Czajkowski v Czajkowski, 2016 ABQB 242

Court of Queen ’ s Bench of Alberta Citation: Czajkowski v Czajkowski, 2016 ABQB 242 Date: 20160428 Docket: 0403 23224 Registry: Edmonton Between: Gary Czajkowski and David Czajkowski Plaintiff - and - Donald Czajkowski Defendant _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice S.D. Hillier _______________________________________________________ Introduction [ 1 ] Mildred and William Czajkowski raised four sons: Donald (the oldest), Edward, David and Gary.

Mildred passed away on June 27, 2004 at the age of 79. [ 2 ] David and Gary filed claims against their brother Donald for a share in their mother’s estate.

They allege that Mildred was not of sound mind in the years leading up to her death and that Donald exerted undue influence and pressure on her: a. to execute an Enduring Power of Attorney and Personal Directive, dated March 30, 2001, in favour of Donald; b. to transfer her home into joint names with Donald on title in December 2001; and c. to change her Will in December 2001, excluding the two Plaintiffs for alleged discourtesy and a lack of forthrightness. [ 3 ] Donald denied any impropriety or undue influence in the decisions made by their mother and asserted that she was competent to make those decisions.

Donald himself passed away in April 2009 and his estate maintains the position that his conduct and care for Mildred was in her best interests, and was not in the least coercive or otherwise actionable. Background

[ 4 ] Although an inordinate amount of documentation was filed by agreement at the outset of the trial, it will only be necessary to refer to a limited amount of material as relates to the validity of the Will under challenge, and the financial circumstances prior to Mildred’s death. [ 5 ] From all the evidence, it is hard to measure the true level of personal acrimony, much less its origins which were likely multi-factorial.

What is clear is that more than a decade of litigation has only entrenched the mistrust that inspired a cloud of reciprocal cynicism within what otherwise appears to have been a hard working family. [ 6 ] Edward passed away in November1999 without a Will. By family agreement, David applied and was appointed as Administrator of Edward’s estate in June 2000. [ 7 ] The father, William, had been in a nursing home and passed away in July 2000.

There is no controversy as relates to his estate. [ 8 ] However, Donald did counterclaim against the brother David in respect of David’s administration as the Personal Representative of Edward’s estate, dating from July 2000. [ 9 ] Although Donald’s counterclaim was withdrawn by consent on January 30, 2015, nearly six years after Donald passed away, the handling of Edward’s estate was a matter of prolonged dispute. This conflict will need to be reviewed in the context of problems which arose between David and Mildred.

The legal machinations over Edward’s estate were not resolved until April 2004, just over two months before Mildred passed away, all of which appears to have affected Mildred’s decision to exclude David and Gary from her will. [ 10 ] As well, Mildred lost a step-sister whose estate was administered by Gary. He was in B.C. where his aunt resided. It was a small but complicated estate with over 20 beneficiaries. Nothing in the materials suggests that Gary’s involvement was a problem, but it is unclear whether the time taken to close that disposition may have frustrated Mildred to some extent.

Edward’s Estate [ 11 ] Edward died November 22, 1999 without a Will, nor any spouse or dependants. Since both his parents were alive at that time, they were the sole residual beneficiaries. When the father William passed away in July 2000, Mildred inherited his portion of Edward’s as yet unresolved estate. [ 12 ] Although David was acknowledged as the Administrator of the Estate, all three siblings assisted in organizing the assets and liabilities and paying off some of the debts. Their expenses, some of which were also incurred by Mildred, were eventually reimbursed.

The initial NC7 showed an estimated net estate value of slightly over $42,000, but there were many financial adjustments which took considerable time and money to sort out. [ 13 ] The estate was primarily composed of the following property: a. a cabin in Caroline, AB which eventually sold in June 2000, with net proceeds of about $16,000 held in the trust account of the lawyer for the estate, Robert Mackinnon (MacKinnon); b. a property in Canim Lake, BC which again took time to sell.

As Administrator, David transferred it to Mildred by July 23, 2003 (Exh 1, Tab 26); Donald then listed the land for sale in September 2003 for $15,000 and it sold in May 2004, with net proceeds of about $11,000 paid to Mildred; c. an RSP account in Edward’s name worth $1,100 also transferred to the account with Mackinnon; and d. a ski-doo initially valued at $4,000, but sold for $300. [ 14 ] In addition there were two non-estate assets with assigned beneficiaries: a. a Canada Life Insurance policy for $50,000 designating David as beneficiary; and b.

