Cordell v Shiels Estate, 2016 ABQB 218

Court of Queen ’ s Bench of Alberta Citation: Cordell v Shiels Estate, 2016 ABQB 218 Date: 20160414 Docket: ES03 138215 Registry: Edmonton Court File Number ES03 138215 Court Court of Queen’s Bench of Alberta (Surrogate Matter) Judicial Centre Edmonton Estate Name Lenora Kathleen Shiels Applicants (Plaintiffs) Ellen Shiels Cordell and Lisa Jane Cordell Respondent (Defendant) Carole Gail Day Nipshank _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Eric F. Macklin _______________________________________________________ I.

Introduction [ 1 ] Lenora Kathleen Shiels (the Testator) and Carole Gail Day Nipshank lived together for 29 years until the Testator’s death in 2010. Beginning in 1984, they lived in a house situated on property purchased by the Testator and her mother (Harriet Elizabeth Shiels) who each held an undivided ½ interest in the subject property. The Testator’s mother bequeathed her ½ interest to the Testator on her death on October 12, 2008. The Testator died on June 14, 2010 at the age of 61.

[ 2 ] Carole Nipshank, now 69 years old, still lives in the house. She claims a life interest in the house pursuant to a lost or destroyed handwritten Codicil to the Testator’s Will. She filed a Caveat to protect that interest on January 14, 2015. [ 3 ] Ellen Shiels Cordell and Lisa Jane Cordell are sisters, and the Testator’s nieces, to whom she bequeathed the subject property in her Will of April 2, 2007. They bring this Application for an order discharging Ms. Nipshank’s Caveat.

Carole Nipshank brings a Cross-Application for a declaration that the Testator granted her a life estate in the home on the subject property. II. Background Facts [ 4 ] On December 12, 2003, the Testator executed a Will (the 2003 Will) wherein she bequeathed her interest in the subject property to a friend, but subject to the condition that a “mother-in-law suite” be constructed in the house for the use and enjoyment of Carole Nipshank for her lifetime. She further bequeathed the residue of her estate to Ms.

Nipshank for her own use absolutely. [ 5 ] On April 2, 2007, the Testator executed a new Will (the 2007 Will) wherein she bequeathed her interest in the subject property to her nieces, Ellen Cordell and Lisa Cordell. There was no provision for a life interest of any kind for Carole Nipshank in the house. The Testator did, however, bequeath the “rest and residue” of her estate to Ms. Nipshank for her own use absolutely. The 2003 and the 2007 wills were both prepared by the Testator’s solicitor, Raydon Frayne. In discussing the removal of the life interest for Ms. Nipshank, the Testator told Mr.

Frayne that shares she expected to receive from her mother’s estate, and which would ultimately form part of the residue of her own estate, would have sufficient value to provide Ms. Nipshank with security. [ 6 ] In 2009, and with the Testator’s permission, Ellen Cordell built a house for her family on the subject property. The Testator assisted her niece by providing security for a loan in the form of a line of credit of $165,000 registered by way of a mortgage against the Testator’s interest in the property.

Ellen agreed to make all payments owing on the line of credit. [ 7 ] Carole Nipshank testified that she was told by the Testator on several occasions that after the Testator’s death, Carole would be able to continue living in the house rent free until she either passed away or decided to move. She testified that in approximately 2008, the Testator showed her a handwritten Codicil to her Will giving her the right to live in the house until she died. The Testator further advised her that she had also shown the Codicil to her niece, Ellen Cordell. Ms.

Nipshank says that the Codicil was in the Testator’s handwriting and had been signed by her. [ 8 ] The Testator died on June 14, 2010. John Logan, the Testator’s brother, was appointed as the Personal Representative (PR) under the terms of the Will. John Logan testified that in his role as PR, he convened a meeting at the home of the Testator on June 27, 2010 to read the Will. Present at the meeting were Mr. Logan, his wife Bonnie Logan, Carole Nipshank, the sisters Cordell and their mother Carolyn Cordell. [ 9 ] Mr.

Logan stated that after reading the Will to the group, Ellen Cordell said that part of the Will was missing and that she had read the missing part which gave Carole Nipshank the right to live in the Testator’s house for the rest of her life. On July 27, 2010, he phoned Mr. Frayne’s office and left a message relating to the alleged Codicil. His note from that telephone message reads: “alleged that a Codicil exists – re: Carole staying at the house”. Mr.

Logan testified that this comment was a reference to the statement made by Ellen Cordell at the meeting of June 27, 2010. [ 10 ] Bonnie Logan also testified that when John Logan finished reading the Will, Ellen said that part of the Will was missing and that she had read the missing part which gave Carole Nipshank the right to live in the Testator’s house for the rest of her life. Bonnie also deposed that Ellen asked if the Testator’s car had been checked for the missing part of the Will as she had last seen it on the dash of the Testator’s car.

When they did check the Testator’s car, they found that it had been thoroughly cleaned which, Bonnie testified, was unusual for the Testator. There is a reference in Bonnie’s notes following the June 27 meeting to “other Will” which she says is a reference to Ellen’s statements. [ 11 ] On the first page of handwritten notes prepared by Bonnie Logan contemporaneously with the meeting of June 27, she indicated that “Carolyn Cordell provided John with the death certificates, funeral documents, paid bill for the funeral and all of Lenora’s cards (eg. DL, VISA, Bank Cards, Birth Certificate, etc.)”.

This note follows the list of the participants at the meeting. [ 12 ] Carole Nipshank also testified that following the reading of the Will, Ellen Cordell had said something like “there is more to it, where is the rest of the Will?” Both Lisa Cordell and Carolyn Cordell confirmed that Ellen Cordell had said something along the lines of “there was something different” or “there was something missing”. [ 13 ] In her testimony, Ellen Cordell acknowledged that following the reading of the Will, she stated that she had “also seen something that I thought was different than what he read”.

She said that the document she had seen was in the Testator’s car and was a partially typed and partially handwritten document. While she said that it gave Carole Nipshank no interest in the land, she testified that, in fact, part of the document had been crossed out and “the crossed out part talked about Carole not living on the farm”. She later said that her understanding of the document was that Carole “wasn’t going to be getting the land.” [ 14 ] When the issue of the possible existence of another written document relating to the Testator’s Estate was raised at the meeting of June 27, 2010, Mr.

Logan said that they looked in the house for the “hope chest” that the Testator had kept and which he had seen a number of times. He knew that the Testator had kept many of her important personal documents in the hope chest. It was not found and Mr. Logan testified that it appeared someone had gone through the Testator’s belongings before he had had a chance to do so himself. [ 15 ] Carole Nipshank also testified that the Testator kept all of her important documents in her hope chest and that following the reading of the Will, the hope chest could not be found. It was not in its usual place. Ms.

Nipshank believed it had been taken by Carolyn Cordell. She was later told by Ellen Cordell that Carolyn had given it to her.

[ 16 ] Carolyn Cordell denied ever removing the hope chest. Ellen Cordell testified that she had taken it but not until about one week following the reading of the Will. She testified that she did not see or remove any Will or Codicil from the hope chest at any time. [ 17 ] A meeting later held at the offices of Mr. Frayne was attended by Mr. Logan, Bonnie Logan, Carole Nipshank, the sisters Cordell and Carolyn Cordell. Mr. Logan testified that both Ellen and Lisa acknowledged that Ms. Nipshank had a right to live in the Testator’s house after the Testator’s death.

