Murrell Estate (Re), 2013 ABQB 758

Court of Queen ’ s Bench of Alberta Citation: Murrell Estate (Re), 2013 ABQB 758 Date: 20131224 Docket: ES03 137094 Registry: Edmonton Court File Number ES03 137094 Court Court of Queen’s Bench of Alberta (Surrogate Matter) Judicial District Edmonton Estate Name Irene Murrell Applicant (Plaintiff) James Murrell Respondent (Defendant) Donna Brown, Barb Mellersh, Ron Polack _ ________________________________________ ______________ Memorandum of Decision of the Honourable Mr. Justice B.R.

Burrows _________________________________________ ______________ [ 1 ] James Murrell has applied for a Grant of Administration with Will Annexed in the estate of his late wife, Irene Vivian Murrell. The application is opposed by the adult children of the deceased, Donna Brown, Barb Mellersh and Ron Polack, who seek an order requiring formal proof of the Will at a trial. There is also a dispute as to the construction of the Will. The children claim that even if the Will is valid, the deceased died intestate as to the principal asset of the estate.

If either of the positions advanced by the Respondents prevails, James Murrell seeks relief under the Dependant’s Relief Act . [ 2 ] Irene and James Murrell were married for 25 years. Prior to their marriage they were in a common law relationship for 2 years. They lived together for the entire 27 years mainly in rural Alberta.

In July, 2011 they moved to Edmonton where they resided until Irene Murrell was admitted to hospital where she passed away on October 16, 2011. [ 3 ] The Respondents are Irene Murrell’s children by a relationship which preceded her marriage to James Murrell. [ 4 ] Irene Murrell died on October 16, 2011. The Will for which a grant is sought is dated June 4, 2011. It is in the handwriting of Laurie Murrell, James Murrell’s daughter, and purports to be signed by Irene Murrell and by Laurie Murrell and Kelly Graham as witnesses.

It reads as follows: This is the last will of Irene Vivian Murrell, born on December 09, 1937. I leave all my personal belongings, monies in my bank account

and monies coming from the oil royalties to my husband of 27 years, James Murrell. I write and sign this will today, Saturday, June 04, 2011, at 304 Birch Crescent, Sherwood Park, Alberta. Irene Murrell “Irene Murrell” Witnessed by Laurie Murrell June 04, 2011 “Laurie Murrell” 903 Hawthorne St., Sh. Pk. Alta. Witnessed by Kelly Graham June 04, 2011 “Kelly Graham” Box 320 Caroline Alta. [ 5 ] The inventory of property and debts in the application for administration indicates a net value of the estate of $104,343.00. The principal asset is an interest in the mineral rights in two quarter sections of land.

The inventory states the value of that interest to be $97,453.00. [ 6 ] The mineral interest is in fact a 9.09% interest in the mines and minerals in the 2 quarter sections. The title to the mines and minerals is held by a trustee. There are 11 equal shares, each beneficially owned by one or more persons. There is a formal Trust Agreement pursuant to which the trustee administers the mineral interest. I understand that the mineral interest has been leased and that the lessee is producing oil from the property. Royalty payments are made from time to time to the owners of the shares in the mineral interest.

The amount and regularity of the royalty payments is not clear from the evidence on this application though it appears that in one month Ms. Murrell received $8700. I understand that the Respondents take the position that the value of the estate’s interest in the mineral title is substantially more than the value stated in the application for administration. [ 7 ] The Affidavit of Witness to a Will included in the application for administration was sworn by Laurie Murrell.

She swears: The hand-printed portion of the Will is in my handwriting as I was requested by the testator to write out her Will as she dictated it to me and discussed the contents with me. I wrote down the testator’s wishes as she expressed them to me at that time. The testator told me that, “Everything should go to Papa”. By that I understood that it was her intention that her estate should go directly to her husband, James Murrell. The Testator read through the Will and confirmed with me that she understood the terms of the Will and that they were consistent with her wishes.

After the testator confirmed that her wishes were expressed, the testator signed the Will in the presence of myself and Kelly Graham on June 4, 2011. [ 8 ] Laurie Murrell was cross-examined for the purposes of this application. She testified as to the circumstances surrounding the preparation and execution of the Will. [ 9 ] On June 4, 2011 James and Irene Murrell were staying at the residence of Linda Murrell, another daughter of James Murrell in Sherwood Park, Alberta. Irene Murrell was receiving cancer treatment in Edmonton.