RRSPs with Wealth Creator totalling $49,000 plus interest designating Donald as beneficiary. [ 15 ] The brothers only became aware of these assets after Edward died. [ 16 ] The major Estate expenditures included: a. funeral costs, bills and overdrafts totalling about $10,500; b. a claim by CRA for unpaid taxes in excess of $29,000; c. property taxes on the Caroline property of about $1970; and d. monies also owing on the B.C. lands of about $2,000. [ 17 ] Absent agreement between all beneficiaries: a. the Life Insurance was payable to David only as designated beneficiary without going through the estate; b. the RRSP’s were payable to Donald only as designated beneficiary without going through the estate;

c. all residual assets were payable at law to Mildred (after William died). [ 18 ] Everyone seemed to recognize the problem, at least initially, that the estate had no money to pay bills, settle with CRA, and protect the B.C. property from forfeiture. So the insurance and RRSP proceeds were pooled in an Alberta Treasury Branch account by David and Donald. As the lawyer for the estate, Mackinnon also set up a trust account to hold estate funds.

Both these accounts appear to have been accessed to cover estate debts. [ 19 ] According to David’s testimony, corroborated by Gary, they also agreed to disburse $16,000 to each of the brothers. The idea was that Mildred would get all the residual value on the estate assets once the accounting was done. Cheques were issued to each of the brothers in December 2000.

However, there were delays in getting the properties either sold or into the name of Mildred which may have affected her patience level and trust. [ 20 ] David stated that he explained the arrangement more than once to his mother and specifically brought over all the papers for her to review in January 2002. His description of the exchange with Mildred was rather contradictory: he alleged she was satisfied, he described her as “happy”, but at one point she started to cry. He responded to her by suggesting that she retain a lawyer if she did not trust him.

She did hire Richard Garside (Garside) who represented her interests in Edward’s estate over the next 29 months. [ 21 ] Part of Mildred’s unhappiness apparently related to her desire to know what had happened to a 1979 Pontiac, worth perhaps $500. Three different versions arose during the trial: David may have given it to the Kidney Foundation, or to the Red Cross or to a wrecker because it had a burned out motor.

It matters not what really occurred, because those differing versions provide a basis for Mildred’s confusion. [ 22 ] Another problem related to a claim for repayment on an amount of $3,200 which Mildred and William loaned to Edward to buy the skidoo. There was apparently no loan documentation, but David did eventually direct full payment of that amount to Mildred. [ 23 ] An issue also arose over the disposition of a boat, motor and trailer that was to go to Mildred. It is not necessary to sort out the explanation for having to move it and how it ended up in Donald’s garage again.

It is sufficient to note that Mildred was confused and concerned. [ 24 ] Interestingly, neither the ski-doo nor the Pontiac is listed in an undated fully detailed inventory which may have been provided to Canada Revenue Agency. Mildred’s Testamentary Documents [ 25 ] Mildred executed the following documents (Exh l, Tabs 18-24) : a. Enduring Power of Attorney appointing Donald, dated March 30, 2001; b. Personal Directive appointing Donald, dated March 30, 2001; c. Last Will dated December 19, 2001; d. Option to Purchase dated December 19, 2001; e.

Transfer of Land relating to her residence, dated December 19, 2001; f. Caveat dated December 19, 2001. [ 26 ] Mildred had previously executed a Will dated April 8, 1983 which appointed her husband William as executor if he survived her. In default, Edward and David were to act as co-executors. The residue of her estate was to be divided up equally among the sons. It seems the sons were all aware of the terms of the 1983 Will. [ 27 ] However, Gary and David did not know until after Mildred’s death that she had signed the new Will dated December 19, 2001.

It was prepared by Garside who witnessed it along with his assistant Loreen Airey (Airey). [ 28 ] In

summary, the 2001 Will provides that: a. Donald is appointed as Executor and Trustee; b. personal effects are to go to grandchildren and great grandchildren in the discretion of the Trustee; c. the residue of the estate is to go to Donald. [ 29 ] Clause 4(

e) provides: I have bequeathed the residue of my estate to my son Donald Czajkowski to the exclusion of my sons David Czajkowski of Edmonton, Alberta and Gary Czajkowski of Kamloops, British Columbia as a result of discourteous conduct towards me by them, and David’s failing to be forthright with me in the handling of the estate of my son, Edward Harvey Czajkowski. [ 30 ] Since this is the Will that is challenged with allegations of undue influence, it will be important to carefully review Garside and Airey’s testimony. [ 31 ] The Plaintiffs challenged two other documents, not so much seeking to have them reversed, but as evidence of undue

influence: a. the March 30, 2001 Enduring Power of Attorney and Personal Directive appointing Donald (collectively the “Powers”); and b. the December 2001 transfer of title to Mildred’s home into joint ownership with Donald. [ 32 ] Garside was similarly involved in preparation and signing of these materials, so it will be important to weigh his account of how those arose, the instructions he received and his response to the questions put to him on cross examination.