The purpose of the meeting was to review a “life tenancy agreement” that Mr. Frayne had prepared. A copy of the draft agreement was provided to Mr. Logan. [ 18 ] Carole Nipshank also stated that Ellen Cordell admitted at the meeting that she had seen the handwritten Codicil and they discussed an agreement among them for Ms. Nipshank to stay in the house for her remaining years. No such agreement was ever reached. [ 19 ] Mr. Frayne testified that he advised those bringing forward the suggestion of a Codicil (or other written addendum to the Will) that they must search and attempt to find that document.

He told them that “the Will is the Will” unless another document was found. [ 20 ] In August 2010, Mr. Frayne, as counsel for the PR, advised counsel for Carole Nipshank that the Cordells “may be agreeable to allowing [Ms. Nipshank] to remain in the residence.” In correspondence to the PR in September 2010, Mr. Frayne advised that Ms. Nipshank was in “a vulnerable situation” and likely had a claim under “the Dependants’ Relief Act ”.

He suggested that the PR contact her to determine what she intended to do so that a strategy for dealing with her possible claim may be developed or a life estate may be negotiated and a potential claim avoided. [ 21 ] Mr. Frayne was advised in early September 2010 that Carolyn Cordell was doing renovations to the home with a view to moving in. By letter dated September 9, 2010, he instructed her to stop and to provide a list of any items removed from the house. [ 22 ] In a response to Mr.

Frayne on September 15, 2010, on behalf of herself and her mother, Ellen Cordell stated: I would like to continue the improvements that are being made to the residence that Carole resides in without the idea that anyone would be living in there other than Carole as it will only make the living space cleaner and safer for her to live... The living conditions of the house that Lenora and Carole shared, I feel was not healthy and as they were not able to complete the work themselves, I would like to be able to improve the house for Carole. . . . [ 23 ] Mr.

Logan testified that he and the Testator were very close siblings and in his many conversations with her prior to her death, she was explicit in stating that she wanted Carole Nipshank to be able to live rent free in the house for as long as she wished. These conversations occurred frequently. The last such conversation took place a few months before the Testator’s death. Mr.

Logan did state that he was never advised by the Testator that any documentation had been prepared or existed providing the Respondent with a life estate and, while he understood the term “Codicil”, he never heard that term in relation to the Testator’s Estate until after she had died. Indeed, he did not know that he was named as the PR until he was provided with a copy of the Will by Carolyn Cordell after the death (though Carolyn Cordell denied providing him with a copy of the Will). [ 24 ] By email dated November 7, 2010, Ms. Nipshank advised Mr.

Frayne that, as the holder of a life estate in the house, it was “basically” hers to do with as she pleased until she died and asked him to so advise the Cordells. [ 25 ] Around this time, negotiations were taking place as to a potential life tenancy agreement between Ms. Nipshank and the Cordells which would essentially provide Ms. Nipshank with exclusive, rent free, use of the farm house for life. [ 26 ] No agreement was ever reached and counsel for the Cordells forwarded a letter dated January 17, 2011 to Ms.

Nipshank stating that the Cordells were “willing to let [her] stay in the upper level of the House for minimal rent that will essentially cover their expenses for the upkeep of the property”. The letter further stated that the Cordells were “under no obligation to do this” as the “Will specifically granted the House” to them. The letter further disputed that Ms. Nipshank was an Adult Interdependent Partner (AIP) of the Testator. [ 27 ] John Logan withdrew as PR of the Estate on October 14, 2011 due to health concerns.

The alternate PR named in the Will also renounced. [ 28 ] Ellen Cordell stopped making payments on the line of credit in November 2012. [ 29 ] Carole Nipshank applied for a Grant of Administration with Will Annexed by Application filed March 26, 2013.

By Order dated October 4, 2013, the Respondent was appointed as Administrator of the Testator’s estate and a Grant of Administration with Will Annexed was issued (“the Grant”). [ 30 ] In Ellen Cordell’s Affidavit of November 3, 2014, sworn in support of her application to have title to the property transferred into the names of herself and her sister, she swore that she “ceased making any further payments” on the line of credit due to the refusal by Ms. Nipshank to transfer title to the property to them. She also swore that the mortgage fell into arrears when Ms.

Nipshank failed to make payments under the mortgage. Neither statement was accurate as Ms. Nipshank did not become the administrator of the estate until October 4, 2013. That is, Ms. Nipshank had no authority to deal with the estate in any manner or make any mortgage payments until the Order of October 4, 2013 and therefore, no ability or right to effect any transfer of the property to anyone. Quite simply, the mortgage fell into arrears because Ellen Cordell stopped making payments in November 2012. [ 31 ] Ultimately, Ms.

Nipshank did refuse to transfer the subject lands into the names of the Cordells in her capacity as Administrator of the Estate. The Cordells say that they were unaware of the foreclosure action until the redemption period was about to expire. They brought an Application on November 18, 2014 to compel the transfer of the lands to them so as to allow them to redeem the mortgage. Ms. Nipshank did not attend at that Application. The Order was granted on that date, the transfer occurred on December 15, 2014 and title was registered in their names.

[ 32 ] The Order of November 18, 2014 also required Ms. Nipshank to vacate the property. The issue of whether she was entitled to a life estate in the property was not before the Court. The Order to vacate has been stayed pending the determination of that issue in this action. [ 33 ] The first time Ms. Nipshank asserted the existence of the Codicil to the Cordells was at the time she registered the Caveat on January 14, 2015. Ms.

Nipshank did not mention the existence of a Codicil to the Cordells at any time prior to that date. [ 34 ] On January 30, 2015, the Cordells filed an Application seeking to have the Caveat discharged. [ 35 ] On April 14, 2015, Ms. Nipshank filed a Cross-Application seeking to establish that she has a valid life estate in the Property. [ 36 ] No handwritten Codicil prepared by the Testator has ever been located or produced. [ 37 ] Additional facts adduced in evidence will be referred to below in the context of the issue or issues to which they relate. III. The Wills and the Grant of Administration A.

The 2003 Will [ 38 ] The 2003 Will was prepared by Mr. Frayne. It included the following provisions: 1. The appointment of the Testator’s brother, John Logan, as the personal representative and the appointment of Robert Logan as the alternate personal representative. (Clauses 2(

a) and (b)) 2. A specific bequest of the Testator’s undivided ½ interest in the subject property to her friend, Natasha Dawn Briscoe, subject to the construction, at the expense of the estate, of a “mother-in-law suite on the property for my friend, Carole Gail Day Nipshank, for her use and enjoyment during her lifetime, no rental to be charged”. (Clause 4(b)(i)). 3. To pay or transfer the rest and residue of the estate to the Testator’s friend, Carole Gail Day Nipshank, for her own use absolutely. (Clause 4(c)) B. The 2007 Will [ 39 ] The 2007 Will was also prepared by Mr. Frayne.

It included the following provisions: 1. The appointment of John Logan as the personal representative and the appointment of Robert Logan as the alternate personal representative. (Clauses 2(

a) and (b)) 2. A specific bequest of the Testator’s interest in the subject property to her nieces, Ellen Shiels Cordell and Lisa Jane Cordell. (Clause 4(b)). 3. To pay or transfer the rest and residue of the estate to the Testator’s friend, Carole Gail Day Nipshank for her own use absolutely. (Clause 4(c)) [ 40 ] There is no provision in the 2007 Will for a life estate in the house, or any part of it, for Carole Nipshank. Notes prepared by Mr. Frayne on April 2, 2007 confirm the Testator’s desire to leave the farm to Ellen Cordell and Lisa Cordell with the residue being left to Ms. Nipshank. C.