On the morning of June 4, 2011, Irene Murrell telephoned Laurie Murrell, who also lived in Sherwood Park, and asked her to come to Linda Murrell’s house. When Laurie Murrell arrived at Linda Murrell’s house, Irene Murrell asked her to help her prepare a Will. Only Laurie and Irene Murrell were present. Laurie Murrell was not aware of any impediment which prevented Irene Murrell from writing out the Will herself. Laurie Murrell wrote out the Will. [ 10 ] The second witness to the Will, Kelly Graham, was also questioned. He testified that he called at Linda Murrell’s residence around noon to pick up Laurie Murrell.

He was asked to witness the execution of Irene Murrell’s Will. He did not know either James or Irene Murrell before this. The Will had been written out before he arrived. There was no discussion of the content of the Will in his presence. Irene Murrell, Laurie Murrell and Kelly Graham were present together when Irene Murrell executed the Will and Laurie Murrell and Kelly Graham signed as witnesses. [ 11 ] James Murrell testified in cross-examination that he was not present when the Will was prepared or when it was executed. He was in Edmonton having a repair done to his car.

He arrived back at Linda Murrell’s house at about 4:30. Irene Murrell was there alone. She showed him the Will. [ 12 ] As previously mentioned, Irene Murrell died on October 16, 2011. The day following her death, James Murrell, Laurie Murrell, the Respondents, Donna Brown, Barbara Mellersh, and Ronald Polack and their respective spouses (or in Ronald Polack’s case, his girlfriend) met with the funeral director. Donna Brown deposed as follows concerning this meeting: There was discussion about the fact that my mother did not have a will: on the contrary, Mr.

Murrell said, in front of everyone, that it didn’t matter that she didn’t have a will because he “could do one later.” Laurie laughed and said, “Dad you can’t do that”. After the meeting she apologized to us and said that “Dad is just confused, he doesn’t know what he’s talking about.” [ 13 ] Both Barbara Mellersh and Ronald Polack deposed to the same effect in their affidavits. So did Rob Brown, Donna Brown’s husband, Gerry Mellersh, Barbara Mellersh’s husband, and Lori Marica, Ron Polack’s girlfriend.

[14] Laurie Murrell testified in cross-examination that she was not present at the funeral home when there was a discussion. [15] James Murrell testified that there had been discussion of a Will at the funeral home though he could not remember who waspresent. During the discussions he said, he testified, that there was a Will. At the time, however, he did not produce it because he did notknow where it was. In fact prior to Irene Murrell’s death he had told her that he could not find the Will and she could not rememberwhere she put it.

A short time prior to Irene Murrell’s death, arrangements were made for a lawyer to attend on her for the execution ofan Enduring Power of Attorney, but even though it appeared that the June 2011 Will had been lost, no new Will was suggested orprepared. [16] After Irene Murrell’s death, James Murrell was able to obtain from Irene Murrell’s bank, a draft for the whole balance of heraccount. He also was able to obtain from the trustee of the mineral rights trust, a transfer of Irene Murrell’s interest into his own name.

It is not clear how either of these transactions were accomplished without probate or even presentation of a copy of the Will. [17] On November 10, 2011, Donna Brown’s lawyer wrote to James Murrell. He observed that as Irene Murrell had died intestateand as the power of attorney she signed a short time before her death ceased to have effect on her death, James Murrell had no authorityto obtain the money from the bank or the transfer of the mineral trust interest.

He was not entitled to receive the oil royalties. [18] On January 11, 2012, James Murrell telephoned the lawyer and advised that Irene Murrell had made a Will in June 2011 andthat she left her entire estate to James. [19] The affidavits and cross-examination transcripts of all the parties pay significant attention to the relationship between IreneMurrell and her children, the Respondents, in the years prior to and days preceding her death. James Murrell deposed that contact wasinfrequent and that each of her children had visited her only once in hospital prior to Irene Murrell’s death.

Each of the Respondent’sdisputed the accuracy of this evidence. Each deposed that they had considerably more contact with their mother before her illness andthat they visited her many times in hospital. James Murrell was often present when they visited in hospital. All three were present whenshe died. The stark difference between the evidence of James Murrell and the evidence of the Respondents and their partners, combinedwith the internal inconsistencies in the testimony of Mr. Murrell when he was cross-examined on this point gives rise to a concern as tothe reliability of Mr.

Murrell as a witness generally. [20] The Respondents have obtained an expert forensic handwriting analysis from Leslie L. Peace, Forensic Document Examiner. Mr. Peace compared the signature “Irene Murrell” on the Will dated June 4, 2011, to the signature “Irene Murrell” on 6 other documentsdated between August 3, 2004 and November 1, 2010. Three of the specimen signatures are on documents from 2010. Mr.

Peace stateshis conclusion as follows: The questioned “Irene Murrell” signature on Exhibit A [the Will] was probably not written by the person who produced the specimensignatures on Exhibits B, C, D and E [the 6 specimen signatures] purportedly Irene Murrell. [21] An appendix to Mr. Peace’s report identifies the range of conclusions which are possible in such a forensic examination. There are three levels of certainty used when the disputed signature matches the specimen, one statement used when the examination isinconclusive, and three levels of certainty when the disputed signature does not match the specimen.

