Zahn v. Taubner, 2012 ABQB 504

Court of Queen ’ s Bench of Alberta Citation: Zahn v. Taubner, 2012 ABQB 504 Date: 20120802 Docket: 0203 00280 Registry: Edmonton Between: Dennis Zahn and Randy Zahn Plaintiff - and - Robert Taubner Defendant Editorial Notice: On behalf of the Government of Alberta personal data identifiers have been removed from this unofficial electronic version of the judgment. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Gerald A. Verville _______________________________________________________

Introduction [ 1 ] Kathe Ford (Ford) executed Wills in April and May 2000. Dennis Zahn and Randy Zahn (the Plaintiffs) seek a declaration that these Wills are invalid. They assert that there were suspicious circumstances surrounding the execution of these Wills, that Ford lacked testamentary capacity when she executed each Will, and that there was undue influence. The Defendant Robert Taubner, executor of the estate, denies these assertions. Agreed Facts [ 2 ] Ford, otherwise known as Kay, K. or Katie, was one of five children. She was born February 15, 1933 to Paul and Anna Taubner.

Ford ’ s sister, Anita Wilson, predeceased her leaving two surviving children. Ford ’ s three brothers are still alive: Dr. Rudolf Taubner (Rudy), a neurologist who lives in the United States of America; Dr. Eric Taubner (Ric), a psychiatrist who lives in Edmonton; and Robert Taubner (Bob), a machinist and businessman who also lives in Edmonton. Each brother has several surviving children. [ 3 ] Ford did not have any children. She was once married to Henry Ford, who died on March 7, 1972. She took and retained his family name all her life.

Henry Ford had three children from a prior marriage: Edwin, Ronald and Betty Lou. [ 4 ] Otto Zahn and Ford commenced a common-law relationship in the mid 1970s. Otto Zahn had three children: Dennis Zahn (Dennis), Randall Zahn (Randy) and Richard Zahn.

He divorced their mother in the early 1970s. [ 5 ] Paul Taubner, Bob Taubner and Otto Zahn were in business together in a company known as Alco Gas and Oil Production Equipment Ltd. (Alco). [ 6 ] In the 1980s, Otto Zahn and Ford lived together in Calgary, Alberta. [ 7 ] In the late 1980's, Otto Zahn and Ford moved to 1[...] Madrona Drive, Nanoose Bay, Vancouver Island. Ford lived there with him until 1991, when they separated. Following the separation, Ford and Otto Zahn negotiated a settlement agreement in which she received $112,000. [ 8 ] Sometime in 1993, Otto Zahn resumed cohabitation with Ford.

On December 14, 1993, Otto Zahn prepared his last Will, in which he gave his RRSP and the Nanoose Bay residence to Ford, and the residue to his three sons. They separated again in 1996, and on August 27, 1996 they executed a further separation agreement. [ 9 ] Following the 1996 separation, Otto Zahn and Ford periodically lived together. They separated for the last time sometime in late 1997 or early 1998. Ford relocated to her parent's home in Edmonton.

She lived in the basement and helped to care for her parents Paul and Anna Taubner, who were advanced in age and needing care. [ 10 ] Otto Zahn died on August 25, 1998. A settlement agreement with Otto Zahn's estate was entered into on May 12, 1999, in which Ford gave up the bequests under his Will in exchange for $500,000. [ 11 ] In the fall of 1999, Ford was diagnosed with terminal lung cancer. She travelled to the Dana Farber Cancer Institute in Boston for a consultation. She also underwent treatment, and was hospitalized at the Cross Cancer Institute in Edmonton.

[ 12 ] Having been one of the principle caregivers of her aged and infirm parents, Ford herself became one of the infirm members of the household. She lived in the basement where a hospital-style bed was later provided for her. [ 13 ] At the time of Ford's diagnosis, there were two part-time caregivers in the Taubner household: Jenny Arends, who primarily looked after the Taubners, and Nadeza Glavonjic (Nadia) who in time was dedicated solely to Ford ’ s care. [ 14 ] On March 17, 2000, Ford was admitted to the Grey Nuns Hospital in Edmonton. On May 1, 2000, she was transferred to St.

Joseph's Hospice, where she died on May 25, 2000. [ 15 ] Ford's estate consists primarily of a securities portfolio, a GIC, approximately $36,000 in cash, various pieces of jewellery and a one half interest in Taubner Holdings Ltd., a company originally established by Paul Taubner and Henry Ford (the Ford Estate). Taubner Holdings Ltd. has real estate interests. Background and Additional Facts [ 16 ] An extended Taubner family tree was provided which included the Ford children and the Zahn children.

Further, it identified Reed and Spencer Taubner as the children of Ric; Kathleen, Sarah and Lara Taubner as the children of Rudy; Brook and Shannon Sea Taubner (Sea) as the children of Bob; and Craig Wilson and Heather Wilson MacDonald (Heather) as the children of Ford ’ s deceased sister, Anita Wilson.

As well, Ingrid Ward was identified as the first wife of Rudy Taubner and the mother of his three children. [ 17 ] Ford executed three Wills on the following dates: September 27, 1985 (the 1985 Will); April 4, 2000 (the April Will) and May 5, 2000 (the May Will). [ 18 ] The Plaintiffs and their brother Richard are the residuary beneficiaries under the 1985 Will. [ 19 ] The Defendant, Bob, is the executor of Ford ’ s estate under both the April and May Wills and is also a residuary beneficiary in both Wills along with his two brothers, Rudy and Ric. [ 20 ] The April Will has not been submitted to probate. [ 21 ] The parties provided a binder which contained portions of pleadings in four separate actions namely; 112153 (Surrogate action), 0203 00280 (this action), 0303 03158 (Ward action) and 0403 02515 (Ford action).

The latter three actions all seek a declaration that the May Will is invalid. In a Case Management Order dated March 14, 2007, Belzil J. directed that all of the matters be tried concurrently with all of the evidence in all of the actions applying in all of the other actions. [ 22 ] Edwin Ford, Ronald Ford and Betty Lou Asshoff also known as Betty Lou Ford, the children of Henry Ford, are the plaintiffs in the Ford action.

Ingrid Ward, a former wife of Rudy, is the plaintiff in the Ward action. [ 23 ] A settlement agreement made effective November 30, 2010 (Settlement Agreement) between Ric, Bob, Rudy, Heather, Craig Wilson, Ingrid Ward, the estate of Paul Taubner and the estate of Anna Taubner, resolved certain litigation. [ 24 ] Pursuant to the Settlement Agreement, the Ward action inter alia was settled for $300,000. In consideration for this settlement, Ingrid Ward assigned her claim against the Ford Estate including costs to Bob as trustee for himself and his brothers.

[ 25 ] The Settlement Agreement also resolved inter alia litigation brought by Heather against Ric and Bob with respect to the transfer of Paul Taubner ’ s shares in Alco to Bob. This was decided by Graesser J. in Taubner Estate (Re) , 2010 ABQB 60 (Graesser Judgment) . [ 26 ] All of the individual parties to the Settlement Agreement testified in this trial except for Rudy and Ingrid Ward. [ 27 ] Counsel for the Defendant advised that the Ford action has also been settled. [ 28 ] After the death of Otto Zahn, there was litigation between his sons and Bob with respect to Alco.

This litigation was ultimately settled and Bob acquired their interest in the company. [ 29 ] Douglas Lynass (Lynass), an Edmonton solicitor, prepared the April Will and the May Will. He was cross-examined and re- examined with respect to portions of the Graesser Judgment on the understanding that a ruling at the end of the trial would be made with respect to what, if any, use could be made of that judgment in this case. [ 30 ] The parties by agreement had Lynass appear as the first witness to testify although he was in fact a witness for the defence, the purpose being to “ set the stage ” .

The Plaintiffs ’ witnesses then testified in the normal course followed by the other witnesses for the defence. Evidence of Witnesses Douglas Lynass [ 31 ] Lynass testified that he was called to the bar in 1976 and conducts a solicitor ’ s practice in Edmonton. He acts for small and medium size private corporations, and does real estate transactions and wills for people who own these companies. [ 32 ] Lynass stated that he grew up in the Belgravia area of Edmonton (which was also the home of the Taubner family), and was a good friend of Ric in junior high and high school.

He met Ford who was Ric ’ s older sister while chumming with Ric. He subsequently lost contact with Ric when they went to different universities. He stated that he gave Ric some advice with respect to a power of attorney and prepared some wills for the Taubner family in 1997 and 1998. He knew Bob peripherally when they were kids and stated that he currently lives down the street from him. He testified that Bob used other law firms for most of his legal work, but sent him small work from time to time.