The Grant of Administration [ 41 ] As previously noted, both John Logan and Robert Logan renounced their right to act as PR under the Will. On March 5, 2013, Carole Nipshank completed an Application for a Grant of Administration with Will Annexed (the Grant). Ms. Nipshank was entitled to apply for the Grant as she was the only residual beneficiary and had the first right to apply upon the renunciations by John Logan and Robert Logan. She became the PR on October 4, 2013. [ 42 ] The Application for Grant includes the following schedules or documents: 1. NC3. This

schedule includes particulars relating to the Testator and indicates that the Testator had an AIP identified as Carole Nipshank. It also indicates that Ms. Nipshank lived with the Testator in a relationship of interdependence for a continuous period commencing in January 1982 and ending June 14, 2010. 2. NC4. This

schedule states that: To the best of the Personal Representative’s information and belief, this is the deceased’s original last Will. The Personal Representative has examined the Will and observes that there appears to be no erasures, changes or other additions to the Will. 3. NC5. This document names Carole Nipshank as the PR and identifies her relationship to the Testator as that of an AIP.

4. NC6. This

schedule lists the beneficiaries and includes Carole Nipshank as the AIP of the Testator entitled to “all of rest and residue” of the estate and the Cordells as entitled to the Testator’s interest in the subject property. 5. NC19. This document is a “Notice to Beneficiary (Residuary)”. It was signed on March 5, 2013 and sent by Carole Nipshank in her capacity as the Personal Representative of the Estate to herself in her capacity as the Residuary Beneficiary of the Estate. It provides, in part: Enclosed with this notice is a copy of the Application for a Grant of Administration with Will Annexed.

This includes a copy of the Will and a list of the Estate property and debts. Once the Court issues the Grant, the Personal Representative will collect in the property, pay the debts, and complete the administration of the Estate and anything else required of the Personal Representative. Then the Personal Representative will be in a position to account to you before distributing any Estate left after payment of all debts and expenses. Ms. Nipshank signed the acknowledgement of receipt of this Notice. 6. NC23. This document is a “Notice to spouse/adult interdependent partner of deceased”.

It refers to the Dependants Relief Act . This Notice was also signed on March 5, 2013 and sent by Carole Nipshank in her capacity as the Personal Representative of the Estate to herself in her capacity as an Adult Interdependent Partner. It provides, in part: The law requires that this notice must be given to you because you are the spouse/ adult interdependent partner of Lenora Kathleen Shiels, but you have not been given all the property in the Estate. The Dependants Relief Act allows the spouse/ adult interdependent partner to apply to the Court to receive maintenance and support from the estate.

The Court can change the distribution of the estate and give you more or all of the Estate if the Court decides the circumstances warrant it. T here are some time requirements which must be met before the Court can hear any Application. You should begin your Application within six months after the date the Court issues the Grant of Administration with Will Annexed. After that, the Personal Representative may distribute the Estate property and you can only apply if the Court lets you. You can then only ask for some or all of the property in the Estate that is still undistributed at that time. Ms.

Nipshank signed the acknowledgment of receipt of this Notice. [ 43 ] The Grant was issued by Order dated October 4, 2013. No application has ever been brought by Carole Nipshank for relief in her capacity as the AIP of the Testator under the terms of the Dependants Relief Act . Further, there was no reference in any of the documents submitted with the Application for the Grant to any Codicil, nor any suggestion of a life estate in the house being granted or promised to Ms. Nipshank. IV.

Issues [ 44 ] As stated above, Carole Nipshank brought no application at any time for maintenance or support from the estate as an AIP of the Testator. The Grant was issued on October 4, 2013 and the six months for bringing such an application expired on April 4, 2014. While the property remained undistributed until the Order of November 18, 2014 transferring it to the Cordells, there was no application prior to that date for a change in the proposed distribution of the undistributed property so as to provide a life estate for Ms. Nipshank.

She has acknowledged that she is out of time to advance such a claim. [ 45 ] These applications relate solely to Carole Nipshank’s allegation of a right to a life estate in the house on the subject property pursuant to a handwritten Codicil that has been lost or destroyed. The two issues for determination are: 1. Does the Grant of Administration of October 4, 2013 preclude Carole Nipshank, who is the Administrator of the Estate, from now claiming a life estate pursuant to a Codicil? 2.

Did the Testator, Lenora Kathleen Shiels, make a valid holograph Codicil to her Will granting a life estate in the house to Carole Nipshank? V. Analysis [ 46 ] The effect of a dismissal of the Application to set aside or discharge the Caveat and a corresponding determination that Carole Nipshank is entitled to a life estate would necessarily result in the Grant being set aside.

This is a determination wholly within the Court’s discretion and in order to bring an Application to set aside a Grant, the one seeking to do so must establish that there is a genuine issue to be considered: Quaintance v Quaintance Estate , 2006 ABCA 47 , 56 Alta LR (4 th ) 6. [ 47 ] Whether there is a genuine issue to be considered is not a high threshold and after considering all of the evidence, if the Court is in doubt on the balance of probabilities as to whether there is an issue to be tried, then proof may be required in solemn form.

If the Court concludes that formal proof of the Will is not required because there is no genuine issue to be considered, the Court may decide not to remit the matter to trial and declare the Will to have been formally proven: Quaintance Estate at para 18 . [ 48 ] In this case, there is a genuine issue to be considered and the matter did proceed to trial.

A. Does the Grant of Administration of October 4, 2013 preclude Carole Nipshank from now claiming a life estate pursuant to a Codicil? [ 49 ] On October 4, 2013, the Grant of Administration with Will Annexed in the Estate of Lenora Kathleen Shiels was issued. The question to address here is the effect of the Grant and, more particularly, Ms. Nipshank’s role as the personal representative of the estate. [ 50 ] The 2007 Will names John Logan as the PR and his son, Robert Logan, as the alternate PR. Each renounced his respective right to apply for a Grant of Probate or Administration. Consequently, Ms.

Nipshank applied for the Grant as the only residual beneficiary. On the strength of her application, she was appointed as the PR and the Grant was issued on October 4, 2013. [ 51 ] There is no reference anywhere in the Application to any Codicil or any right of Ms. Nipshank to a life estate in the house.

In effect, this application for an Order granting her a life estate will result in an amendment to the Grant which, by its very nature, affirmed the validity of the Will annexed to it. [ 52 ] As noted above, an attempt was made to negotiate a life tenancy agreement between Carole Nipshank and the Cordells in 2010 and 2011 but to no avail. Ms. Nipshank received a letter dated January 17, 2011 from the Cordells’ then solicitor disputing her potential claim as an AIP of the Testator.

The letter did, however, state that the Cordells were willing to let her stay in the house for minimal rent. [ 53 ] Carole Nipshank’s application for the Grant included a number of documents (such as the NC3, NC5, NC6, and NC23), all of which either name Ms. Nipshank as the AIP of the Testator or refer to her right to bring an application as an AIP for maintenance and support from the Estate. She was clearly aware of her potential entitlement to relief from the Estate as an AIP of the Testator. [ 54 ] Prior to the filing of the Codicil on January 14, 2015, Ms.

Nipshank took no steps to advance a claim against the Estate when she appeared to have had two bases for doing so: first, as an AIP and; second, as the holder of a promised life interest pursuant to a Codicil. It was only after the lands had been transferred to the Cordells by Court Order on November 18, 2014 that Ms. Nipshank took steps to advance a claim, and that was pursuant to a Codicil that had been lost or destroyed. She made no attempt to assert a right pursuant to the Dependents Relief Act as an AIP of the Testator. [ 55 ] While the actions (or inactions) of Ms.