The words used by Mr. Peace inthis examination -- “probably not written” -- are the first level of certainty for a non-match. There are two stronger levels of conclusion– “strong probability” and “signature not written by the author of the specimens”. [22] James Murrell seeks a

summary determination of his application for a Grant of Administration with Will Annexed. TheRespondents take the position that the circumstances surrounding the preparation and execution of the Will, the meeting at the funeralhome, the late revelation of the existence of a Will, and several other matters are properly characterized as “suspicious” and

summarydetermination of Mr. Murrell’s application should therefore be refused and a trial of the issue of the validity of the Will should beordered. [23] The question therefore is whether the Respondents have presented sufficient evidentiary foundation to support theircontention that there is a genuine issue for trial (Quaintance v. Quaintance (Estate), 2006 ABCA 47).

Does the evidence support theconclusion that suspicious circumstances sufficient to displace the presumption that a Will appearing on its face to be valid and sworn byits witnesses to have been regularly executed, is valid and to require the applicant to prove the validity of the Will formally? Have theRespondents pointed “ . . . to some evidence, which, if accepted, would tend to negative knowledge and approval or testamentarycapacity.” (Vout v. Hay, (SCC), [1995] 2 S.C.R. 876). [24] In my view the Respondents have met this burden. The circumstances are, in my view, suspicious.

The evidence creates adoubt as to whether the Will which is said to have been signed by Irene Murrell was in fact signed by her.

It is appropriate that the issueof whether or not the Will is genuine be determined at a trial where all concerned testify before a judge who can assess and determinethe significant questions of credibility and reliability which clearly arise on the conflicting affidavits in this application. [25] The particular features of the circumstances which in my view are correctly characterized as suspicious include: - That according to the evidence of Laurie Murrell, Irene Murrell asked Laurie Murrell to write out her Will in Laurie Murrell’shandwriting when there was no reason she could not write it out herself. - That, according to the evidence of her children, having written a Will only a few months earlier, Irene Murrell, told her childrenwhen she was in hospital that she wanted to do a Will, without any mention of already having done one. - That, according to the evidence of James Murrell, though he told Irene Murrell that he could not find the Will she had written inJune when she was in hospital in October, and though arrangements were made for a lawyer to attend upon her for the execution of anEnduring Power of Attorney, no new Will to replace the lost Will was prepared. - That, according to the evidence of her children, while in hospital Irene Murrell expressed distrust of James Murrell with regard to

her money and financial affairs. - That, according to the evidence of Irene Murrell’s children and their spouses or partners, James Murrell at the funeral home the day after Irene Murrell’s death, in a discussion about whether or not there was a Will, did not say there was a Will, and said that it did not matter that there was no Will because he could do one later. - That, according to the evidence of Irene Murrell’s children, though James Murrell was told in November, 2011 that he did not have authority to administer Irene Murrell’s estate as he had purported to do, he did not reply for 2 months, and when he did reply, it was to reveal the existence of the Will. - That, a forensic handwriting analysis has concluded that the signature on the Will is probably not genuine. [ 26 ] I dismiss the application for a

summary determination of James Murrell’s application for administration of the estate of Irene Murrell with Will annexed. I direct that if Mr. Murrell wishes to pursue his application further, there be a trial of the issue as to the validity of the purported Will dated June 4, 2011, and that Mr. Murrell file a Statement of Claim in this action, naming the Respondents as Defendants, and pleading the relevant facts by February 15, 2014.

The timelines and procedures applicable thereafter will be those set out in the Rules of Court for any other civil action. [ 27 ] I further direct that the issue as to whether the Will, if valid, effectively grants to James Murrell title to the mineral interest owned by Irene Murrell be determined in the same proceeding. I direct that Mr. Murrell, in the Statement of Claim, plead any facts relevant to the determination of that issue. [ 28 ] Finally, I direct that Mr. Murrell include any claim he wishes to make for relief under the Dependant’s Relief Act in the same Statement of Claim. I observe that Mr.

Murrell sought to claim that alternative relief in this application. The brief filed by his counsel on August 22, 2013 set out, in paragraph 118, facts relevant to that application. But there was no evidence filed to establish those facts. The issue could not therefore be addressed. [ 29 ] Costs of this application will be determined at the trial I have ordered. Heard on the 10 th day of September, 2013. Dated at the City of Edmonton, Alberta this 24 th day of December, 2013. B.R. Burrows J.C.Q.B.A. Appearances: David M. Stults for the Applicant Phyllis Van Campenhout for the Respondents