Kissendal v Kissendal, 2013 ABQB 736

Court of Queen ’ s Bench of Alberta Citation: Kissendal v Kissendal, 2013 ABQB 736 Date: 20131210 Docket: ES01 113512 Registry: Calgary Court File Number ES01 113512 Court Court of Queen’s Bench of Alberta (Surrogate Matter) Judicial District Calgary Estate Name Charles Augustus Kissendal Applicant Asher Charles Kissendal Respondents Charles Everton Kissendal, Evelyn Kissendal, Devon Easton Wilson _ ________________________________________ ______________ Reasons for Judgment of the Honourable Madam Justice K.M.

Eidsvik _________________________________________ ______________ [ 1 ] Charles Augustus Kissendal passed away on December 13, 2012. He was born in Jamaica but lived in Canada most of his life. He was 66 years old but still working 5 days a week at Clemrow Western Ltd. in general maintenance work. He lived on his own in a small house.

His estate is modest. [ 2 ] In his will, Charles Augustus Kissendal (“the Testator”) left his estate to his sister, Evelyn Kissendal, and his two nephews Charles Everton Kissendal (“Everton”) and Devon Easton Wilson in equal parts. [ 3 ] The testator had a son, Asher Charles Kissendal (“Asher”), 38 years old, but due to the divorce with Asher’s mother, and subsequently alcohol addiction issues, the testator’s relationship with him was an “on and off” one. It was estranged with him at the time that the will was prepared in 2009.

No provision was made for Asher in the will. [ 4 ] Prior to his death, the testator transferred an old house he owned in Jamaica, worth approximately $40,000, to his nephew

Devon Wilson. [5] Asher challenges the will on the basis that: 1. the will submitted for probate does not comply with the requirements of due execution, 2. there were suspicious circumstances that rebut the presumption that the testator had knowledge and consented to the content of thewill, and that the testator did not have testamentary capacity, and 3. the testator was unduly influenced by Everton [6] Asher also challenges the transfer of the Jamaica house on the basis of undue influence on the part of Devon. 1. Does the will comply with the requirements under the Wills Act RSA 1980, c. W-11 ? [7]

Section 5 of the Wills Act sets out that a will is not valid unless it is signed at the foot of the will by the testator, as it was inthis case; that the testator makes the signature in the presence of 2 or more attesting witnesses present at the same time, which he did;and that 2 or more of the attesting witnesses subscribe the will in the presence of the testator, which they did.

Accordingly, the will datedSeptember 29, 2009 and submitted for probate on March 13, 2013 is valid. [8] I base this conclusion on the evidence of the two witnesses to the will, John Brown and Armand Jakubiac, who both testifiedthat they were together with the testator when they all signed the will at their mutual work place coffee room. [9] There were some minor discrepancies in their testimony such as the time of day they were together (whether it was beforework or during a lunch break) and whether another person was also in the room or not.

Also they didn’t recall signing a second copy of awill although one recalled making copies of the will they signed. None of these discrepancies are relevant with respect to the validity ofthe will proposed for probate in my view. I accept the important parts of their testimony – the required facts necessary to prove a validexecution of a will as referred to above. Both witnesses were forthright and credible. The differences can be attributed to memoriesfading over time and are not important. [10] A lot was said about a second will that was found in the testator’s home after his death by Asher.

The provisions of this willwere identical except that the year inserted next to the testator’s signature was wrong – it stated 2007 instead of 2009 - and the signatureof the testator was made with a darker ink. Nobody could shed light on why this was so. In terms of the validity of the execution of thewill, this second copy is of no import in my view and is a red herring. The evidence was clear on all the necessary components of avalidly executed will and that is enough in my view to validate the will proposed to be probated.

This was the will, as I shall discussfurther later, that was sent to Everton in Montreal, as arranged, to hold as the executor of the testator’s estate. 2. Did the testator have knowledge and consent to the contents of the will and did he have testamentary capacity? [11] For the reasons I shall explain, based on the whole of the evidence, I am satisfied that the testator knew the contents of hiswill and had capacity to execute it at the time. [12] The Applicant, Asher, has several arguments about why I should not come to this conclusion.