Nipshank might suggest that she should not now be able to advance a claim affecting the property that was subject to the Grant that she, in fact, applied for as the PR, I am satisfied that there is no legal barrier to her doing so. [ 56 ] The Surrogate Rules , Alta Reg 130/1995, provide: 75(1) A personal representative ... may apply to the court (

a) to obtain formal proof of a will, whether or not an application for a grant has been made under

Part 1; (

b) to set aside a grant issued under

Part 1 and require formal proof of the will... 81(1) The court may require formal proof of a will with respect to which an application is made ... whether before or after a grant is issued. [ 57 ] Rule 75(1)(

a) and (

b) clearly provide that the PR may be the one to apply to obtain formal proof of a Will, or to set aside a grant and obtain formal proof, and that such an application may be made after the Application for a Grant has been made. Further, Rule 81(1) clearly gives the Court authority to require formal proof of a Will even after the Court has issued a Grant in common form. [ 58 ] A Grant of Administration for a Will proven in common form assists the PR in administering the Estate.

Whereas an Executor’s authority begins on the Testator’s death, administrators have no authority under the Will until the Court appoints them. The Grant of Administration in common form provides an expeditious route for an administrator to gain this authority. [ 59 ] Proof of a Will in common form does not conclusively prove its validity or prevent further challenges to it. Proof of a Will in common form is essentially a “desk application” reviewed by a Judge and endorsed without any viva voce evidence.

Accordingly, and unlike civil actions determined on the hearing of viva voce evidence in open Court, the doctrine of res judicata does not bar an individual from later attempting to revisit an issue regarding the Will.

Simply put, res judicata does not apply where a Will is proven only in common form. [ 60 ] The importance of the distinction between proof of a Will in common form and proof in solemn form was explained by Savage J. in Romans Estate v Tassone , 2009 BCSC 194 at paras 48 to 50 , 47 ETR (3d) 286, aff’d 2009 BCCA 421 : 48 Often proof of a will in common form is all that is required for the administration of an estate where there is a will.

Proof in common form, however, does not conclusively determine the will to be the valid last will of a person. 49 Proof of the will in solemn form provides some protection for the will, in that it will not later be set aside, unless obtained by fraud or a later will is found ... the safeguarding effect of a grant in solemn form is an application of the principle of res judicata to what is a judgment in rem . [ 61 ] Price J. cited Romans Estate with approval in McLaughlin Estate v McLaughlin , 2015 ONSC 4230 at para 41 , 10 ETR (4th) 10, commenting: 50 ...It must be remembered that the testatrix, being the party whose disposition of property is at issue, is unable to participate in the

proceeding. In these circumstances, the proceeding cannot be treated like a regular civil motion insofar as rules of proscription areconcerned... [62] These comments are consistent with Rules 75(1) and 81(1) of the Surrogate Rules cited above which, again, make it clear thata Grant of Administration does not constitute a barrier to a party wishing to challenge a Will.

However, once the Will has been proven insolemn form, res judicata does apply: Haljan v Serdahely Estate, 2008 ABQB 472, 453 AR 337. [63] The fact that it is the PR who applied for the Grant and is the one who later challenges it may cause the later trial Court toconsider the credibility of the PR. As stated by Hamilton J.A. in Garwood v Garwood Estate, 2007 MBCA 160, 225 Man R (2d) 30: 48 This is not to say that the credibility of the appellant is also not at issue.

One must look carefully at the bona fides of his application,in light of the fact that he, as executor, propounded the will in question and filed his application after he and the respondent separated.While these circumstances raise questions and perhaps suspicions ... they do not prohibit such an application. What the appellant mustdemonstrate is that he has an "honest case" for revocation ... Obviously, whether the appellant has an "honest case" demands aconsideration of his credibility. [64] The material submitted with the Application by Ms.

Nipshank included the NC4 which stated that to the best of herinformation and belief, the 2007 Will was the Testator’s original Last Will and that she had examined it and observed that there appearedto be “no erasures, changes or other additions to the Will”. This

Schedule does refer only to the Will itself and may be interpreted suchthat it did not seek or require disclosure of a subsequent Codicil. In fact, there appear to be no erasures or changes to the Will. To theextent that the NC4 requires a similar statement in relation to the alleged Codicil, Ms. Nipshank has never been in possession of thatdocument and so would be unable to comment on its current appearance. [65] Furthermore, as an Administrator, Ms.

Nipshank would have had no authority or ability to help with the Estate until sheobtained the Grant, and it is reasonable to infer that she simply applied when she did believing that she would be required in the verynear future to deal with Estate issues. [66] As stated above, Carole Nipshank had potential claims against the Estate of the Testator as an AIP of the Testator, and as thebeneficiary of a life estate pursuant to a lost or destroyed Codicil.

The Cordells argue that as she is now barred from bringing a claim inher capacity as an AIP, her claim at this point in time as the beneficiary under a Codicil is an attempt by her to do indirectly what shecannot do directly. I disagree. The claims are distinct and independent of each other. A claimant is not obliged to pursue all claimsavailable to her. She can choose. She foregoes a claim at her own risk, but that does not preclude her from pursuing another possiblyviable claim, as long as there is no procedural bar, such as the expiration of a limitation.

Carole Nipshank did not advance a claim as anAIP of the Testator. That was her choice. It does not, however, prevent or prohibit her from bringing an action claiming an interest in adifferent capacity. [67] Carole Nipshank did not claim any interest pursuant to the lost Codicil until she filed the Caveat on January 30, 2015. She alsodid not refer to her potential right to a life estate pursuant to a Codicil (or as an AIP) when she applied for the Grant as the PR.

The factthat no mention was made of her potential right under a lost or destroyed Codicil for almost five years following the death of the Testatormust be considered and may, of course, impact upon her credibility. Clearly she is a materially interested witness (and claimant) and it istherefore important for this Court to determine whether there is persuasive credible evidence from other sources that serves tocorroborate the evidence of Ms. Nipshank.

It would be inappropriate and improper to simply accept the evidence of a claimant in thesecircumstances, to the detriment of other interested parties, without such corroborating evidence. B. Did the Testator make a valid holograph Codicil to her Will granting a life estatein the house to Carole Nipshank? [68] The alleged Codicil has not been produced. Neither it, nor any copy of it, has been found. It has been suggested by Ms.Nipshank that it was removed, with the Testator’s hope chest, by Carolyn Cordell, the mother of the sisters Cordell. Mr. Loganconfirmed Ms.

Nipshank’s evidence that the hope chest, which he had seen on numerous occasions, was missing from the house on June27, 2010. [69] Carolyn Cordell, the mother of the sisters Cordell, denied having removed the hope chest at any time. Ellen Cordell testifiedthat she removed the hope chest from the home about one week after the reading of the Will. She removed it, as it was a family mementoand contained other family mementoes. She testified that she had received permission from Ms. Nipshank to remove the hope chest andshe did not find any Codicil or copy of any Will in it.

Ellen Cordell would have known at that time, however, that only Mr. Logan couldgrant permission as he was the PR and the only one who could provide authority with respect to the assets of the Estate before probate. Iaccept the evidence of Ms. Nipshank that following the death of the Testator, Carolyn Cordell asked if she and her daughters could gothrough her sister’s belongings. Ms.

Nipshank allowed them to do so. [70] As indicated by the notes of Bonnie Logan at the reading of the Will on June 27, 2010, Carolyn Cordell provided John Loganwith a number of the personal documents that either related to the death of the Testator or had belonged to her. Those included the deathcertificate, funeral documents and the paid bill for the funeral. They also included the Testator’s driver’s licence, VISA, bank cards, birthcertificate, and possibly others.

No viva voce evidence was proffered at trial as to how these documents came into the possession ofCarolyn Cordell, nor was it disputed that she provided them to Mr. Logan. While the documents relating to the Testator’s death wouldnot likely have found their way to her hope chest, some of the other documents would likely have been included with her personalbelongings, whether in the hope chest or elsewhere. I am satisfied that Carolyn Cordell and Ellen Cordell had access to personaldocuments belonging to the Testator, whether in the hope chest or elsewhere, prior to the reading of the Will.