He never acted for Ford. [ 33 ] Lynass made contemporaneous notes of telephone calls and attendances with respect to the Wills. When he learned they were being challenged, he typed a 38 paragraph affidavit, sworn December 12, 2000, from the notes he had prepared. He stated when testifying on June 11, 2012 that although he had some memory of specific events, he was relying almost entirely on his affidavit. [ 34 ] On February 1, 2000, Lynass received a telephone call from Ric advising that Ford was ill from lung cancer and living in the rumpus room of her parents ’ home in Belgravia.

He was advised by Ric that Ford was physically weak but mentally competent. He was further advised that Ford had a will and a health care directive naming Nancy Taubner (Bob ’ s former wife), an enduring power of attorney was probably needed, there were no children nor a spouse, and the estate was worth about two million dollars in cash or investments that were liquid, plus an interest in Taubner Holdings which owned two small properties on Calgary Trail. He stated that he relied on Ric ’ s advice that Ford was mentally competent, as Ric is a psychiatrist.

Otherwise, he would have suggested that Ford be assessed. [ 35 ] Lynass stated that he understood that Ric would speak with Ford and get back to him, but he did not hear anything further until March 1, 2000 when he received a call from Bob who informed him that his sister was dying. Bob advised that he was concerned

about his sister being influenced by the caregiver Nadia, who he believed was stealing small amounts of money from Ford. Bob told Lynass that Ford wanted a power of attorney and a Will, and that another solicitor who had represented her (Gary Cooper) was not appropriate, as he was too close to Bob to be involved. [ 36 ] Lynass was given Ford ’ s telephone number. After a couple of attempts he was able to speak with Ford on March 1, 2000. She advised that her current Will was very old and did not apply, and he was given to understand that it did not contain any trusts or sophisticated estate planning.

He stated this was his only concern about the existing Will. He also discussed an enduring power of attorney. Finally, he was advised by Ford that she wished to ensure that her arrangements with Nadia were clearly defined so that Nadia would not feel insecure and leave her position as caregiver. [ 37 ] On the morning of March 4, 2000, Lynass again spoke with Ford and made arrangements to meet with her. Lynass stated that he attended at the Belgravia home where Ford was living at about 1:00 p.m. on March 4, 2000. He was shown in and taken to the rumpus room in the basement by Bob.

Lynass stated that Ford remembered him, and the fact that he used to hang around with her brother Ric. She also mentioned people in the group he and Ric chummed with. He recalled that Bob left after introductions and Nadia stayed, and they then carried on a general discussion. The discussion included the issue of Nadia feeling insecure in her job because of a conflict with Ric, a general description of Ford ’ s assets, the personal directive, the power of attorney and the beneficiaries in the Will.

Lynass recalled that Ford initially suggested that he have power of attorney but he advised her that this was not practical. It was eventually agreed that Bob would have power of attorney, as Ric was too busy and had problems with Nadia. [ 38 ] Ford signed the personal health care directive appointing Bob as her agent, and the enduring power of attorney appointing Bob as her attorney, with Ric as the alternate attorney. Her instructions with respect to a Will were that her brothers Ric, Rudy and Bob would each get a third of the residue with $30,000 to each of Otto Zahn ’ s three sons.

Ford advised Lynass that no one else would receive cash, but she would provide details with respect to the distribution of her jewellery to nieces and so on. Lynass stated that he did not have any concerns about Ford ’ s mental capacity while taking her instructions, and that neither Bob nor Ric at any time mentioned to him what should go into the Will. [ 39 ] Lynass next had contact by telephone with Ford on March 16, 2000 to inquire about the disposition of her jewellery and was advised that she was still working on it and would have it done by the weekend.

On March 22, 2000, he received a call from Bob advising that Ford was in a coma and in poor condition and unlikely to come out of it. He stated that he felt at that time he had simply “ missed the boat ” in getting the Will prepared. [ 40 ] On April 2, 2000, Lynass received a call from Bob and Ric advising that Ford had bounced back. He was advised that Bob had not looked at the power of attorney. The brothers expressed concerns to him about Nadia manipulating everyone and getting money from Ford. He advised Bob to go to the bank with the power of attorney and make sure he had some control over the bank account.

An employment contract for Nadia was discussed and arrangements were made to meet with Ford at the Grey Nuns Hospital in the palliative care ward. On April 4, 2000, Lynass attended at the ward to discuss the employment contract for Nadia. At that time, he also received instructions with respect to the disposition of Ford ’ s jewellery. [ 41 ] Lynass stated that he felt that Ford was in pretty good shape on April 4, 2000 when discussing the employment contract and giving instructions with respect to the jewellery.

The employment contract was relatively simple, and following a short discussion it was executed by Ford and Nadia, and copies were given to each of them. [ 42 ] Lynass stated that he also brought with him a boilerplate Will (the April Will) with a large blank in it for the jewellery disposition. Although he had initially made notes with respect to the individuals who were to receive the jewellery, he subsequently suggested that they be put into the Will. The instructions in Lynass ’ handwriting were then inserted in the blank portion of the Will, initialled by Nadia and Ford, and the Will was executed.

He stated that it had been his understanding that Bob was to come to the hospital and bring a witness, but as he did not show up, Lynass decided to use Nadia as the witness. [ 43 ] Lynass explained that he was not entirely happy with the wording in the handwritten portion, and decided he should prepare a fully typed version which cleaned up the language without in any way changing Ford ’ s instructions.

He stated for example that he explained to Ford that he was not sure about the wording “ diamond ladies wrist watch to Randy Zahn for his future wife ” and recalled that she jokingly told him that was his problem or words to that effect. In the fully typed Will (the May Will) he changed this wording to read “ to Randy Zahn, for his future wife, my diamond ladies ’ s wrist watch, and if he has not married within 6 years of receiving that watch, then to Randy Zahn for his own use absolutely ” .

[ 44 ] Lynass advised Bob on April 6, 2000 that the employment contract for Nadia was in place. Lynass further advised Bob to find out where Ford ’ s assets were situated. He recalled that he went to see Ford for the purpose of having the typed Will executed on April 6 and 11, 2000 but she declined to see him on both occasions as she was not feeling well. On May 3, 2000, he received a call from Bob advising that Ford had been moved to St. Joseph ’ s Hospice. [ 45 ] Lynass attended at St. Joseph ’ s Hospice on May 5, 2000 without appointment and met with Ford, at which time she executed the typed Will.

He stated that although Nadia was initially present, she left the room. He went over the Will with Ford and explained to her that he had “ cleaned up ” the wording without changing her intentions. As Nadia had not returned when their discussion was complete, he asked a nurse who was in the room whether she would be willing to witness the Will. She agreed.

Lynass stated that Ford was alert at this time, knew who he was and was aware of the events going on around her. [ 46 ] Lynass made a note of a telephone call with Bob on May 15, 2000 where Bob asserted that Nadia had inflated her hours of work and was looking for other employment, and there was a discussion of her severance. [ 47 ] Lynass confirmed that he did not know what medication Ford was on, or whether she was consuming significant quantities of alcohol at times, or experiencing episodes of delirium, but he was aware from his discussion with Bob on March 22, 2000 that she had lapsed into a coma.

He stated that on the occasions he met with her she seemed to have the “ brains ” and wit to know what was going on, that she did not look delirious, and nothing even triggered the thought of having her capacity checked. [ 48 ] Lynass confirmed that he was aware that there was litigation and animosity between the Taubner family and the Zahn family, and that he was advising Ric with respect to the enduring power of attorney for his father. He stated that he knew Ford had lived with Otto Zahn and understood that she regarded his sons as family and thought well of them.

Lynass stated that he had no knowledge of grandchildren. He testified that he thought it was a generous and significant gesture for Ford to leave $30,000 to each of the Zahn brothers, and recalled her stating that they had received their share from Otto Zahn ’ s estate. [ 49 ] Lynass further confirmed that he knew that Ford had become very attached to Nadia and wanted her there to the end of her days.

He stated that Nadia did not seem to be a bad sort of person, and if she was receiving more money than she should have while caring for Ford it was a small price to pay. [ 50 ] Lynass also confirmed that the $500,000 Ford had told him was in a Royal Bank account was not there. [ 51 ] Lynass was examined with respect to a portion of the Graesser Judgment which dealt with the capacity of Paul Taubner and more particularly a video recording. Lynass stated that he had never seen the video nor been examined on it.

