Popowich Estate, 2012 ABQB 665

Court of Queen ’ s Bench of Alberta Citation: Popowich Estate, 2012 ABQB 665 Date: 20121031 Docket: ES03 132913 Registry: Edmonton Court File Number ES03 132913 Court Court of Queen’s Bench of Alberta (Surrogate Matter) Judicial District Edmonton Estate Name Sheri Lynn Popowich Applicant Patricia Popowich also known as Patricia Dianne Popowich Respondents Giovanni Capasso and Stephanie Knaak- Newman _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] Sheri Popowich died a few weeks after having arranged to have the proceeds of the sale of a house she owned, totalling approximately $285,000.00, deposited into a bank account that she held jointly with her mother. Sheri Popowich was the only person who deposited money into that account. Approximately six months before she died, Sheri Popowich had made a formal will in which she had given roughly half of her estate to her husband, Giovanni Capasso, and roughly half of her estate to her mother.

On or about the day of her death, Sheri Popowich handwrote a long letter to her mother in which she said, among other things, "Take my money and do things for yourself". [ 2 ] In this application for advice and directions, the parties ask whether the letter written by Sheri Popowich was testamentary with the result that it superceded her formal will and also whether Sheri ’ s mother, Patricia Popowich has rebutted the presumption of resulting trust created when Sheri Popowich deposited funds in a joint bank account with her mother. [ 3 ] In the circumstances here, Sheri Popowich's handwritten letter, although meeting all technical requirements for a holograph

[3] In the circumstances here, Sheri Popowich's handwritten letter, although meeting all technical requirements for a holographwill and although she herself had testamentary capacity when she wrote the letter, was not testamentary in nature.

Sheri Popowich'sformal will therefore continues to be the governing testamentary document. [4] Sheri Popowich's mother, as the transferee of her daughter's funds, has not met the burden of rebutting the presumption ofresulting trust which arises here. [5] In the result, the money in Sheri Popowich’s joint bank accounts becomes an asset in the deceased’s estate, which estatewill be distributed according to the deceased’s will. Cases and authority cited [6] By Patricia Popowich: Surrogate Rules of Court; Wills Act, R.S.A. 2000 c.

W-12, ss.7 and 8; Lindblom (Estate) v.Worthington, [1999] ABQB 796; Estate Administration Act of British Columbia; Wills Act of British Columbia; Serdahely (Estate of),2005 ABQB 214; Adult Guardianship and Trusteeship, s. 85; Pecore v. Pecore, 2007 SCC 17 , [2007] 1 S.C.R. 795. [7] By Giovanni Capasso: Wills Act, R.S.A. 2000, c. W-12; Lindblom v. Worthington, [1999] A.J. No. 1214; Bennett v.Toronto General Trusts Corp., (SCC), [1958] S.C.R. 392 (SCC); Forest, RE, (SK CA), [1981] 7Sask R. 67; Black Law Dictionary, 8th edition "Precatory"; Arkley v. Nestoruk, 14 E.T.R. (2d) 93; Vout v.

Hay, (SCC),[1995] 2 S.C.R. 876; Zahn v. Taubner, 2012 ABQB 504; Weidenberger, [2002] ABQB 861; Stewart v. McLean, [2003] ABQB 96;Pecore v. Pecore, [2007] S.C.C. 17. [8] By the Personal Representative: Surrogate Rules, Alberta Regulation 130/95; Wills Act, R.S.A. 2000, c. W-12; Marondav. Colliton, 2010 CarswellAlta 1008; Bennett v. Toronto General Trusts Corp., (SCC), [1958] S.C.R. 392; Stiles Estatev. Stiles, ("Stiles") 2003 ABQB 317 , 2003 CarswellAlta 698; Banks v. Goodfellow (1870), L.R. 5 Q. B. 549 [1861-73] AllE.R.

Rep. 47; Weidenberger Estate, Re, 2002 CarswellAlta 1157; Serdahely (Estate of), 2005 ABQB 214; Pommerehnke Estate, Re,1979 CarswellAlta 187; Welgan Estate, Re, 2004 CarswellAlta 1711; Pecore v. Pecore, 2007 SCC 17 , [2007], 1 S.C.R. 795("Pecore"); Riley Estate v. Chase, 1991 CarswellNB 245; Bates v. Oryschuk, 2009 CarswellAlta 1923. 1. Background [9] Sheri Popowich, the only child of Patricia Popowich, was an intelligent and well liked 39 year old woman who had beendiagnosed with a bipolar disorder in her adult life. Sheri met her future husband, Giovanni Capasso, while the latter was working inCanada.