I further believe that theywere removed from the house by Carolyn Cordell or Ellen Cordell. [71] When a will has been shown to have been last in the custody of the testator and cannot be found at her death, a presumptionarises that the testator destroyed the will with the intention of revoking it: Re: Robinson Estate, (AB KB), [1930] 2

WWR 673, [1930] AJ No 16 at para 1 (Dist Ct); Walsh v Cruickshank, (AB KB), [1947] 2 WWR 464, [1947] AJ No5 at para 6 (SC), Wagenhoffer v Wagenhoffer Estate, [1986] SJ No 8, 22 ETR 60 (CA). The presumption does not apply if the court isconvinced that it did exist after the testator’s death: Re Cole Estate, [1994] NSJ No 256 (CA).

The burden on the person who is tryingto rebut the presumption is very heavy: Sigurdson v Sigurdson, (SCC), [1935] 4 DLR 529, [1935] SCJ No 55,MacBurnie v Patriquin, (NS CA), [1975] NSJ No 447 at para 10, 14 NSR (2d) 680 (CA). [72] Laforme J.A. for the Court in Sorkos v Cowderoy (2006), 215 OAC 194, at para 8 (CA) set out a test forproving a lost Will from B.

Schnurr ed, Estate Litigation, 2d ed (Toronto: Carswell, 1994-) at 17-3: 1. due execution of the Will; 2. particulars tracing possession of the Will to the date of death, and afterwards if the Will was lost after death; 3. rebuttal of the presumption that the Will was destroyed by the Testator with the intention of revoking it; and 4. proof of the contents of the lost Will. [73] The test for proving a lost Will would apply equally for proving a lost Codicil. [74] While s 51 of the Alberta Evidence Act, RSA 2000, c A-18 provides that a Grant of Probate or Letters of Administration shallbe received in evidence as proof of a devise or testamentary disposition affecting real estate, this does not mean that these are the onlyways in which they can be proven.

Where the allegation is that a testamentary disposition affecting real estate has been lost or destroyed,its existence and possible effect may be established if the test set out in Sorkos is satisfied. [75] Parol evidence as to the existence and content of the document may be received if it is sufficiently clear: Sugden v Lord StLeonards, [1876] P & D 154 (CA); Re Cullen (1852), 3 Nfld R 308 (SC), Wagenhoffer Estate. [76]

Section 11 of the Alberta Evidence Act provides that the interested party (Ms. Nipshank in this case) cannot obtain a judgmentor decision on her own evidence in respect of any matter occurring before the death of the Testator unless the evidence is corroboratedby other material evidence. 1. Due execution of the Codicil [77] Carole Nipshank lived with the Testator from 1981 or 1982 to the Testator’s death on June 10, 2010. After 1984, they lived ina house on property owned by the Testator and her mother. The Testator and Ms. Nipshank shared monthly expenses and Ms.

Nipshankoften contributed to other expenses for things required around the farm. However, she never paid rent. She still resides in the house. [78] In her Will of December 12, 2003, the Testator bequeathed a life interest in a “mother-in-law suite” on the subject property forCarole Nipshank’s use and enjoyment during her life time, with no rent to be charged. The suite was to be built according to the wishesof Ms. Nipshank and the costs to be paid out of the Estate. [79] The provision of a life interest was not included in the Testator’s Will of April 2, 2007.

It must be presumed that the omissionor removal of the provision for a life estate was done intentionally by the Testator. [80] Mr. Frayne’s notes of his meeting with the Testator prior to the preparation of the 2007 Will refer to the removal of the lifeestate and reflect information provided by the Testator that she was expecting cash and shares in an investment company from hermother’s estate which would ultimately form part of her own estate and would all go to Ms. Nipshank. The notes indicate that theTestator was not concerned about Ms. Nipshank as she would receive everything but the land.

The fact that the Testator bequeathed theresidue of her estate to Ms. Nipshank at a time when she expected the residue to have significant value is a clear indication of her desireto ensure that Ms. Nipshank was cared for after her death. [81] It is unclear whether there was much cash or value to the shares in the mother’s estate when she died in October 2008.However, it is clear that there was little or no cash or value to the shares once they were received by the Testator.

As a consequence, theTestator would have known that the residue of her own estate would be much less than she anticipated at the time she providedinstructions to Mr. Frayne for the 2007 Will. With the knowledge that the residue in her own estate would no longer be adequate toprovide the desired security for Ms. Nipshank, it would not be surprising that she began contemplating other ways to provide suchsecurity and, in particular, the provision of a life estate in the house to Ms.

Nipshank. [82] I am mindful that under s. 18 of the Wills Act, RSA 2000, c W-12 which applied at the time, a will is not revoked bypresumption of an intention to revoke it on the ground of a change in circumstances. In other words, a change in circumstances alonewould be insufficient to establish the Testator’s intention to revoke any or all of her 2007 Will.

However, there is evidence of more thansimply the change in circumstances. [83] Carole Nipshank testified that she was advised by the Testator on several occasions that she would be able to continue livingin the house until she either passed away or decided to move. Ms. Nipshank knew that the Testator had intended to leave the farm to hernieces, the sisters Cordell, but sometime in or around 2008, the Testator advised her that she would never have to worry about a place tolive. In her e-mail of November 7, 2010 to Mr. Frayne, Ms.

Nipshank did not mention the Codicil but she clearly expressed her belief thatshe was entitled to a life estate in the house. [84] The Court heard testimony from Wendy Fraser, a casual friend of the Testator and Ms. Nipshank. She met them in 2006 or2007. She testified that the Testator, Lenora Shiels, had asked her for some help with her computer. In particular, she wanted help withthe Word program on the computer so she could prepare a document to change her Will. Ms. Fraser testified that she advised the Testatorthat the document must be a handwritten document or she should go to see her lawyer. Ms.

Fraser knew of the requirements frompersonal experience. The Testator refused saying that a lawyer was too expensive.

[ 85 ] According to Ms. Fraser, she told the Testator how to word the document and emphasized that it had to be in her own handwriting. This conversation took place in October or November of 2008. Ms. Fraser testified that the subject came up again around Christmas 2008 when she was visiting at the Testator’s home. She said that the Testator waved the document in her face and said something like “here is my change, is it legal?” Ms. Fraser reviewed the document and told her that she thought it was legal.

She then followed the Testator to her bedroom and the Testator asked her if it was legal to put the document in her hope chest. Ms. Fraser responded that it was but that she should give it to her lawyer for safe-keeping. Again, she confirmed that the document was handwritten and signed by the Testator. [ 86 ] Ms. Fraser testified that the first part of the document provided that Carole Nipshank could live in the house for the rest of her life and did not have to pay rent. She said that there was also a reference to Ellen Cordell and Lisa Cordell but she could not remember what it said in that respect.

She then recalls the Testator opening up her hope chest, placing the document on top of the other documents in the hope chest and closing it. [ 87 ] In late October or early November 2010, Wendy Fraser and Carole Nipshank went on a cruise together. It was suggested that their friendship was such that Ms. Fraser would be prepared to taint her evidence in favour of Ms. Nipshank. I do not accept that suggestion. Ms. Fraser indicated that she had met the Testator and Ms. Nipshank a few years earlier when they would shop at the Husky Gas Station in Stony Plain where Ms. Fraser was employed.

They became casual friends but nothing more. She would see them periodically on a social basis only and it was as casual friends that she and Ms. Nipshank went on a cruise together. [ 88 ] Carole Nipshank testified that she was shown a handwritten and signed Codicil by the Testator in late 2008 or early 2009 giving her the right to live in the house until she died. Ms. Nipshank did provide conflicting evidence concerning the handwriting on the Codicil. At Questioning by counsel for the Cordells, she testified that the document she saw was both handwritten and typed.