Firstly, he suggests that thecircumstances surrounding the preparation of the will are inherently suspicious. Everton prepared the will by sourcing information onthe Internet. He then flew out to Calgary from Montreal where he lived and several days after he arrived, without instructions, Asherargues, Everton typed out the will and then left it to be signed along with a copy and an envelope addressed to himself. There was noindependent legal advice and nobody else involved in the preparation of the will.

Further, the contents of the will did not exactly matchhis assets and the fact that the RRSP already had a beneficiary named, a different friend, was not referenced.

All which should lead to aconclusion of suspicious circumstances surrounding the will which means that the propounder of the will, Everton, has the burden ofproving that the testator knew and approved of the will (Vout v Hay (SCC), [1995] 2 SCR 876 at para 26 – 28). [13] In my view, the circumstances surrounding the preparation of the will, although perhaps not typical, are not suspicious.Importantly, the evidence of an independent party and friend of the testator, Shaniel Skinner, supported Everton’s evidence and rebuttedany such suspicion.

She testified that she had spoken with the testator about preparing a will in 2008 on a few occasions because she hadrun into an estate problem herself. On these occasions, the testator told her that he wanted to divide his estate between his sister and histwo nephews and not leave anything to Asher, who he had had a falling out with at the time. [14] The testator’s sister, Evelyn was very close to him. They called each other frequently and he had visited her in Jamaica.

Hehelped her out financially regularly and so it is not surprising that he would want to leave his estate to her and her two children, hisnephews Everton and Devon. [15] Everton testified, and I accept, that he was called by the testator in January 2009 to prepare a will and that he did research onthe Internet to help him with this assigned task. He received instructions to divide the estate in the same way as Ms. Skinner was told. Heflew out to Calgary and after receiving instructions went to the library to type it out and print it.

The will was prepared and read over bythe testator before Everton returned to Montreal, and then it was not signed until several days later. The original was sent to Everton anda copy to Devon in Jamaica. Evelyn may also have received a copy – that was not clear. [16] The testator had never had a lawyer in Canada and was of limited financial means and in my view did not seek advice becausehis estate and will were fairly straightforward, so it is reasonable that he did not seek out independent legal advice.

The fact that the willdoes not exactly match his assets can be explained by the fact that a legally unsophisticated person, Everton, was using a precedent off ofthe Internet and likely did not tailor it as well as a lawyer would have. This does not make it suspicious in my view. Finally, the fact thatthe testator mailed a copy to Everton is not suspicious – indeed it shows diligence on the part of the testator especially since Everton wasthe executor.

[ 17 ] Secondly, Asher argues that his father did not have testamentary capacity in that he was not able to comprehend, of his own initiative and volition, the essential elements of will-making, property , objects, just claims to consider, revocation of existing dispositions, and the like. ( Vout ). Asher points to the testator’s issues with alcohol, and some issues with the execution of the will, such as putting in the date of 2007 on a second copy of the will, raises a suspicion that he didn’t recall what year it was when he executed the will. [ 18 ] There is evidence about the testator’s alcohol consumption.

Asher testified that alcoholism was the reason that the testator and his mother broke up in the eighties. Then, when Asher was 18 – 20 years old and started to have a relationship again with his father, he said that they spent so much time drinking that he decided to break off with him. The records from the testator’s hospital admission suggest that he may have had some issues with alcohol withdrawal in October 2012 but he denied alcohol abuse.

At his death in December 2012, the medical examiner stated that his blood alcohol reading was 1.9 g/l (compared to a .05 legal limit to drive) and that he died of “chronic alcoholism”. Asher had started to renew his relationship with his father and complained that at one family gathering the testator drank to excess. [ 19 ] On the other hand, other than one day that Armand Jakubiac could remember, the testator went to work 5 days a week and never showed any problems with alcohol.

His close friends all testified that they had never noticed that the testator had any problems with alcohol and disputed that his house had empty bottles of liquor around his house. [ 20 ] On the day that the will was signed the testator was at work and there was no concern of his being inebriated when he signed the will from either of his colleagues who knew him well.