They began dating in 2001; in 2004, they were both in a serious motor vehicle accident in British Columbia. Sheri and Mr.Capasso lived together in Edmonton and in various other places including South Africa and British Columbia. In December 2007, Sherimoved to Italy and married Mr. Capasso in Milan in January, 2008. In January 2009, Sheri returned to Canada where she expected toreceive medical treatment for her depression; indeed, she was hospitalized a number of times between her return in 2009 and her death inJuly 2010.

It is also likely that Sheri returned to Canada to finalize the settlement of her motor vehicle accident claim; in March, 2009,she received $300,000.00 as a settlement of that claim. Sheri’s husband visited her on four occasions between January 2009 and July2010. In May, 2009, Sheri purchased a home on Gabriola Island in British Columbia with most of the proceeds of the settlement. OnDecember 17, 2009, Sheri executed a formal will in which she gave 5% of her estate to her personal representative, the respondentStephanie Knaak, and divided the remainder of her estate equally between her mother and her husband.

In January, 2010, Sheri decidedthe return to Italy. On February 1, 2010, she gave her mother a power of attorney. At about the same time, it is claimed that Sheri addedher mother as a joint holder of her chequing and savings bank accounts, although no banking document has been provided thatconclusively proves that such joint accounts were in fact created. Sheri then listed her house for sale. In March, 2010, Sheri moved backto Edmonton to live with her mother. She then booked a one way flight to Italy for April 27, 2010.

However, shortly before theanticipated departure date, she cancelled her ticket; this cancellation appears to have been connected with her deteriorating mental healthat that time. Mr. Capasso came to Canada to visit Sheri on May 27, 2010 and stayed for approximately two weeks. On June 24, 2010,Sheri gave instructions to her B.C. lawyer to deposit the proceeds of the sale of the house into her bank account. The sale of the houseclosed on June 29, 2010. In the reporting letter of June 29, 2010, Sheri’s BC lawyer adds: “As directed by Patricia Popowich, I alsoenclose the original Power of Attorney”.

Sheri went missing on July 3, 2010. Her body was found on July 5, 2010; a lengthyhandwritten note was found along with her body. The police concluded that Sheri committed suicide on or about July 5, 2010. Due tosome technical problem relating to identifying the correct bank account, the funds from the sale of the house were only forwarded fromthe BC law office to Sheri’s bank account on July 9, 2010.

[ 10 ] The suicide note is handwritten, and is 9 pages long. In it, Sheri repeats over and over that her mother has done everything possible for her and that there is nothing for which her mother should blame herself. Sheri indicates that it is the illness which causes her fear and anxiety and sadness; she writes of being “ stuck in a circle of pain ” . She indicates that she “ loves Giovanni so much ” , but that she recognizes that she can ’ t be the wife he needs and asks her mother to tell him that Sheri wants him to find another person to make him happy.

Sheri refers a little to her father and to the relationship between her mother and her father. Over the course of the 9 pages, Sheri also says the following: Take my money and do things for yourself . . . . Even selling the house, money, nothing can bring me any feeling of peace . . . Thank you for dealing with the house - but the sale of the house doesn ’ t make any difference . . . 2.

Is the suicide note a holographic will? [ 11 ] In coming to the conclusion that the suicide note is not a holographic will, I begin by stating that I am satisfied that all of the technical requirements for making a will in the suicide note are present.

In coming to that conclusion, I have satisfied myself, first, that when Sheri wrote the suicide note, she had testamentary capacity, ie. she understood who were the natural objects of her bounty (her repeated references to the love and care her mother lavished on her and the 9 passages in which she refers lovingly to her husband) and what her property was (the two references to the proceeds from the sale of the house). [ 12 ] There is no doubt that Sheri was deeply troubled, even overwhelmed, when she wrote the note.

However, the case law establishes that the focus of the court on an issue of testamentary capacity is to determine whether, at the moment a person purports to make a testamentary disposition, the person knew who were the natural objects of their bounty and what their property was. A person who is insane may have flashes of lucidity sufficient to allow for testamentary capacity. Alberta ’ s Adult Guardianship and Trusteeship Act recognizes this aspect of the common law regarding testamentary capacity: s. 85(1).