He testified that the sale of shares in Alco from Paul Taubner to Bob was a very sophisticated transaction that many people do not completely understand, and that his understanding of the video was that it was to simply show that Paul Taubner was being informed that he was no longer going to own the company and that it was moving over to Bob. Dennis Zahn [ 52 ] Dennis testified that over the years he worked for different companies in the oil patch.

He worked for Alco for periods of time, but at the time of his father ’ s death in 1998 he was working for another company. [ 53 ] Dennis stated that his father, Otto, came to Canada from Germany and initially worked for Paul Taubner. He described his fathers ’ ongoing working relationship in Alco with Paul Taubner and Bob over the years, and how Otto had been a major contributor in turning the company into a “ cash cow ” . Dennis stated that Paul Taubner and Bob each owned one third of the equity in Alco, and his father owned the other third.

However, his father had equal voting shares. [ 54 ] Dennis and his two brothers were each left a third of their father ’ s estate. They had to transfer the shares in Alco out of their father ’ s company after his death. Dennis stated that Bob would not agree to this, and that in early September 1998 he learned that Bob

had declared himself president of Alco and appointed his lawyer, Gary Cooper, as a director. [ 55 ] Dennis confirmed that this led to some animosity and litigation ensued. Paul Taubner ’ s shares apparently did not have voting rights, and Bob wanted 2/3 of the voting rights when he acquired his father ’ s shares. The litigation was resolved over time, with Bob and Dennis becoming directors of Alco, and Gary Cooper being removed from the board.

Finally when they could not agree on expanding the business, Bob purchased the Zahn brothers ’ equity in Alco. [ 56 ] Dennis described Ford as vivacious, outgoing, a free spirit, bubbly and a person who made his father happy. Shortly after Ford ’ s husband (Henry) died, Otto Zahn divorced his wife and entered into a common law relationship with her. Dennis was about 19 years old at the time. Dennis described it as a tumultuous relationship which was pretty solid. He stated that his father and Ford were both alcoholics and described them as drinking buddies.

They initially lived in Calgary and later at Nanoose Bay on Vancouver Island. He said that his father lived the lifestyle of the rich and famous and that after the final separation with Ford, he took up with a number of other women, some of whom were very undesirable types. [ 57 ] Dennis stated that Ford became a second mother to him and a grandmother to his children. He produced a number of cards Ford had sent to his three children on occasions such as Easter, Valentines Day and Christmas. [ 58 ] He stated that Ford had signed a separation agreement giving up any interest against his father ’ s estate.

However, after his father ’ s death the final Will was located. That Will named Ford as beneficiary of the Nanoose Bay property and an RRSP. Dennis recalled receiving a letter from Gary Cooper, whom he considered to be Bob ’ s lawyer, demanding $850,000 for Nanoose Bay plus the RRSP which totalled about a million dollars.

He stated that after meeting personally with Ford, they were able to settle for $500,000 pursuant to a settlement agreement and release dated May 12, 1999. [ 59 ] Dennis was cross-examined with respect to a letter dated April 15, 1999 that he sent to Ford in which he stated that her demands were entirely unreasonable, expressed his disappointment and hurt, and stated that it would be difficult to continue to think of her as a friend, mother and grandmother if she placed more importance on trying to get as much as she could rather than preserving their relationship.

There was also reference to the fact that Otto Zahn should have destroyed the Will after signing the separation agreement, and that it was just a stroke of luck that he had not remarried as otherwise the Will would have been invalid. Further, he stated she should stand up to her brother (Bob), and get what was morally and justifiably hers from her father ’ s estate rather than taking hundreds of thousands of dollars from the Zahn families ’ inheritance.

Dennis stated that this was simply posturing. [ 60 ] Dennis testified that Ford stated that she needed the $500,000 for her security but told him “ don ’ t worry you will get it all back ” . He stated he was never told what was in the Will but understood that he and his brothers would be the main beneficiaries. [ 61 ] Dennis stated that he received a telephone call from Bob in October of 1999 advising that Ford had cancer. He stated that this was at a time when he was in an adversarial relationship with Bob.

He phoned his brother Randy, who was living in Vancouver and the two of them visited her in the rumpus room. He stated that Ford was in pain but upbeat and did not mention or admit to having terminal cancer. Dennis stated that he visited Ford whenever he came to Edmonton. [ 62 ] In about February of 2000, Dennis learned indirectly through Nadia that there was pressure on Ford to change her Will. He drove up to Edmonton from Calgary and asked if there was anything he could do to help, but was told that she had a Will and an executor she could trust.

He recalled Ford saying: “ Don ’ t worry, despite my pain and condition I am strong and won ’ t change anything ” and further stating that it looked like the vultures were circling. [ 63 ] He recalled later seeing Ford in the Grey Nuns Hospital when she did not know who he was and thought she was in her parents ’ basement. He stated that he last saw Ford in May at St. Josephs ’ s Hospice and was shocked as he had never seen someone near death before. He was not sure if she recognized him at that time. [ 64 ] Dennis denied seeing the 1985 Will before Ford ’ s death.

He stated he was concerned about pressure being put on Ford, and that his lawyers suggested that Nadia should make notes of her observations. Dennis denied collaborating with Heather but confirmed that he received a letter from her within a week of Ford ’ s death. He stated that they both knew that there was pressure in the home for

Ford to change her Will. Randall Zahn [ 65 ] Randy testified that after his father and mother divorced he initially lived with his mother. He first met Ford on December 21, 1974 along with his two brothers at his father ’ s house in Calgary. He stated that he had purchased a necklace for his girlfriend for Christmas, but gave it to Ford as he did not know she would be there. He recalled that his father and Paul Taubner were close friends at that time. [ 66 ] Randy considered Ford as his step-mother and stated that she treated him well.

He stated that he was about 16 years old at this time and that they developed a close relationship. He said he would play hookey from school and play pool with Ford. He recalled that Ford and his father did not fight about personal things, but that there was agitation about Alco and Bob even though Ford agreed with Otto. [ 67 ] Randy moved to Toronto and later to Vancouver. He stated that when living in Vancouver he would visit Ford and his father in Palm Desert and at Nanoose Bay. He stated that when his father died he learned that the Nanoose Bay property had been left to Ford.

He testified that this was fine with him as it was retirement property but that he did not want the house to be sold. He learned through Ford that Bob and his lawyer Gary Cooper were involved with respect to the settlement of his father ’ s estate. He said that Ford ultimately agreed to a settlement and accepted $500,000. Randy confirmed that at this time he was very busy as he was involved in several issues concerning his deceased father ’ s estate, separating from his common law wife, and fighting with Bob over Alco.

He had little contact with Ford during this period. [ 68 ] Randy stated that upon learning that Ford had lung cancer he went to visit her and was surprised that she appeared to be living in the basement rumpus room the on the sofa of a small bungalow. He felt it was ridiculous that she was living in these conditions. He stated that she indicated she wanted to buy a small apartment building, namely a four or six-plex with “ their ” money namely the $500,000.

He made several visits to see Ford when he was in Edmonton between September 1999 and April 2000, and talked to her about once a week on the phone from Vancouver. [ 69 ] Randy stated that he knew Ford was in pain and was always drinking. He described her as a closet alcoholic. He could not recall when he first met Nadia but stated that in about November of 1999 she asked him to pick up a bottle of Vodka and Dubonnet for Ford. He phoned Bob to ask if it was all right to do this and received his blessing. [ 70 ] Randy subsequently learned from Nadia that Ford was being pressured by the family about a Will.

He stated that he spoke to Ford about it and was told that she had a Will and was fine. He did not press the issue as it was not his business. He recalled visiting on February 16, 2000 and meeting Rudy for the first time.

He was told by Rudy that Ford had told him that he and his brothers were getting most of the estate and that the Taubner brothers were getting the warehouses. [ 71 ] He saw Ford again on March 30, 2000 when she was in the Grey Nuns Hospital but stated that she was in poor physical state and not responding when he tried to talk to her. [ 72 ] On April 4 or 5, 2000, Randy received a call from Nadia advising that there was major pressure and that she thought Ford had signed a Will.