Generally, he appeared to be very knowledgeable about his affairs – he did his banking, dealt with his property in Jamaica (more on this later), remortgaged his house a few months before his death and managed to go to work 5 days a week. [ 21 ] There is no medical evidence or any from his friends that he suffered from any level of dementia. There were hospital records about an episode shortly after a car accident in 2012 that he suffered from a psychiatric episode, but he was released a few days later back to normal.

In any event this is years after he executed his will and by all accounts he was instructing counsel on his personal injury lawsuit.

Indeed, Asher and his wife testified that they were looking for counsel for the testator to do a will – so presumably they thought that he had the capacity to sign one shortly before his death. [ 22 ] The different date on the copy of the will found in the testator’s house I find to be simply a typo – not the result of someone who didn’t know what year it was. [ 23 ] On the whole, I am of the view that the testator had capacity to sign his will in September 2009. [ 24 ] In sum on this point, I do not find that there were any “suspicious circumstances” that would put the onus on Everton to prove that the testator had knowledge of the contents of his will and had capacity – but even if the onus was on him, he has met it with the evidence that he led. 3.

Was the testator unduly influenced by Everton? [ 25 ] Asher argues that Everton unduly influenced the testator – even to the point of coercion and fraud – and relies on the fact that the testator was lonely and isolated, elderly, frail and vulnerable, and a chronic alcoholic. There were suspicious circumstances surrounding the preparation of the will. Everton helped the testator with financial and legal affairs, and that he the opportunity to manipulate the testator. [ 26 ] The question here is whether the testator’s volition was overborne so that he did not sign a will that expressed his intentions.

The evidence does not support such a conclusion – indeed the evidence supports that the will expressed exactly what he wanted – that is to divide his estate in three between his sister and her two sons, and that despite his friend’s arguments to include his son, he expressly chose not to at that time. [ 27 ] More specifically, I do not find that the testator was “isolated” and “lonely”. Both of the witnesses to the will testified about being friends with the testator – indeed, John Brown often drove him to and from work. Ms.

Skinner testified that both she and her husband were long-time friends and that she was aware of another fellow, Tenya Edwards, “Eddie”, who was also a close friend. Roberta Campbell was also a good friend. He regularly communicated by phone with his sister in Jamaica and his two nephews. Closer to his death he also started to have a relationship again with his son and his family. Although the testator enjoyed spending time on his own, he was far from a shut in. There is a difference between spending time alone and being lonely.

On the facts here the evidence doesn’t support such a finding. [ 28 ] I do not accept the evidence of Asher to the effect that his father was isolated and had no friends. He was not involved in his father’s life in the 2009 period and therefore had limited knowledge of his father’s life at that point.

Further, I was surprised that he would testify to this in light of all of the evidence to the contrary from the testator’s friends which he heard while sitting in the courtroom which I thought might have enlightened him on this point. [ 29 ] I do not consider the testator “elderly” at 66 years old, nor would I consider him “frail and vulnerable”.

The testator was not dependant on anyone, let alone the beneficiaries, for day to day emotional or physical needs. [ 30 ] He may have been an alcoholic based on the evidence discussed above, yet he managed it fairly well since his close friends did not observe serious problems and he managed to keep a full time job. Further, to the extent that he did get inebriated it appears that he would become ornery and argumentative, not someone all of a sudden capable of being manipulated.

Indeed the evidence suggests that he could not be convinced to change his mind when he had made it up. [ 31 ] Finally, although Everton may have helped him with some financial matters when he was in town, he certainly didn’t have control of them in any shape of form as the testator did this himself.

[ 32 ] In sum, I am of the view that the will expressed the testator’s wishes in September 2009 and that he was not unduly influenced by Everton with respect to its preparation. 4. Should the Jamaican house transfer be set aside? [ 33 ] On February 25, 2012 the testator transferred a small house that he owned to his nephew Devon, who at the time lived in Jamaica (and has since moved to B.C.). Prior to trial not a lot was known about this house because Devon was not questioned and Everton knew little about it.