When she wrote her suicide note, Sheri was in tremendous pain but she had the capacity to make a testamentary disposition had she intended to do so. [ 13 ] I am also satisfied that the suicide note was entirely in Sheri ’ s own handwriting and signed by her and that it was written shortly before her death. [ 14 ] Despite my acceptance that the requirements for the making of a holographic will were all present, I have concluded that the suicide note is not, in its nature, a testamentary document, that is a document which “ reflects a deliberate or fixed and final expression of intention to dispose of property on death ” : Lindblom (Estate) .

In that note, Sheri gave no indication of an actual or even implied revocation of her formal will. She was only trying to explain her frame of mind to her mother, knowing how troubled her mother would be by her suicide; over and over, she indicates to her mother that her mother should not feel that the suicide is the mother ’ s fault, as of course, it isn ’ t. Sheri tries to explain the devastating effect that her illness has on her and why she feels that she needs to escape from a painful life.

The frequent loving references to her husband rebut any argument that, in the suicide note, Sheri was attempting to take away from her husband the interest which she had given to him six months earlier in her formal will.

In that note, the only gift that Sheri was giving to her mother was the gift of trying to provide comfort in an excruciatingly painful situation. [ 15 ] In the overall context of the note, when she tells her mother that her mother should take her money and spend it on herself, she is only telling her mother that her mother should not feel badly about spending the money on herself, rather, for example, than sharing it with Sheri ’ s Dad, or than spending it on some charity or educational program for suicidal adults.

In legal language, these words are “ precatory ” , that is they represent a wish that Sheri expresses about what her mother should do with her legacy from her daughter. Sheri doesn ’ t tell her mother to take all her money, period; rather, the emphasis is on her wish that her mother would do things for herself with the money. A plausible paraphrase of the comment about taking the money is, “ Do things for yourself with the money I left you ” .

It is clear from the suicide note that Sheri continues to love her husband; there is no indication whatever in her note that she wishes to change her will or to somehow punish her husband or even to reflect that her mother took care of her in her last months of life. [ 16 ] In

summary, the suicide note is not a testamentary document and does not supercede Sheri ’ s formal will. Sheri ’ s formal will is admitted to probate. Stephanie Knaak-Newman is confirmed as the personal representative of Sheri ’ s estate. 3. Has Patricia Popowich rebutted the presumption of resulting trust? [ 17 ] In coming to the conclusion that Patricia Popowich has not rebutted the presumption of resulting trust, which the Supreme

Court of Canada reminded us in Pecore is the situation where a child transfers money to a parent, I have taken the following into account: - for the purposes of this decision, I have assumed that Sheri actually created joint chequing and savings accounts with her mother, despite the fact that no banking document reflects such a status.

It was clearly Sheri ’ s intention that her mother should be empowered to deal with the monies in her accounts; - Patricia Popowich herself has, honestly, acknowledged that the reasons for Sheri ’ s appointment of her as her attorney and as a joint holder of her bank accounts, is to facilitate Sheri ’ s sale of the house in circumstances where Sheri expected to return to Italy and to facilitate the management of Sheri ’ s assets once she returned to Italy.

From the time that Sheri decided that she could not, or would not, return to Italy at the end of April 2010, there was not much time until the day on which she committed suicide in July, 2010. It is at least as likely that Sheri was intending to leave the money here in Canada and to have her mother act as her attorney to make payments from that account for items such as medication, perhaps the cost of a return trip to Canada, etc. as it is that Sheri intended to make a present of that money to her mother.

At the best, in other words, Sheri ’ s intentions were equivocal; that means that the mother has not, on a balance of probabilities, established that Sheri intended to make her a gift of the totality of the proceeds of her bank account; - Patricia Popowich alleges that it was reasonable, in all the circumstances, for Sheri to take away from her husband the legacy which she had formally given to him because Sheri felt that her husband had not provided adequate support during her serious illness.

With respect, because Sheri cannot speak for herself at these proceedings, the only evidence about Sheri ’ s feelings relative to her husband which the court can take into account is what Sheri herself wrote in her suicide note; nothing in that note suggests that Sheri in any way blames her husband or considers that he didn ’ t adequately support her. [ 18 ] In the result, the joint bank accounts are held in trust by Patricia Popowich for the estate of Sheri Popowich. 4. Costs [ 19 ] If the parties are not agreed on costs, I may be spoken to within 30 days of the release of this decision.

Heard on the 26 th day of October, 2012. Dated at the City of Edmonton, Alberta this 30 th day of October, 2012. J.B. Veit J.C.Q.B.A. Appearances: John Stadnyk, Stadnyk Law for Patricia Popowich

Michael Klaray, Duncan & Craig LLP for Giovanni Capasso Harvey Hait, Cleall for Stephanie Knaak-Newman