He stated that Nadia told him they were threatening to take her away from Ford ’ s care and that Bob was in the room when the Will was signed. [ 73 ] Randy stated that his final visit was on April 24 and 25, 2000 and that while Ford could not see, she could hear and they rented a funny movie. He did not see her again. Nadeza Glavonjic

[ 74 ] Nadia was born in Serbia and came to Canada in 1994 with her husband and three children. She had training in occupational therapy in Serbia. She could not speak English on her arrival, but took English as a second language courses. In 1999, while working at another job, she saw an advertisement for part-time work as a caregiver and was interviewed and hired by Ric. [ 75 ] Initially, Nadia worked on Saturdays and would take Paul and Anna Taubner out for supper and so on. Later, she began to work full time for the Taubners.

She met Ford, who was living in the basement of the Taubner house prior to being diagnosed with cancer. In about September of 1999, Nadia learned from Ric that Ford had lung cancer and she began spending more time with her when on shift while also caring for Ford ’ s parents. She began to work shifts of 24 hours on and 24 hours off. [ 76 ] Over time Nadia and Ford became friends. She stated that Ford was scared and did not want to die. She described Ford as a unique person who was opinionated, straightforward and said what she thought.

In early 2000, after Ford returned home from the Cross Cancer Institute, Nadia became more involved in her care. [ 77 ] Nadia confirmed that Ford drank a lot while at home, and liked Vodka, Dubonnet and sometimes drank Blue Nun wine. She was aware of the various pain medications Ford was taking and was not sure whether she drank because of pain or was simply looking for comfort. [ 78 ] Nadia stated that Ford did not want to talk about cancer other than to say: “ I will fight it, I will get better ” . She said Ford did not mention cancer or acknowledge it and was going to fight it until she went to St.

Joseph ’ s Hospice in May 2000. [ 79 ] Nadia stated that in January 2000, Ford had no appetite and had trouble eating. Nadia stated that at times Ford would make comments which did not make sense and was hallucinating. Nadia stated that this was constant from January 2000 onward. [ 80 ] Initially, Nadia slept upstairs when on shift, but later slept on the couch in the rumpus room after Ford was in a hospital bed. She stated Ford called her “ my girl ” . [ 81 ] Nadia stated Ford had trouble paying bills as she needed a magnifying glass to see.

She stated that she never saw her read with glasses. [ 82 ] Nadia stated that she got to know many of the members of the Taubner extended family and that she saw Bob and his ex-wife Nancy quite often. She recalled that Ford loved the boys (referring to Otto Zahn ’ s children), especially Randy. [ 83 ] Nadia testified that Ford did not talk about her financial affairs. She recalled that Bob told Ford to get things in place and think about her financial affairs, but that Ford did not think she would die, that she had a Will and did not need a new Will.

Nadia was unfamiliar with the term “ personal directive ” but was told by Ford that is was for when “ one pulls the plug on the machine ” . [ 84 ] Nadia recalled that Ric was not happy about Ford being sick and dying in the house when his parents were there. Later, Paul Taubner was moved to a care home and there was a discussion as to who would look after Ford and who would look after her mother Anna. She recalled an argument between Ric and Ford. [ 85 ] Nadia stated that on one occasion Ric ’ s wife Barbara came to visit Ford and essentially ignored Nadia.

She subsequently went upstairs to ask Barbara what was wrong and was told that the family was unhappy with Nadia and felt she might influence Ford to leave money to her. Nadia stated that she offered to quit once a replacement was found and was told that if a personal directive and everything was in place she might stay. She then told Ford that the family would not doubt her if everything was in order, and that Ford was afraid they were going to take her away.

She stated that Lynass prepared a document to protect her so that the family could not fire her. [ 86 ] Nadia stated that she told the Zhan brothers about her concerns. She stated that in her opinion they were not after Ford ’ s money.

[ 87 ] Aside from the Zahns, Nadia recalled that Ford was close with Heather when she visited in February, and with Sea who she recalled was travelling a lot at the time. She also recalled Ford got along well with John Bradley who was dating Sea. [ 88 ] Nadia recalled Lynass coming in early March and a discussion taking place in the basement. In particular, she recalled Ford saying: “ I need some documents to protect ‘ my girl ’ ” . She remembered mention of an employment agreement, a Will and a personal directive.

Nadia stated that she and Bob, who was also present, went upstairs for a half hour or so while Lynass met privately with Ford.

After she returned to the basement, Lynass requested a list of the jewellery but Ford later indicated to her that she was not going to prepare one. [ 89 ] Nadia ’ s recollection is that Ford ’ s mental condition continued to deteriorate, she was hallucinating at times and somehow developed the idea that the other caregiver was poisoning her when Nadia was not on shift. [ 90 ] Nadia testified that Ford told her that Barbara influenced Ric and noted that Ric and Ford had disagreements. [ 91 ] Nadia stated that she was being paid by Ric but on one occasion he was late and Ford wrote her a cheque which she cashed.

When Ric later brought the cheque, Ford told her to keep it and she did so. Nadia stated that Ford wanted her to have nose surgery and offered to pay for it but that she declined. Over time, Ford gave her small amounts which totalled one month of salary stating that if she gave it all at once her family would sue. [ 92 ] Nadia stated that Lynass drew up the employment contract so that she could stay with Ford until the end, and that after leaving for 10 to 15 minutes she came back and witnessed the April Will. She recalled Lynass stating that he would retype the portion of the Will that was handwritten.

She recalled that Lynass came back twice but that Ford told him it was not a good day and that on the third occasion when the May Will was witnessed by a nurse, Ford was not in good shape nor was she talking very much. [ 93 ] Nadia confirmed that Ford liked her brother Bob. She recalled that he came to the hospital every day. She confirmed that she and Bob mutually agreed on her severance. [ 94 ] Nadia earlier indicated when first examined, that she did not know what was in the Will.

However, she admitted that she had also testified, when examined for discovery, that Ford had told her that there were changes in her Will. She explained that the discrepancy resulted from the fact that the November 2009 examination for discovery was during a period when Nadia was depressed and on medication because of the death of a daughter. Nadia confirmed that she never told Lynass that Ford was being pressured. [ 95 ] Nadia stated that she made notes of her recollections from time to time.

She summarized incidents from time to time stating that she never thought she would need them and that they were prepared for her protection. They were written in English rather than in her native language and given either to the Zahns or their lawyer after Ford ’ s death. The handwritten notes were subsequently typed by Zahns ’ then lawyer. Heather MacDonald [ 96 ] Heather testified that she had a very close relationship with Ford, whom she described as a wonderful aunt. She stated that Ford was larger than life and made everyone feel they were special.

Heather moved to Scotland with her husband in September of 1999. She learned that Ford had cancer and stated that she received a call from Nancy Taubner stating that Ford was not well and that she should come back if she wanted to see her alive. She returned to Edmonton and visited her aunt from February 21, 2000 to March 3, 2000. [ 97 ] Heather stated that she was shocked when she first saw Ford, who was bedridden and emaciated. Ford thought Heather was her sister. She noted that her aunt was on a lot of medicine including morphine at the time and that she was making irrational statements.

[ 98 ] Heather heard Ford say that nobody loved her but Nadia, which in her view was very irrational. Heather stated that Nadia in her view was a warm, affectionate person who did things out of kindness but who blurred the boundaries of professional care.

For example, if Ford smoked, Nadia smoked with her. [ 99 ] Heather felt that Ford was not receiving the care required, and was concerned about Ford getting a better palliative care physician and better notes being kept by Nadia and the other caregiver, neither of whom were trained nurses, and Heather spoke with the nurses who attended from time to time on Ford. [ 100 ] Heather confirmed that she had been involved in litigation with her uncles Ric and Bob concerning the sale of her grandfather ’ s shares in Alco.

She stated that the Zahns did not provide assistance with respect to valuations as it apparently affected their position. She had a very negative view of Lynass who had assisted her uncle Ric. [ 101 ] Heather stated that Dennis and Randy Zahn were very close to her aunt. She felt it odd that there was no provision for her brother Craig in the April or May Wills, nor for Sara Taubner when there was a jewellery provision for her two sisters.

Further, she stated that her aunt adored Reed and Spencer Taubner (Ric ’ s two children) and Brook Taubner (Bob ’ s son) and again stated she was surprised that there was no provision for them. She expressed similar surprise that there was no provision for Henry Ford ’ s three children. [ 102 ] With respect to the Ward action which was settled, Heather stated that she agreed to fund Ingrid Ward ’ s case as it was the right thing to do.