Some papers were found in the testator’s house after his death and a file was sent from the Jamaican solicitor who dealt with this, a Mr. Clive Monroe. [ 34 ] Accordingly, initially, the claim about this house and undue influence for the most part was a series of unanswered questions which they alleged should be answered in the negative, or as showing suspicious circumstances.

For example, it was assumed by Asher that no independent legal advice was given to the testator, that the various Powers of Attorney were concocted somehow, and that the transfer occurred when the testator had health issues etc. [ 35 ] Asher argues that Devon was in a fiduciary relationship because of the Power of Attorney from 2003 or 2004 and as such there is a presumption that there was undue influence that must be rebutted by the gift receiver, here Devon, to show that the testator gave the gift only after a full free and informed thought about it and was not being victimised.

Asher relies on the case Streisfield v Goodman (2001) 40 ETR (2 nd ) 98 (Ont. SC) . [ 36 ] Devon gave evidence at trial and in my view was credible and reliable. I accept his version of what happened, which is supported by the documentation entered as evidence, and do not find that there was undue influence exercised in order for this gift to have been made. [ 37 ] The evidence, briefly, was that when Devon went to university he wanted to rent this small house. It had been rented and managed for some time by the testator’s brother, Albert. This didn’t work out at the time.

Subsequently, there were some issues with a tenant which led to court proceedings to have him evicted. Devon paid for these costs. [ 38 ] Subsequently, the testator found out that there were issues with the amount of rent that was being collected and redistributed by Albert and there was a falling out between them. This led to the testator to revoking the Power of Attorney that Albert had, and installing Devon as his new Power of Attorney.

A Power of Attorney was initially signed by the testator in 2009 but in order for it to be registered the testator had to have it signed in Jamaica and witnessed by a Notary who knew him. The testator travelled to Jamaica in 2010 to have this done and this signed Power of Attorney was entered into evidence. [ 39 ] The house had become run down so Devon managed, and paid for about $5000 worth of repairs.

Subsequently he collected rent and it was not clear how that was managed but he was being paid back for the repairs through the rent to some degree. [ 40 ] There were discussions of transferring the house outright to Devon and a letter was prepared by him and sent to the testator. The testator signed it and sent it back. It was witnessed by a doctor in Calgary. Subsequently the solicitor took care of the documentation for the transfer. Devon said that the testator communicated directly with the solicitor and received advice from him.

The transfer was ultimately signed in February 2012 by the testator but not by Devon until June 2012. [ 41 ] Others did not know about these dealings but this is not surprising since it appears that the testator was private about many things in his life – including his prostate cancer and car accident. His friends and relatives were never kept apprised of everything – just bits and pieces – and sometimes after the event. [ 42 ] It seems reasonable that the testator would transfer this house to Devon. He was living in Jamaica at the time and had helped with maintaining it and managing it.

Devon was a beneficiary under the estate. The testator didn’t really need it anymore and was devolving his estate. [ 43 ] I do not draw an adverse inference about Evelyn not being called. She is in her 70s, does not speak English very well, and travel, or even video attendance, would have been difficult. [ 44 ] I accept that the testator could not be made to do anything he did not want to do. This was expressed by Devon and others. [ 45 ] I accept that Devon has rebutted the presumption that there was undue influence in the transfer of this house and accordingly I am not prepared to invalidate it.

Conclusion [ 46 ] In conclusion, I order that the will filed March 13, 2013 be admitted for Probate and that Asher deliver any documents or personal property of the testator that he had not already produced to the executor, Everton. [ 47 ] With respect to costs, Asher will pay the Estate costs of this application based on

Schedule C column 2 of the Rules of Court . Asher will bear his own costs and they will not be paid by this Estate that is of limited means. I am not awarding the Estate solicitor and client costs because of the initial misuse of the testator’s credit cards, which Everton has agreed (and it has been already ordered), will have to be accounted for. This raised unnecessary suspicions which did not help in the circumstances. Heard on the 4 th , 5th and 8 th days of November , 2013. Dated at the City of Calgary, Alberta this 10 th day of December, 2013.

K.M. Eidsvik J.C.Q.B.A. Appearances: Jennifer Lamb and Chidinma Thompson for the Applicant Gisele R. Bruce for the Respondent