Subsequently, she corrected that evidence stating that the Codicil was all handwritten by the Testator and signed by her. She attributed her change in evidence to confusion between the Testator’s Will, which she had seen but not read, and the Codicil which was handwritten. I accept this evidence from her as to the reason for the apparent inconsistency in her evidence. [ 89 ] Carole Nipshank further testified that she thought that the Codicil also formed the basis for instructions the Testator intended to provide to a lawyer for the preparation of the Codicil.

However, I am satisfied that the document she saw was in the form of a Codicil. I am also satisfied that the document seen by Wendy Fraser around Christmas 2008 was the same document seen by Carole Nipshank. It was the Codicil. [ 90 ] John Logan, the Testator’s brother and the first PR named in the Will, testified to his close relationship with the Testator and that he had been advised by her on a number of occasions that she wanted Carole Nipshank to be able to live rent free in the house for as long as she wished. The last such conversation occurred just a few months before the Testator’s death. [ 91 ] Mr.

Logan further testified that Ellen Cordell stated at the meeting of June 27, 2010 convened for the reading of the Testator’s Will that a portion of the Will was missing and that she had read the missing portion which gave Carole Nipshank the right to live in the Testator’s house for the rest of Ms. Nipshank’s life. This evidence of John Logan is supported by that of his wife, Bonnie Logan, who recalled Ellen making the same comment.

She further testified that Ellen asked if the Testator’s car had been checked for the missing part of the Will as she had last seen it on the dashboard of the Testator’s car. [ 92 ] This testimony of John Logan and Bonnie Logan finds support in their own handwritten notes. In his note of July 27, 2010 regarding a message left for Mr. Frayne, Mr. Logan refers specifically to the alleged existence of a codicil regarding Carole Nipshank staying in the house.

In her notes of the June 27 meeting, Bonnie Logan referred to an “other Will”. [ 93 ] Ellen Cordell denied saying anything about what she had read in the document she had seen in the Testator’s car. She did testify, however, that the document she saw in the Testator’s car had “a part that was typed and crossed out, and the crossed out part talked about Carole not living on the farm”. After reading the portion that was crossed out, Ellen Cordell said that she did not read the rest of the document.

Bonnie Logan’s reference to the Testator’s car suggests that Ellen did, indeed, discuss the contents of the document at the meeting. There would have been no other way for Ms. Logan to know where Ellen had seen the document. I accept the evidence of Bonnie Logan and John Logan that Ellen Cordell indicated that the missing portion that she had seen did purport to give Carole Nipshank the right to live in the Testator’s house for the rest of her life. [ 94 ] Even assuming that Ellen Cordell did not refer to the contents of the missing document, her acknowledgement to having read the document is significant.

Specifically, her statement that she had read “something different than what Mr. Logan read” could only mean that whatever she read in the document must have been different from what she heard Mr. Logan read from the Will itself. The Will, as read by Mr. Logan, did not provide for Carole Nipshank to receive any interest whatsoever in the land. The words Ellen states were crossed out apparently spoke of Carole not living on the farm. The fact that they were crossed out would suggest that the Testator intended for Carole to live on the farm.

In short, I am satisfied that the document seen by Ellen also evidenced an intention by the Testator to provide an interest to Carole Nipshank in relation to her living on the farm. [ 95 ] Ellen Cordell testified that after she was initially told by the Testator that she and her sister would be inheriting the land, she became concerned about Ms. Nipshank living on the property and she wanted to be protected from anything that Ms. Nipshank might believe she was entitled to on the grounds that she was living there.

Ellen stated that she and the Testator had some discussions about entering into a co-ownership agreement whereby the Testator and the sisters Cordell would be named as co-owners of the subject property. It was unclear from the evidence how it was anticipated that this would necessarily allay Ellen Cordell’s concerns, but she believed such an agreement would do so. However, nothing ever came of it, as Mr.

Frayne was advised by the Testator on November 19, 2008 (reflected in notes to his file dated November 25, 2008) that she wished to “hold off on any co-ownership agreement or any other use agreement for her nieces on the property”. This discussion between the Testator and Mr. Frayne occurred after the death of the Testator’s mother and while there is no note to such effect, I am satisfied that it was likely upon the Testator’s realization that the cash and shares she expected from her mother’s estate were of little or no value and would not provide the expected security for Ms. Nipshank.

The fact that the Testator no longer wished to consider such an agreement with the sisters Cordell is further evidence of her desire to provide security for Ms. Nipshank in the form of a life estate in the house.

[ 96 ] Ellen Cordell knew that she and her sister were receiving the subject property from the Testator. Ellen sought permission from the Testator in 2009 to build a house on the property and sought her assistance in obtaining a line of credit secured by a mortgage on the property to fund the building of the house. There was no evidence as to why she felt it necessary to build a separate house on the subject property if Ellen knew that the entire property, including the old house, would be transferred to her and her sister upon the Testator’s death.

It may have been anticipated, as suggested by counsel for the sisters Cordell, that Lisa would eventually move into the old house. [ 97 ] The e-mail sent by Ellen Cordell on September 15, 2010 to Mr. Frayne is consistent with an understanding of the rights of Carole Nipshank and the intentions of the Testator. In that e-mail, Ellen expressed a wish that the improvements being done by her mother to the house in which Ms. Nipshank resided continue “without the idea that anyone would be living in there other than Carole”.

She stated that she “would like to be able to improve the house for Carole...” [ 98 ] The testimony of Carole Nipshank, as corroborated by Wendy Fraser, is evidence of the fact that a Codicil was prepared by the Testator and it did provide a life estate in the house to Ms. Nipshank. Both Ms. Nipshank and Ms. Fraser saw the Codicil and witnessed that it was in the Testator’s handwriting and signed by her.

It is consistent with the evidence in relation to what Ellen said and has stated that she saw. [ 99 ] The fact that the Testator bequeathed the residue of her estate in the 2007 Will to Carole Nipshank believing that it would have significant value evidences her intention to ensure that Ms. Nipshank was adequately provided for in the event of the Testator’s death. The statements by the Testator to Carole Nipshank and John Logan on numerous occasions before she died further evidence that intention.

I am satisfied that the document seen by Ellen Cordell in the Testator’s car did evidence a different intention of the Testator from that which was contained in the Will as read by Mr. Logan. Ellen Cordell had knowledge of that intention. Further, the fact that the Testator would no longer consider a co-ownership agreement with the sisters Cordell after it appeared that her mother’s estate would ultimately add little or no residual value to her own, supports the view that her intentions changed after she executed the 2007 Will.

Finally, the fact that Ellen Cordell requested permission to build a house on the subject property and sought assistance with financing from the Testator is also consistent with knowledge by Ellen of the Testator’s intention to leave a life estate in the existing house to Ms. Nipshank. [ 100 ] I am satisfied on a balance of probabilities that the Testator executed a true holograph Codicil which satisfied the requirements of s 7 of the Wills Act , as it was wholly in the Testator’s own handwriting and was signed by her. The Codicil was seen by both Carole Nipshank and Wendy Fraser.

The Testator’s intention to provide a life estate to Ms. Nipshank is supported by the evidence of the Logans, Mr. Frayne and Ellen Cordell. 2. Particulars tracing possession of the Codicil [ 101 ] With respect to the tracing of possession of the Codicil, I accept the evidence of Carole Nipshank that the Testator had shown her the holograph Codicil in 2008, approximately two years prior to her death. I also accept the testimony of Wendy Fraser that she witnessed the Testator placing the Codicil in her hope chest in late December 2008. [ 102 ] Both Ms.