She stated that her concern was that Ford did not have the capacity to give instructions and to execute the April and May Wills and that someone influenced her. [ 103 ] Heather confirmed that she faxed a letter dated June 1, 2000 to the Zahns. In that letter she stated in part: Thursday morning February 30 th , 2000 as I arrived at my grandmothers ’ to visit her and my aunt Kathe, my uncle Robert Taubner was preparing to leave. In the kitchen he was talking to me and stated emphatically “ That $500,000 is mine, Kathe used my lawyer, Gary Cooper to obtain it, therefore it should be my money ” .

He also stated that he would be bringing Doug Lynass a lawyer over to see Kathe to attend to the matter of the $500,000 and to obtain Power of attorney so that Kathe ’ s interests are protected. I believe Jenny Arends was present in the kitchen when he made this statement. I later asked Robert if he felt this was a proper course of action to take considering the amount of medication his sister was on and her general state of being. He ignored my question. Dr. Seema Hussain [ 104 ] Dr. Hussain is a psychiatrist with sub-specialty qualifications in psychosomatic medicine and hospice/palliative care.

She works in Calgary in the department of psychiatry at the Foothills Medical Centre. She was qualified to give expert testimony on behalf of the Plaintiffs with respect to testamentary capacity and undue influence. She has done numerous assessments as a practising physician. Dr. Hussain reviewed a number of materials including hospital records, home care records, examinations for discovery, Ford ’ s Wills, as well as a number of scholarly articles. [ 105 ] Dr.

Hussain confirmed that she had not seen the affidavit of Lynass prior to preparing her opinion but was conversant with it at the time of trial. [ 106 ] Dr. Hussain noted that Ford was admitted to the palliative care unit at the Grey Nuns Hospital on March 17, 2000 due to severe delirium and suspected psychological distress.

She stated that the cause of delirium was unclear but it was suspected that it was related to opioid toxicity and liberal use of the drug Ativan, possibly aggravated by alcohol withdrawal. [ 107 ] She reviewed a number of Mini-Mental Status Exam (MMSE) results, noting that at times Ford made nonsense comments when questioned. For example on March 21, 2000 her MMSE score was 8/30 and she answered “ you know banana ” in response to a question as to how old her parents were. Dr. Hussain testified that there is research indicating that MMSE scores underestimate the prevalence of decision making capacity.

[ 108 ] Dr. Hussain was of the opinion that there was significant medical evidence that Ford suffered from a mental state disorder in the form of altered mental status/delirium which was clinically documented in several time periods. For example, she noted that on March 28, 2000, a week before the execution of the April Will, her MMSE score was 8/30 and that on April 10, 2000 some six days after its execution her score was 25/30 indicating that her cognitive abilities remained impaired in the days surrounding the execution. [ 109 ] Further, Dr.

Hussain noted that notwithstanding MMSE scores of 27/30 on May 4 and 5, 2000 Ford made identical errors in both assessments in that she was not aware of the month, date or floor of the hospital. Dr. Hussain noted a comment in the St. Joseph ’ s Hospital chart which said “ fabricates some truths ” , stating that confabulation is an indication of an effort to mask cognitive impairment and the inability to remember what actually happened. [ 110 ] Dr.

Hussain conceded that while it is possible for an individual to make a valid decision in a lucid interval, from the information she reviewed it was unlikely to be the case as there were several significant medical factors which likely contributed to Fords delirium, particularly pain medications which may cause direct central nervous system (CNS) effects on cognitive abilities, and indirect CNS effects by causing respiratory acidosis, which in turn results in cognitive impairment.

Further, she stated that alcohol consumption continued to be problematic and can contribute to cognitive difficulties in a number of ways including direct CNS depressant effect, and indirect CNS effects by way of leading to malnutrition, thiamin (vitamin B1) deficiency and hypervolemic hyponatremia (low blood sodium occurring from the volume of alcohol consumption). Finally, Dr.

Hussain mentioned lack of treatment of Syndrome of Inappropriate Anti-Diuretic Hormone (SIADH), which would be associated with hyponatremia (low blood sodium) which is a potential cause of altered mental status delirium and low level of responsiveness on measures of alertness, such as low Glasgow Coma Scale (GCS) scores which indicate an elevated risk of subsequent delirium. [ 111 ] Dr. Hussain further opined that Ford ’ s confusion is evidenced by her difficulties in recognizing her natural heirs.

For example, she left out her niece, Lara, and her sister in law, Vincenta, without a clear basis for the omission, and months before her death she mistook her niece for her deceased sister and one of her stepsons for another stepson. [ 112 ] With respect to undue influence, Dr.

Hussain stated in her report that it was worth noting that Ford did not execute a new Will until approximately six months after receiving a diagnosis of terminal illness and was subjected to unusual amounts of control and coercion which continued during fluctuations of her mental status, including: - she was allegedly threatened with the loss of her caregiver if she did not meet with the attorney (this is set out in the Chronology [Dr. Hussain] reviewed); - she lived in the basement of her parents ’ home and was dependent on others for many of her daily needs (this is set out in the Chronology [Dr.

Hussain] reviewed). It is apparent that a trusting relationship existed between Robert and Ms. Ford; and - it is notable that Robert Taubner was not named as a beneficiary in the Will made by Ms. Ford prior to April 2000. One of the warning signs for coercion [Dr. Hussain looks] for when assessing patients is whether there was a sudden change in the Will, especially when that change was in favour of the person who is assisting with the Will. This is notable because the relationships did not change, but the distribution did.

Robert Taubner [ 113 ] Bob testified that he visited Ford at his parents home two to five times a week on average. He stated that she was a bubbly, happy person with enthusiasm for life who was strong willed, opinionated and held nothing back if she had a disagreement. He said that they loved each other. [ 114 ] Bob confirmed that there were disputes over the business between himself and Otto Zahn, but that generally they got along well. He confirmed that he had been in litigation with the Zahn brothers after Otto Zahn ’ s death.

[ 115 ] With respect to Ford ’ s litigation with the Zahn brothers, Bob stated that he knew the Zahns wanted to keep the Nanoose Bay property. He denied having anything to do with the litigation, stating that Ford had counsel but it did not go to trial. He confirmed that he phoned Dennis to inform him that Ford had been diagnosed with cancer. [ 116 ] Bob recalled going to the Cross Cancer Institute with his sister at the end of 1999 where it was made clear that she was terminally ill, would die, and should look after any unsettled business.

In January, he recalled Ford saying to him while they were alone in the basement of his parents ’ home that she was considering leaving her entire estate to him and his two brothers. He stated that he told her to just worry about keeping alive and they did not discuss the matter further. [ 117 ] Bob recalled that Ford told him in late January or early February that she wanted a lawyer. He recalled there was a problem between Nadia and Ric and that at some point Nadia would just look after Ford.

He stated that Nadia was taking good care of Ford and that he wanted to see an agreement worked out where both Ford and Nadia were happy. Ford wanted to talk to Lynass about comfort for her and Nadia with Nadia staying on. He knew that she also wanted to potentially talk about a Will and personal directive. [ 118 ] Bob denied ever having a conversation with Heather where he said “ that $500,000 is mine ” , stating that this accusation was preposterous and ridiculous. He stated further that he never discussed the contents of a Will with Ford or with Lynass or what was to go into a Will.

He stated that he did not know about the contents of the 1985 Will or the April and May Wills until after Ford died. [ 119 ] Bob confirmed that the Ward action was settled and stated that at one point there was almost a settlement with the Zahns implying that the failure to settle was because of actions of Heather. [ 120 ] Regarding the action by Heather against Bob and Ric, Bob stated that he was in business with his father and other family members got involved. He stated people were tampering with his parents ’ affairs.

He acknowledged on cross-examination that there were a number of differences between Wills prepared by David Tam, an Edmonton solicitor for his mother and father, and subsequent Wills prepared by Lynass which were discussed in the Graesser Judgment. [ 121 ] He also acknowledged that most of Ford ’ s estate came from the Zahns with the exception of her interest in Taubner Holdings which came from Henry Ford. [ 122 ] Bob made a number of allegations concerning Nadia which had not been put to her on cross-examination. These are discussed further in this judgment in the context of the rule in Browne v Dunn . Dr.

Eric Taubner [ 123 ] Ric is a psychiatrist at the Misericordia Hospital in Edmonton and has an office downtown. He has specialized in psychiatry since 1982. He confirmed that he hired Nadia because his mother and father were dementing and one caregiver was not enough. [ 124 ] He recalled that Ford lived in her parents ’ home after her separation from Otto Zahn. Ric stated that he loved his sister but at times got mad at her when he was not happy with what she was doing.

