In Vout v.

Hay (SCC), [1995] 2 S.C.R. 876, the Supreme Court of Canada discussed at paras. 24-27 thecorrect approach to dealing with allegations of suspicious circumstances surrounding the execution of a will: 24 With respect to the first problem, in accordance with the general rule applicable in civil cases, it has now been established that thecivil standard of proof on a balance of probabilities applies. The evidence must, however, be scrutinized in accordance with the gravity ofthe suspicion. As stated by Ritchie J. in Re Martin; MacGregor v.

Ryan, (SCC), [1965] S.C.R. 757, at p. 766: The extent of the proof required is proportionate to the gravity of the suspicion and the degree of suspicion varies with the circumstancesof each case. 25 With respect to the second problem, although Barry v. Butlin and numerous other cases dealt with circumstances in which theprocurer of the will obtained a benefit, it has been determined that the dictum in Barry v. Butlin extends to any “well-grounded suspicion”(per Davey L.J. in Tyrrell v. Painton, [1894] P. 151, at pp. 159-60).

This was reaffirmed in this Court by Ritchie J. in Re Martin, supra.The suspicious circumstances may be raised by (1) circumstances surrounding the preparation of the will, (2) circumstances tending tocall into question the capacity of the testator, or (3) circumstances tending to show that the free will of the testator was overborne by actsof coercion or fraud.

Since the suspicious circumstances may relate to various issues, in order to properly assess what effect theobligation to dispel the suspicion has on the burden of proof, it is appropriate to ask the question “suspicion of what?” See Wright, supra,and Macdonell, Sheard and Hull on Probate Practice (3rd ed. 1981), at p. 33. 26 Suspicious circumstances in any of the three categories to which I refer above will affect the burden of proof with respect toknowledge and approval.

The burden with respect to testamentary capacity will be affected as well if the circumstances reflect on themental capacity of the testator to make a will. Although the propounder of the will has the legal burden with respect to due execution,knowledge and approval, and testamentary capacity, the propounder is aided by a rebuttable presumption.

Upon proof that the will wasduly executed with the requisite formalities, after having been read over to or by a testator who appeared to understand it, it willgenerally be presumed that the testator knew and approved of the contents and had the necessary testamentary capacity. 27 Where suspicious circumstances are present, then the presumption is spent and the propounder of the will reassumes the legalburden of proving knowledge and approval. In addition, if the suspicious circumstances relate to mental capacity, the propounder of thewill reassumes the legal burden of establishing testamentary capacity.

Both of these issues must be proved in accordance with the civilstandard. There is nothing mysterious about the role of suspicious circumstances in this respect. The presumption simply casts anevidentiary burden on those attacking the will. This burden can be satisfied by adducing or pointing to some evidence which, if accepted,would tend to negative knowledge and approval or testamentary capacity. In this event, the legal burden reverts to the propounder. [20] The Applicant asserts that there are four areas of concern which he alleges amount to suspicious circumstances:

A) Lennard’s age and the fact that the Will was executed 20 days prior to his death

[ 21 ] There is no evidence that at the time the will was signed, Lennard thought he was close to death. [ 22 ] As noted, he was active and living independently. None of the medical information produced reflects any medical concerns about imminent death. The fact that he was 83 years of age is not determinative of anything. His age and the time of execution of the will do not constitute suspicious circumstances.

B) Lennard ’ s prior stroke [ 23 ] Bradley alleges in his affidavit that Lennard ’ s stroke caused him to deteriorate such that he no longer had testamentary capacity. [ 24 ] This assertion by Bradley is not supported by any medical evidence.

There can be no suggestion that Bradley was in any way qualified to make an assessment of mental capacity. [ 25 ] Moreover, it is uncontroverted that in the three year period prior to Lennard ’ s death Bradley had extremely limited contact with his father and had only spoken to him for a few minutes. [ 26 ] There is significant evidence that after Lennard ’ s stroke he continued to function at a high level.

On April 14, 2005 he signed an Enduring Power of Attorney accompanied by a Certificate of Legal Advice from a lawyer confirming that he appeared to understand the nature and effect of the document. [ 27 ] On April 1, 2006 Jean Penno swore an affidavit in the matrimonial proceedings that Lennard was independent and able to reside on his own. [ 28 ] On August 27, 2007 Lennard executed Minutes of Settlement of the divorce proceedings accompanied by a Certificate of Independent Legal Advice. [ 29 ] At no time did Jean Penno or Bradley apply to have a guardian or trustee appointed for Lennard, nor is there any evidence that this was ever contemplated by anyone.