Nipshank and John Logan testified that the Testator kept all of her important papers in her hope chest. Ms. Nipshank would have known this as she lived with the Testator for approximately 29 years. Mr. Logan would have known this as he had been in the house numerous times, was very close with the Testator, and had many discussions with her. Her confidence in him is evidenced by the fact that she named him as the PR in the Will. [ 103 ] I am also satisfied from the evidence that the hope chest was removed from the home shared by the Testator and Carole Nipshank at some point before Mr.

Logan was able to look for it after the reading of the Will. In other words, it was removed sometime between the Testator’s death on June 14, 2010 and the reading of the Will on June 27, 2010. I am unable to conclude whether it was removed by Carolyn Cordell or Ellen Cordell, but I am satisfied that it was removed by one of them and kept by Ellen Cordell in her home. Further, given that Carolyn Cordell did produce some of the personal documents of the Testator to Mr.

Logan at or near the commencement of the reading of the Will, and no explanation was given as to where those documents were found, I am left with the belief that the Codicil was probably kept with those other documents and likely in the hope chest. Alternatively, it may have been in the Testator’s vehicle, which was uncharacteristically clean by the time the Logans checked it. [ 104 ] While I am unable to determine conclusively what happened to the Codicil, I accept that it was probably held by the Testator and kept in her hope chest between 2008 and the time of her death. 3.

Rebuttal of the presumption of destruction and revocation [ 105 ] As there is no evidence confirming that the Codicil existed after the Testator’s death, I must determine whether the presumption of revocation has been rebutted. [ 106 ] When a Will or Codicil is lost, there is a presumption that it was destroyed by the Testator with the intention of revoking it.

Section 16 of the Wills Act , and now s 23 of the Wills and Succession Act , SA 2010, c W-12.2 provide various methods by which a Will or Codicil may be revoked.

This can be done by making another will or a written declaration of an intention to revoke, destruction of the will by the Testator, or destruction of it by someone else at the Testator’s direction. [ 107 ] In Haider v Kalugin , 2008 BCSC 930 at para 13 , [2008] BCJ No 1355, the Court set out a list of some of the factors that may be considered in determining whether the presumption of revocation has been rebutted (citations omitted): • whether the terms of the Will itself were reasonable; • whether the testator continued to have good relationships with the beneficiaries in the copy of the Will up to the date of death; • statements made by the testator which confirm or contradict the terms of distribution set out in the Will;

• where personal effects of the deceased were destroyed prior to the search for the Will being carried out; • the nature and character of the deceased in taking care of personal effects; • whether there were any dispositions of property that support or contradict the terms of the copy sought to be probated; • whether the testator was of the character to store valuable papers, and whether the testator had a safe place to store the papers. [108] The terms of the alleged Codicil are reasonable. They are consistent with the stated intentions of the Testator, the nature of herrelationship with Ms.

Nipshank, and the obvious intention of providing security for Ms. Nipshank both by providing for a life estate inthe 2003 Will, and the residue in the 2007 Will which was anticipated to be adequate for her future needs. [109] There is no evidence to suggest that the Testator ever changed her intention to provide the Respondent with a life interest in thehouse after 2008 when that intention was re-established and made known. Nor is there evidence to suggest that the Testator ever changedher intention to provide security for Ms.

Nipshank, or that their relationship was anything other than a good relationship that had lasted29 years. In this respect, the terms of the alleged Codicil are reasonable and consistent with the Testator’s relationship with Ms. Nipshankup to the date of death. [110] While it is recognized that Carole Nipshank is a materially interested witness, I do accept her evidence with respect to theintentions of the Testator as stated to her. On several occasions, the Testator advised Ms.

Nipshank, with whom she had lived for about29 years, that she would be able to continue living in the house rent free after the death of the Testator. [111] The evidence of Carole Nipshank in this respect is corroborated by the evidence of John Logan. He testified that the Testatorwas explicit about her desire for Carole Nipshank to be able to live rent free in the home. The Testator expressed this desire many timesup until a few months before her death. [112] There is no evidence to suggest that the Codicil was destroyed by the Testator.

There is no direct or circumstantial evidence ofdestruction in this case. [113] Although there is no evidence that personal effects of the Testator were destroyed prior to the search for the Codicil, there iscertainly evidence of opportunity. As stated above, the evidence suggests that the Codicil was probably in the Testator’s hope chest andwas removed by one of the Cordells, or someone else other than Ms.

Nipshank, with access to the hope chest, sometime before theconclusion of the reading of the Will on June 27, 2010. [114] The evidence suggests that the loss and possible destruction of the Codicil was caused, whether intentionally or unintentionally,by someone other than the Testator and not at her direction. The Testator’s intentions were clear by her bequest of the residue of theestate to Carole Nipshank, her stated intentions to both Ms.

Nipshank and John Logan, her refusal to enter into a co-ownership agreementwith the sisters Cordell and by crossing out a portion of the document seen by Ellen Cordell which spoke of Ms. Nipshank not living onthe farm. The decision to allow Ellen Cordell to build a new house on the property is consistent with a continuing intention of theTestator to grant a life estate in the existing house to Ms. Nipshank. [115] I am persuaded by all of the evidence that it was the nature and character of the Testator to take care of her personal effects.

Itwas in her character to store valuable papers, and she used her hope chest as a safe place to store the papers. [116] Regarding the disposition of property, the Testator allowed Ellen Cordell to build a house on the property and arranged for itsfinancing. This “disposition” may be seen as supporting the terms of the Codicil rather than contradicting them. [117] The standard of proof on this issue is “whether it is or is not probable that the Will should have been destroyed by the Testator”:Sugden at 219.

While this has been described as a heavy onus, I am satisfied on the evidence in this case that the Codicil was notdestroyed by, or on the direction of, the Testator. The presumption of revocation by the Testator has been rebutted on the facts of thiscase. 4. Proof of contents of the Codicil [118] It is not enough to simply establish that a lost Will or Codicil was duly executed, nor is it enough to overcome the presumptionthat it was destroyed by the Testator with the intention of revoking it.

There must also be credible evidence of the contents of the Codicil,or its substance, for the Court to grant probate for it: Sugden at 227.

Post-testamentary statements by the Testator regarding the contentsof a Will or Codicil are admissible, subject of course to the weight to be attached to them: Lefebvre v Major, (SCC),[1930] SCR 252 at 257 to 257. [119] In Re Perry, (ON CA), [1925] 1 DLR 930, [1924] OJ No 122 at para 15 (CA), Middleton J.A. for the Courtconsidered the evidence necessary to prove the contents of a lost Will, adopting the following statement from Taylor on Evidence, 11thed (London: Sweet & Maxwell, 1920), at 327, para 436: The jurisdiction of the Court should be exercised with the greatest possible caution; and the Judge will scarcely feel justified in acting onthe evidence, unless it be of the most cogent and irrefragable character, not only free from suspicion in its sources, but exact and certainin its conclusions . . . [120] In discussing the Sugden case, Middleton J.A. said: 18 ...

The main problem which presented itself to the Court was how far the Court ought to go in accepting evidence resting uponrecollection only, particularly when that recollection is the recollection of one person only, and that person an interested person. The realconclusion of the case was that, once satisfied as to the accuracy of the testamentary intention, as to the honesty of the witness, and the

ability of the witness really to give the substance of the Will, the Court ought to act upon the evidence. To refuse to do so would be to defeat the ends of justice. [ 121 ] It is not simply enough to adduce credible evidence as to some of the contents of the lost Will or Codicil in order to prove the substance of the document.