For example, he stated that sometimes she would be intoxicated in the kitchen yelling at her parents and accusing her father of killing Otto Zahn because of disputes over Alco. He admitted to one altercation where Ford, while drunk in the kitchen, threw a glass of wine at him and he spat at her and she spat back. He stated that no one could tell his sister anything as she was very strong willed. [ 125 ] Ric stated that initially he was impressed with Nadia but for a variety of reasons subsequently changed his view and became suspicious.

He was concerned that Nadia was going to take advantage of his sister. [ 126 ] Ric confirmed that he and Lynass had been friends since grade seven. Ric said he believed he initially called Lynass because

he thought Ford did not have a Will but noted in his discovery that he had told Lynass that she had one. He stated when testifying at the trial that he simply does not recall. He stated that he had no concerns about who Ford was leaving her estate to. [ 127 ] Ric stated that he never questioned his sister ’ s ability to do a Will and it never occurred to him that she was not competent. He recalled that the issue of her capacity was not raised until long after she was dead. [ 128 ] He acknowledged that Ford overdosed, was admitted to hospital and would have been incompetent for awhile.

He stated, however, that he never saw her delirious when visiting her at the Grey Nuns Hospital, and that she was competent unless sedated when at St Joseph ’ s Hospice. [ 129 ] Ric denied ever threatening to take Nadia away. However, he stated that he felt that Nadia was a predator with ulterior motives trying to gain a position of advantage. [ 130 ] He stated that he disagreed with Nadia who said that Ford had moments of incompetence several times a day prior to being admitted to the Grey Nuns Hospital.

He testified that some of his visits to his parents ’ home were for an hour or two hours. [ 131 ] With respect to the Graesser Judgment and the specific comments contained therein, he stated that he felt that Heather was making a run on his father ’ s estate. He stated that he did not feel his father needed a family trust, that he and Bob talked to his father, and that they felt David Tam was in his niece ’ s pocket.

He acknowledged the changes in the Will prepared by Lynass in which he was the sole executor, whereby his mother only got a life estate and Bob got $100,000. [ 132 ] Ric made a number of allegations concerning Nadia which had not been put to her on cross-examination. These are discussed further in this judgment in the context of the rule in Browne v Dunn . Dr. Arlin Pachet [ 133 ] Dr. Pachet, a clinical psychologist with a specialization in neuropsychology, gave expert opinion testimony on behalf of the Defendant with respect to testamentary capacity and undue influence.

He has extensive experience with respect to capacity evaluations. His curriculum vitae states that he has provided capacity assessment training and education to well over 1000 physicians, psychologists and allied health professionals in the Alberta Health Services. He reviewed a number of documents, including hospital records, the three Wills, the affidavit of Lynass and Dr. Hussain ’ s expert report. [ 134 ] Dr.

Pachet was familiar with the Banks v Goodfellow criteria and noted that a criterion not originally included in Banks but felt to be of importance is investigation of the potential for vulnerability toward undue influence. He stated that completion of a semi- structured clinical interview to assist in the determination of a patient ’ s decision making capacity is typically viewed as the gold standard when making a capacity determination.

He noted that the MMSE is a standardized mental status exam used to measure a person ’ s basic cognitive skills, such as short term memory, long term memory, orientation, writing and language. He stated that MMSE scores of 25-30 are considered normal, 21-24 reflect mild impairment, 10-20 reflect moderate impairment and scores less than 10 indicate severe impairment.

Patients with scores equal to or greater than 20 tend to be people who are involved in decision making in a collaborative or independent role, while scores below 20 reveal much less involvement of the patient in the decision making process. [ 135 ] Dr. Pachet stated that the the MMSE has been critiqued when used within the context of capacity evaluation, as it does not assess executive functioning or judgment.

Assessment tools that emphasize executive functioning, such as the Montreal Cognitive Assessment (MoCA)and the Frontal Assessment Battery, are often viewed as preferable whenever there is a question regarding decision making capacity. However, they were not used in the case of Ford, Dr. Pachet noting that the MoCA was first presented to the public in 2003. [ 136 ] Dr. Pachet relied on the affidavit of Lynass with respect to a telephone conversation that took place between Lynass and Ford on March 1, 2000, and a meeting between Lynass and Ford at the Taubner parents ’ home on March 4, 2000.

He noted that Ford was aware of the type of legal documents that she wanted, including a Will. Further, he noted that Ford mentioned the names of old school friends of Lynass and Ric during the meeting. Ford also recognized the extent of the disagreement between Ric and Nadia, and chose

Bob as her attorney in the enduring power of attorney. In Dr. Pachet ’ s opinion, this indicated the general strength of Ford ’ s cognitive abilities. [ 137 ] Dr. Pachet stated that from reviewing the hospital records and MMSE scores that there were clearly times when Ford was in a state of acute delirium. He stated that while a brief cognitive screen should not be employed as the sole tool in an assessment of capacity, the MMSE is useful as a determinant of the resolution and course of Ford ’ s delirium.

He looked carefully at the various MMSE scores and notes with respect to Ford ’ s degree of alertness in relation to Lynass ’ attendances or attempted attendances on her while she was hospitalized. He found nothing which would indicate that Ford was not alert or was in a state of severe or acute delirium prior to the two times Lynass met with her while she was hospitalized. [ 138 ] In particular, Dr.

Pachet noted that Ford was not only able to give Lynass instructions with respect to the disposition of her jewellery on April 4, 2000, but was also able to joke about Lynass ’ concern as to how he should word the disposition of the diamond watch to Randy ’ s future wife. [ 139 ] Dr. Pachet strongly disagreed with Dr. Hussain ’ s opinion which characterized Ford ’ s delirium as persistent and ongoing during the last months of her life.

He opined that while Ford suffered fluctuations in cognitive functioning secondary to isolated incidents of delirium, each incident of delirium resolved, there was no evidence of an underlying dementia or mental illness, and she was cognitively intact during her engagement with testamentary activities. He stated further that she was only at increased risk of undue influence during her periods of acute delirium, but did not engage in testamentary activities during those times and her wishes across meetings with Lynass were consistent and stable.

Shannon Sea Taubner [ 140 ] Sea testified that she graduated in law from Dalhousie University in 1999 and decided to travel to Central and South America for a year. She stated that she was close to her aunt whom she described as wonderful, kind and quirky. She testified that her aunt was always optimistic and upbeat. She further described her as bright and witty, and a person who liked to play jokes and pranks and create drama. She said Ford also had a dark or unhappy side when drinking.

She knew that Otto Zahn and her father Bob did not get along. [ 141 ] Sea stated that she was never introduced to Dennis or Randy, but knew that Ford had been in litigation with them, as she had been advised by Ford that this had hurt her tremendously and was upset with what had happened. [ 142 ] Sea stated that she kept in touch by telephone with her aunt after leaving on her travels in September of 1999, and subsequently learned that her aunt had cancer by an email from John Bradley whom she was dating.

She came home for Christmas initially planning to stay for only two weeks, but on realizing the state of her aunt ’ s health changed her plans and stayed for a month. She stated that she visited her aunt virtually every day during this period. [ 143 ] Sea stated that she never inquired whether or not Ford had a Will, but while in Chile she learned during a telephone call that a particular ring would be left to her.

She stated that she learned that her cousin Heather would be getting something, and knew that Ford was not pleased with Sea ’ s cousin Lara, who was constantly asking for money from the grandparents, the feeling being that Lara seemed to enjoy academia rather than getting out to work in the real world. John Bradley Jr. [ 144 ] John Bradley testified that he had known Ford since he was about three years old. His parents lived across the street from Ford and Otto Zahn in Calgary and saw them on approximately a weekly basis when Ford and Zahn were in town.

He stated that they spent many holidays together for dinners such as at Christmas, Easter and Thanksgiving. He said he called her “ aunt Kay ” and that on occasion she had made Hallowe ’ en costumes for him. [ 145 ] Bradley stated that he lost contact with Ford in about 1987 when he was in junior high school, when Ford and Otto Zahn moved to Nanoose Bay. However, he recalled a three day visit to Nanoose Bay with his parents when he was in high school, and going to the beach looking for sea shells with Ford. He recalled that the relationship soured during this visit, particularly with Otto Zahn, who

was an alcoholic, and that they did not have further contact until after he received a phone call from his father while at Queen ’ s University advising that Otto Zahn had committed suicide. He stated that he phoned Ford to offer his condolences. [ 146 ] Bradley stated that he learned in February or March of 1999 that he had been accepted to do his internal medicine residency at the University of Alberta, and phoned Ford to advise her of the fact that he would be coming to Edmonton.