He acted as a trustee for his sister Wanda until his death and there is no evidence that he was unable to fulfil this function properly. [ 30 ] I do not accept that there is any evidence which supports an argument that his medical status constitutes a suspicious circumstance.

C) Marked differences between the 1993 and 2010 Wills. [ 31 ] The 1993 will was a standard spousal will in which Lennard left everything to his then wife with his only child Bradley as the residual beneficiary if Jean predeceased him.

There is no evidence that in 1993 there was any contemplation of Lennard and Jean divorcing nor is there any evidence that Lennard and Bradley were estranged at that time. [ 32 ] Circumstances changed substantially in the 17 year period between the execution of the first will in 1993 and the second will in 2010. [ 33 ] It is uncontroverted that the divorce proceedings were acrimonious. Lennard told Barlow that he felt that Bradley had turned against him in tandem with his wife. He was bitter over the loss of his farm on which Bradley continued to reside and which he inherited

on Jean ’ s death in 2009. [ 34 ] Lennard told Barlow specifically that he did not want Bradley to get anything more than $25,000. [ 35 ] While it is unfortunate that there was a falling out between Lennard and Bradley, the 2010 will reflects that Lennard felt bitterness towards Bradley and in that sense the 2010 will was logical from Lennard ’ s perspective. [ 36 ] In the result, I do not accept that the differences between the 1993 and 2010 wills are evidence of suspicious circumstances.

D) The allegation that Lennard was delusional [ 37 ] It is uncontroverted that Lennard was a strong believer in holistic healing. Bradley argues that his beliefs in the power of holistic healing were deluded such that it can be concluded that he lacked testamentary capacity. It was also argued that the observations of his niece Caroline Brennan are supportive of this conclusion. [ 38 ] I accept that there is some evidence that Lennard was somewhat eccentric and his behaviour in hanging objects within his residence to deter intruders may be fairly characterized as strange and somewhat bizarre.

However, there is no evidence that Lennard was delusional or had ever been so diagnosed. [ 39 ] Moreover, even if one accepts that he was suffering from some delusions, that is not the issue. The law does not require perfect mental functioning in order for an individual to have testamentary capacity. [ 40 ] It is noteworthy that in the seminal case of Banks v. Goodfellow (1869-70) L.R. 5 QB 549, it was noted that the power to make a will is not taken away merely because the proposed maker of a will is suffering from mental unsoundness.

Rather the issue is whether the mental unsoundness affects the ability of a person to make a testamentary distribution. [ 41 ] There is a complete absence of evidence that Lennard lacked testamentary capacity. In the result, I do not accept that his behaviour provides evidence of a suspicious circumstance. Undue Influence [ 42 ] Bradley alleges that Emil and possibly his common law spouse unduly influenced Lennard to leave the bulk of his estate to Emil. [ 43 ] Undue Influence is a species of fraud and as such, any allegation of it must be scrutinized carefully.

Moreover, there is a distinction between influence and undue influence such that the mind of a testator is overborne. [ 44 ] An allegation of undue influence must be supported by evidence. In Keller v. Luzzie Estate at para. 32 the Court of Appeal made the following observation: 32 The test for undue influence is not a matter merely of influence, nor is it met by evidence that the testator may have been operating under an inaccurate understanding of some relevant circumstances.

The “ suspicion ” necessary to force a trial on undue influence, putting an entire will into question, requires more than the mere belief by disappointed potential beneficiaries that their repute with a competent testator must have been unfairly hurt such that their hoped for specific legacy was not included.

[ 45 ] It is uncontroverted that Emil ’ s common law spouse read the will prepared by Barlow to Lennard as he had forgotten to bring his reading glasses with him. She then left the room as did Emil. [ 46 ] There is not a shred of evidence of anything untoward going on between Lennard and Emil and his common law spouse. [ 47 ] Bradley has failed to establish that any undue influence was directed at Lennard prior to his execution of the will on March 26, 2010. Conclusion [ 48 ] The application by Bradley for an order directing that Emil prove the will in solemn form is dismissed.

The Caveat filed by him is ordered to be discharged. [ 49 ] Emil is entitled to recover costs from Bradley. Heard on the 6 th day of March, 2012. Dated at the City of Edmonton, Alberta this 15 th day of March, 2012. R. Paul Belzil J.C.Q.B.A. Appearances: Paul W. Quantz & Paula J. Kinoshita Quantz Law Group for the Applicant Kate L. Hurlburt Emery Jamieson LLP for the Respondent Emil Penno