That is, the Court cannot simply accept evidence as to a portion of the contents and give effect only to that portion, as to do so could well defeat the true intentions of the Testator as might have been reflected in the balance of the Codicil, or possibly, in the Will itself. [ 122 ] In general terms, the 2007 Will included two substantive bequests: the interest of the Testator in the subject property to her two nieces, the sisters Cordell and; the residue of the estate to Ms. Nipshank.

The residue of the estate turned out to be nominal, and this was known following the death of the Testator’s mother on October 12, 2008. As a result, the subject matter of the Will and the Codicil is essentially the subject property. [ 123 ] Ms. Nipshank testified that she was told by the Testator on a number of occasions that she would be given the right to live in the house, free of rent, for the rest of her life. She testified that she was shown a Codicil giving her that right. [ 124 ] Ms. Nipshank’s evidence was corroborated by that of Wendy Fraser.

The Testator had asked her about preparing a Codicil on her computer and she had advised the Testator that a Codicil must be in her own handwriting. She was later shown a document prepared by the Testator in her own handwriting and that document provided that Carole Nipshank could live in the house for the rest of her life, rent free. [ 125 ] Ms. Fraser also indicated that she did notice a reference to the names of Ellen Cordell and Lisa Cordell but she could not recall the context.

The Cordells argue that the contents of the Codicil have been insufficiently proven as the reference to the Cordells may have meant that there were conditions to be imposed upon Ms. Nipshank relating to the Cordells, or there was something else in the Codicil that may have impacted on the life estate given to Ms.

Nipshank. [ 126 ] Ellen Cordell said at the conclusion of the reading of the 2007 Will that she had read something different in a missing document, specifically that part of it had been crossed out and “the crossed out part talked about Carole not living on the farm”. [ 127 ] The evidence of John Logan, while not necessarily supporting the existence of a Codicil, did support the evidence of the intention of the Testator to ensure that Ms.

Nipshank would receive a life estate in the property and was able to live rent free. [ 128 ] I am satisfied that the Codicil was intended to, and did in fact, relate only to the subject property. I am also satisfied that it gave to Carole Nipshank a life estate in the home situate on the property and the one in which she lived for 26 years with the Testator.

The evidence that the names of the sisters Cordell may have been mentioned in the Codicil may simply have related to the fact that Ellen would be living in her new house on the property and Lisa would then be able to move into the old house, subject of course to the life estate interest granted to Carole Nipshank. There is no suggestion by Ms. Nipshank that the sisters Cordell are not entitled to enjoy full ownership rights in the property, subject to the life estate. [ 129 ] A determination as to the contents of a lost or destroyed Codicil requires the fullest and most stringent of evidence: Re Perry .

This does not mean, however, that the standard of proof is anything greater than reasonable probability. It simply requires that the evidence accepted by the Court, be it written or oral, is sufficiently clear and convincing. The evidence in this case satisfies that test. That is, the evidence is both clear and convincing that the Codicil, written and signed by the Testator in her own handwriting, provided for a life estate in the house on the subject property to Carole Nipshank. [ 130 ] I have accepted that the Codicil provided a life estate, rent free, to Ms. Nipshank. The 2003 Will provided that Ms.

Nipshank would be entitled to live in a “mother-in-law suite” constructed in the house for her use and enjoyment. Therefore, it contemplated that she would not have exclusive possession of the entirety of the house. The evidence supports a finding that the Testator’s intention was to grant a similar entitlement through the Codicil, and therefore Ms. Nipshank is entitled to exclusive possession of a suite in the house.

The Testator’s stated intentions always were that Carole Nipshank would be able to continue living in the house “rent free”, but they were never formulated as giving her the right to exclusive possession of the entire house. [ 131 ] In her e-mail response of September 15, 2010 to Mr. Frayne, Ellen Cordell expressed her wish “to be able to improve the house for Carole...” I believe this, too, evidences an understanding by Ellen of the right of Ms. Nipshank to live in a “mother-in-law” suite in the house as originally contemplated in the 2003 Will.

Further, as provided in that Will, and suggested by Ellen’s e-mail, the renovation necessary to build the suite would be paid by the Estate. The cost, of course, must be reasonable. [ 132 ] I also find that “rent free” does not mean without any cost. During the Testator’s lifetime, she and Ms. Nipshank shared monthly expenses and Ms. Nipshank often contributed to other expenses for things required around the farm. Therefore, I find that “rent free” probably meant that the status quo would continue.

A proportionate share of the monthly expenses for the maintenance and upkeep of the house, such as utilities, must be borne by Ms. Nipshank. [ 133 ] Further, there is no evidence to suggest that anyone in addition to or other than Ms. Nipshank was to receive a life estate and therefore she is the only person who is entitled to live rent free in the premises. 5. Conclusion on existence of Codicil and its contents [ 134 ] In her 2007 Will, the Testator removed Carole Nipshank as the beneficiary of a life estate. She did, however, intend to provide security or support for Ms.

Nipshank by leaving her the residue of her Estate. At that time, she expected the residue to be significant as she stood to inherit, from her mother’s estate, cash and shares of significant value. That part of her inheritance would then form the residue in her own estate and would be available for Ms. Nipshank on her death. [ 135 ] By late 2008, the Testator knew that her mother’s estate did not have the value she had anticipated to ensure the support and security required by Ms. Nipshank. As a consequence, the Testator prepared and signed, in her own handwriting, a Codicil to her 2007

Will whereby she again provided to Ms. Nipshank a life estate in the house that they had shared for 26 years. [ 136 ] After preparing the Codicil, the Testator placed it with her personal belongings, likely in her hope chest. Those personal belongings (likely with the hope chest) were taken from her bedroom sometime after her death and before the reading of the Will.

The Codicil has never been found. [ 137 ] The intentions expressed by the Testator on numerous occasions to Carole Nipshank and John Logan as well as her actions in not proceeding with the co-ownership agreement of the property with the sisters Cordell and in allowing Ellen Cordell to build a separate house on the subject property all support or are consistent with her continued intention to provide accommodation for Ms. Nipshank.

The Codicil was not destroyed by the Testator with the intention of her revoking it. [ 138 ] I am satisfied that the Codicil dealt solely with the land and that it provided a life estate in a “mother-in-law suite” in the house to Ms. Nipshank. There is no evidence to suggest that it otherwise affected the interest of the sisters Cordell in the property. VI.

Conclusion [ 139 ] In conclusion, I find that Carole Nipshank is not prohibited from now claiming a life estate in the house on the subject property although she did not advance this claim until 4½ years after the Testator’s death and after she had obtained a Grant of Administration as the PR of the Estate. [ 140 ] I am satisfied that sometime after the Testator executed her 2007 Will, she prepared and signed a handwritten Codicil to the Will.

In it, she provided a life estate to Carole Nipshank in a “mother-in-law suite” in the house the two had shared for 26 years prior to her death. [ 141 ] Accordingly, I exercise my discretion to set aside the Grant of Administration only to the extent of recognizing a life estate to Carole Nipshank in a “mother-in-law suite” in the house on the subject property. Reasonable renovation costs necessary to complete or create a “mother-in-law suite” are to be paid by the Estate. [ 142 ] The Application by the sisters Cordell for an order discharging the Caveat is dismissed.

The Application by Carole Nipshank for a declaration of a life estate on the subject property is granted. VII. Costs [ 143 ] Counsel can speak to costs within release of 30 days of the judgment. Heard on the 7 th day of January and 14 th , 15 th and 16 th days of March, 2016. Dated at the City of Edmonton, Alberta this 14 th day of April, 2016. Eric F. Macklin J.C.Q.B.A. Appearances: Matthew A. Pruski and Stephanie Bachelet of Rackel Belzil LLP for the Applicants Dennis G. Groh, Q.C.

of Heil and Groh for the Respondent