He recalled coming to Edmonton on June 7, 1999 to find an apartment, and phoning Ford who asked him to stay an extra day in order to come over to her parents ’ home in Belgravia for supper and to meet the family. [ 147 ] Bradley testified that he met Ford ’ s parents, her brother Bob and his children Brook and Sea. He married Sea Taubner approximately two years later.

After supper he stated that the family went home, and that he went into the living room with Ford and talked with her for two to three hours about many topics, including her family situation and how things had changed over the years since he had last had contact with her. [ 148 ] Bradley stated that he commenced his residency on June 30, 1999, and from that point on had contact with Ford two to three times a week initially by himself and sometimes along with Sea later during the summer.

He stated that he had no aunts or uncles with whom he was close as they lived in Ontario, and he enjoyed Ford ’ s company as she was warm and welcoming. He gave her some general medical advice after she was diagnosed with terminal cancer and assisted in getting her CT scans which she took to Dana Farber Cancer Institute in Boston when obtaining a second opinion. [ 149 ] Bradley testified that he saw Ford with her brothers Bob and Ric the most. He recalled that she got along very well with Bob, they liked to joke around and he never witnessed any disagreements.

Ford described Ric as “ crazy ” and Rudy as the “ really crazy one of the bunch ” but always with a smile and without animosity. [ 150 ] With respect to nephews and nieces, she spoke mostly about Sea whom he was dating.

Bradley recalled that when Sea came home for Christmas from South America, Ford pleaded with Sea to stay longer than originally planned. [ 151 ] Bradley recalled that during their discussion, Ford mentioned Rudy ’ s family (Ingrid Ward and the girls) and expressed the opinion that they had received more than their fair share from her father Paul, and that she had put a stop to that when she moved back home. He recalled Ford speaking of Rudy ’ s daughter Lara whom she described as a professional student without any work ethic. Bradley specifically recalled her saying “ no worky worky no money money ” .

He stated that Ford never spoke of them again and never at any time mentioned her deceased sister Anita ’ s children, Heather and Craig. He recalled that Ingrid Ward might have seen Ford once during the remaining days of her life. [ 152 ] Bradley recalled speaking with Ford when he was younger and learning about the concept of a common law relationship, noting that she was not Kathe Zahn but Kathe Ford. He stated that she referred to the three Zahn boys not as her children, but as Otto ’ s kids.

Further, he recalled that when he had visited Ford with his parents at Nanoose Bay, Otto Zahn while drinking made disparaging remarks about a whole bunch of people, including his sons, but that Ford never told him to stop or settle down. [ 153 ] Bradley recalled that in the fall of 1999, after Ford was diagnosed with cancer, she told him that she had made a settlement with Otto Zahn ’ s sons after his death, that they were civil but she had moved on. He stated that he met Randy for the first time in the fall of 1999 when coming to visit Ford.

He stated that Ford was on the couch in basement, and that a person he did not recognize was holding her right hand and stroking it. He recalled this person saying: “ You must be John Bradley ’ s son ” (because of the family resemblance) and he introduced himself. Bradley stated that after Randy left Ford looked at him and said: “ Wasn ’ t that disgusting ” , questioning his display of affection and indicating, in Bradley ’ s opinion, that she was not overly impressed with Randy. [ 154 ] Bradley recalled that after being diagnosed with cancer, Ford asked him at one point if she should do a Will.

He stated that he told her that it was standard practice to get one ’ s affairs in order, but he testified that the discussion was only in general terms. He stated that there was no discussion about whether she had a previous Will or what she was considering with the exception of a specific jewellery bequest. [ 155 ] He stated that during his long discussion with Ford on June 8, 1999, she mentioned that she was leaving a ring to Sea. He recalled that sometime later in the fall of 1999, while he was visiting Ford in the basement, she pulled out a ring box, stating: “ This is the ring Sea will have ” .

[ 156 ] Bradley stated that he never observed anyone trying to influence Ford with respect to a Will and to his knowledge nobody did so. [ 157 ] He stated that Nadia at first seemed to be caring and kind, but that things changed over time. He testified that Nadia restricted who Ford could speak to on the phone or she would tell people not to come over. He acknowledged, however, that Nadia never restricted his visits. [ 158 ] Bradley stated that he became concerned when Ford advised him that she was helping Nadia out financially.

He regarded the relationship between Ford and her caregiver, Nadia, as unusual as Ford seemed to rely more on Nadia for her opinion than members of the family. He stated that he expressed his concerns or suspicions about financial abuse to a social worker when Ford was in the Grey Nuns Hospital.

He said he took the easy way out by just talking to the social worker and not to Ford about his concerns as he did not want to upset her. [ 159 ] Bradley stated that when he visited Ford at her parents ’ home or in the hospital, he was generally able to have coherent consistent conversations with her up to the last week of her life. He stated that he would talk to her for 15 minutes to an hour during each visit. On a few occasions she was delirious while hospitalized. He stated that as a medical doctor he understood delirium and could tell if she was confused.

He stated, however, that she would rally after two or three days and become oriented to people around her and to place and time. [ 160 ] Bradley made certain allegations concerning Nadia which had not been put to her on cross-examination. These are discussed further in this judgment in the context of the rule in Browne v Dunn . Positions of the Parties [ 161 ] The Plaintiffs say that this is a case about the lack of testamentary capacity of a vulnerable lady dying from terminal cancer, living in the basement of her parents ’ home, who was subject to decisions made by two of her three brothers.

It is also a case about the undue influence brought to bear by those two brothers, and others. They do not question the integrity of the lawyer Lynass who prepared the Will, but say that he fell short in his duties as solicitor in dealing with a person in need of protection and advice, and because of his past relationship with the two brothers was essentially duped into preparing Wills which contain glaring omissions. Further, the Plaintiffs submit that a prior civil judgment of Graesser J. should be given considerable weight, as there is significant overlap between the parties and witnesses.

Finally, the Plaintiffs say that an adverse inference should be drawn against the Defendant for failure to call the third brother, Rudy, who is one of the three beneficiaries of the residue. [ 162 ] The Defendant submits that Ford had testamentary capacity, and was not subjected to undue influence. The Defendant argues that this case was rife with hearsay and speculation that she might have done something different.

Further, the Defendant says that Lynass is, and was at the material time, an experienced and competent barrister and solicitor who ably fulfilled the responsibilities placed upon him to properly record Ford's wishes in her Will, which was executed in accordance with the requirements of the Wills Act , RSA 2000, c W-12 (now repealed). The Defendant notes the various occasions upon which Lynass obtained instructions from Ford, and that he verified that those instructions were coming independently and thoughtfully, there was clarity in her direction, and her wishes were properly recorded.

The Defendant submits that none of the evidence that was tendered after the testimony of Lynass has detracted in any significant way from the evidence which he gave, nor provides a basis for this Court to derogate from its primary obligation to ensure that the wishes of Ford be respected and enforced. Further, the Defendant submits that the concept that property will automatically devolve to the so-called natural heirs has long been abandoned, and people are permitted and encouraged to instruct lawyers so that their wishes, however silly, unexpected, unfair or even inappropriate, be enforced.

Finally, the Defendant submits that there is no basis for giving any weight to the prior decision of Graesser J. for policy reasons, that it is not similar fact evidence and that there would be significant reasoning prejudice in admitting such evidence. Preliminary Issues

The Rule in Browne v Dunn [163] The Defendant seeks to vilify Nadia. It was apparent that this would be the case when Lynass testified. Lynass did not haveany personal knowledge of Nadia’s integrity or ethics and only reported what he had been told by either Bob or Ric. Lynass stated, basedon his limited contact with her, that Nadia “didn’t seem like a bad sort” and that he knew she was close to Ford. He stated that even ifNadia was receiving money as Ric and Bob suggested, in his view it was a small price to pay to keep Ford happy.

As previouslymentioned, Lynass was a defence witness, but by agreement he was the first witness to testify at the trial. When Nadia testified as awitness for the Plaintiffs, it was anticipated that she would be subjected to a probing cross-examination with respect to her integrity andethics.

This was not the case. [164] The parties were specifically directed to provide written submissions on what is referred to as the Rule in Browne v Dunn(1893), 6 R 67 (HL). [165] The Plaintiffs cite R v Werkman, 2007 ABCA 130 at para 7, R v Lyttle, 2004 SCC 5 , [2004] 1 SCR 193 at para 64and Pawlett v Dominion Protection Services Ltd, 2008 ABCA 369 at para 21.

The Defendant cites R v Palmer, (SCC),[1980] 1 SCR 759 and R v McNeill (2000), (ON CA), 48 OR (3d) 212 (CA). [166] The rule in Browne v Dunn requires that a matter involving a witness personally be put to that witness if contradictory evidenceis later going to be presented by counsel or counsel is later going to impeach the witness' credibility (Browne at 70-71). [167] The rule is not absolute: the effect of a failure to cross-examine on a particular point goes to weight only, and the weight iswithin the discretion of the trier of fact (Palmer at paras. 36-37; McNeill at para. 491; Lyttle at para. 64; and Pawlett at para. 21). [168] The Plaintiffs submit that during the course of the trial, numerous statements were raised by the Defendant concerningNadia’s credibility that were neither raised nor put to Nadia by counsel for the Defendant during Nadia's or Heather's cross-examination: (

a) Bob stated that Nadia had demanded additional back pay for services she had provided earlier to Paul and Anna Taubner; (

b) Bob stated that Nadia claimed she had been presented with some other business opportunities and that she would need a higherwage to forego those other opportunities and stay and care for Ford; (

c) Bob claimed that Nadia was having her daughter come in Nadia's place; (

d) Bob claimed that Nadia was putting pressure on Bob, and demanded $2,500 for the down payment on a car; (

e) Bob stated that Nadia stopped showing up to St. Joseph’s, and Ford exclaimed that she knew it was too good to be true; (

f) Ric stated that Nadia made strange displays, such as rushing over to Paul Taubner within 60 seconds of meeting him, kneelingand kissing his hand; (

g) Ric stated that Nadia began making negative comments concerning Jennifer, the other caregiver in the house; (

h) Ric stated that Nadia demanded retroactive back pay dating back a few months;

(

i) Ric stated that Ford had paid for Nadia to have an abortion; (

j) Ric stated that Heather had told him that “you had better watch that one” in reference to Nadia; and (

k) John Bradley stated that following Nadia's departure from St. Joe’s, Ford had remarked that Nadia was not as she seemed and thatwhen the money was gone, apparently so was she. [169] Taken in isolation, failure to cross-examine on any one of the points above would not have a significant impact.

However, Iagree with the Plaintiffs’ submission that given the number of accusations made concerning Nadia's conduct and behaviour, theinflammatory nature of those comments, and the complete failure to put any of the accusations to Nadia (or any other Plaintiffs’ witness)to be explained, it is appropriate to apply the rule in Browne v Dunn and diminish the weight of the above evidence given by Bob, Ricand John Bradley, although more significantly with respect to Bob and Ric.

Hearsay [170] The Plaintiffs submit that pre- and post-testamentary declarations made by a testator demonstrating his state of mind may beadmitted as evidence of the contents of a will and for the impeachment of a will on the basis of fraud, duress, undue influence or a lack oftestamentary capacity, citing J. Sopinka, The Law of Evidence in Canada, 3d ed (Markham, Ont: LexisNexis, Canada, 2009) at 339.Further, an out of court statement that is offered simply as proof that the statement was made is not hearsay and is admissible: R vEvans, (SCC), [1993] 3 SCR 653 at para 16.

Similar Fact - Prior Proceedings [171] Admissibility of similar fact evidence hinges on whether the evidence is more probative than prejudicial.

The Plaintiffssubmit that application of the following factors outlined in R v Handy, 2002 SCC 56, [2002] 2 SCR 908 demonstrates a clear connectionbetween the conduct of Ric, Bob and Lynass in dealing with matters relating to both Paul Taubner’s and Ford’s affairs: 1) proximity in time: the acts occurred between 1996 and 2000; 2) extent to which acts are similar to the current conduct: upon being concerned with a relative’s testamentary affairs, Ric and Bobenlisted the assistance of Lynass to enact changes to testamentary documents (or the use of Power of Attorney designation to effect abeneficial share sale); 3) distinctive features: Ric provided Lynass with an assessment of capacity and both cases concerned a relative whose capacity hasbeen called into question; and 4) surrounding circumstances: the similarity of the surrounding circumstances, particularly the ongoing litigation relating to Alco,remained constant in both cases. [172] The weight to be given to a prior decision will depend on the identity of the participants, the similarity of the issues, thenature of the earlier proceedings, the opportunity given to the prejudiced party to contest it, and on the varying circumstance of theparticular case: British Columbia (Attorney General) v Malik, 2011 SCC 18 at para 48. [173] The Plaintiffs argue that there is a large overlap between the parties and witnesses in the two actions and similarity in issuesconcerning the conduct of those parties.

The Defendant is the only party who would be prejudiced by the admission, and he had a clearopportunity to address the issues before Graesser J. Further, given the highly complex nature of the shareholder dispute in that decisionand the volume of factual findings, it would be extremely expensive and inefficient to re-determine the factual foundation for Graesser

J. ’ s conclusions. [ 174 ] Generally speaking, the fact that a lawyer is mistaken with respect to the competence of one client does not undermine his or her view of other clients ’ capacity. I am mindful that there are factual links between that litigation and this lawsuit. However, I find that those links are not sufficient to support admissibility - for the purposes of this trial- of the statements in question in the Graesser Judgment. [ 175 ] Had I concluded otherwise, I would nevertheless attribute little to no weight to Graesser J. ’ s comments in the context of this trial.

I am not satisfied, nor is it apparent from the decision, that the issue was fully addressed in the course of that trial. I accept Lynass ’ testimony that he had never seen the video of Paul Taubner nor been examined on it. Further, having reviewed Graesser J. ’ s conclusions in the Graesser Judgment, it is my view that his negative comments regarding Lynass ’ assessment of Paul Taubner ’ s competence were not key to his determination of the matter.

Adverse Inference [ 176 ] The Plaintiffs submit that an adverse inference should be drawn against the Defendant for failing to call Rudy, who lives outside of the jurisdiction and is in the “ control ” of the Defendants. [ 177 ] The evidence was that Rudy was in Edmonton in February of 2000. The Plaintiffs state that Rudy was present during conversations with Heather or Randy concerning Ford ’ s estate. There was evidence that Randy was told by Rudy in February 2000 that Ford had told him that Randy and his brothers were getting most of the estate and that the Taubner brothers were getting the warehouses.

Some evidence suggests that Heather heard Rudy state words to the same effect. I note that Ford first told Lynass that her Will was out of date on March 1, 2000. Therefore, as at February 2000, Rudy would have been correct in stating that the Zahn brothers gained to benefit under Ford ’ s Will. It is not at all clear that Rudy ’ s recounting of any such discussions with Heather or Randy would be material to the issues to be decided by this Court. [ 178 ] Finally, the Plaintiffs point out that Rudy is a physician and observed Ford prior to her death.

The evidence establishes that Ford ’ s physical and mental state fluctuated in the last months of her life. Further, she was an alcoholic and was on strong medication throughout her illness. I conclude that Rudy ’ s observations of her in February 2000, while somewhat relevant, would not be material to the issues to be decided by this Court. There was no evidence with respect to whether there were subsequent visits by Rudy. Settlement of other Actions [ 179 ] Settlement of actions without incurring the time and expense of a trial is to be encouraged.

The fact that the Ward and Ford actions have settled is, in my view, irrelevant to these proceedings. Credibility of Witnesses [ 180 ] This trial took place over 12 years after Ford ’ s death and the events deposed to occurred during the last several months before her death. Lynass candidly testified that while he could specifically remember certain events, he was relying in large part on his affidavit. Suffice it to say, I have in these circumstances serious doubts about any of the witnesses having a perfect memory of events.

At best, I am of the view that after 12 years they for the most part have attempted to reconstruct in their minds what they believe to be true. These reconstructed memories were likely developed from transcripts or other documents prepared or seen prior to or during this rather protracted litigation, and any discussions that may have subsequently occurred.

Ric Taubner, for example, testified at trial that he did not believe his sister had a Will, but noted when reviewing his answers from discovery that he had said she did have one. [ 181 ] Generally speaking, I found all of the Plaintiffs ’ lay witnesses to be credible. Both Dennis and Randy gave their testimony in a clear and forthright manner. As

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