Counsel for Mildred [ 33 ] Garside was initially contacted by Donald in March 2001 to assist Mildred to prepare certain documents because she had recently been hospitalized. The Powers were signed by Mildred in Garside’s presence with no one else in attendance. He signed the Certificate of Legal Advice and was satisfied she understood the effects of the documents. Asked about due diligence before Mildred signed, Garside said he was satisfied as to her capacity from his conversation and her input to the discussion with him, one-on-one.

He said she was aware of her surroundings, was competent, and exercised her free will to sign the papers which he presented and explained. [ 34 ] Garside met with Mildred again on November 6, 2001 at her home to take instructions to prepare a new Will. He told Donald to leave the house, which he did. Mildred looked bright, alert and remembered him from their previous meeting. Referring at times to six pages of notes taken during their meeting, Garside recalled that Mildred wanted a simple will with Donald as executor and property owner. She told him her son died in 1999 and her husband in 2000.

With David as executor for Edward she did not know what was going on and what was being disposed of. She referred to the brother of David’s wife sticking his nose into everything, and loading everything onto a cattle trailer. As the beneficiary, Mildred felt there was no communication and there were no receipts. Gary was siding with David, so Donald was the only supportive one. [ 35 ] According to Garside’s notes, Mildred reported in this meeting that Donald had earlier told her it was up to her to do what was best while she still had the strength.

Garside understood from what Mildred told him that the family had all agreed about Edward’s estate at first but then there was jealousy and alienation - especially since she gave Donald her power of attorney. She mentioned the boat and trailer, the Pontiac and a lack of accounting; she wanted to take David to court about the estate. She had not received a penny yet and could not get David to give her any information.

She inferred that something was going on. [ 36 ] Mildred wanted to have the house title transferred to Donald, but Garside gave advice that she should protect her interest in joint tenancy, even though she explained how Donald had helped her and his dad quite a bit for a long time. The interview was long, Mildred was aware of the circumstances of her estate, and Garside said he was secure in understanding that she was doing this voluntarily and was not influenced by Donald. He prepared the Will as requested.

He also did up a transfer into joint tenancy, but with an option for Mildred to buy back and a caveat to protect her beneficial interest. [ 37 ] Garside returned to Mildred’s home on December 19, 2001 with his assistant Airey to sign the Will. He explained the wording relating to her decision to disinherit David and Gary. She confirmed that the wording was exactly what she wanted and repeated that David had not provided her with any information regarding Edward’s estate in two years. Mildred also gave the name of Gary’s son as the alternate executor; this was inserted by hand.

As instructed, Garside had prepared the Will on the basis that if Donald predeceased Mildred, then all her grandchildren would share the estate equally. Garside prepared a memo of the meeting the same day. This was not his standard practice, but he does it as a matter of prudence where some of a client’s children are being disinherited. [ 38 ] By Garside’s description, Mildred was a wonderful lady; she was cheerful and pleasant with him; she was lucid and gave her own instructions. I noted during the trial that the witness was very clear and confident in making those comments.

Garside was not challenged on his observations, except to the extent that it was suggested to him that Mildred’s ideas may have come from Donald, which suggestion he rejected. [ 39 ] Airey prepared a memo of the meeting and noted Mildred’s reaction to clause 4(

e) as being: “Exactly! There has been no communication about the estate. When I try to talk to him (David) he gets up and walks out of the house”. To Mildred, the wording covered the reasons why she was doing what she was doing. In her oral evidence, Airey said Mildred was very definitive and emphatic about this wording and was good to have Garside go to the next clause. [ 40 ] Airey prepared the memo right after the meeting at Garside’s request. It was to be placed on the file, but was not shown to Garside.

In addition to the points referred to, Airey recorded that “(Mildred)...was very chatty, alert and on top of her game when we were there. She completely understood why we were there, she strongly indicated that (Garside) had done the paperwork the way she wanted and that she was happy that it was done. She went so far as to tease (Garside) about his signature and whether anyone could read it. Although not in her notes, Airey recalled that she spoke up to say that all of Garside’s writing is like his signature. [ 41 ] The cross examination of Garside was thorough.

He acknowledged that Donald phoned him first before both the March and November meetings, but he made sure that he met with Mildred alone to be certain that he had her instructions as his client. His handwritten notes from a call with Donald on October 22, 2001 do record that the two brothers treat Mildred “poorly”. However, Garside acted on what he actually heard from Mildred, not that vague note.

He agreed that the terms in his notes with Mildred about jealousy and alienation, after the brothers were told that Donald was given the power of attorney, may have been his own words interpreting what Mildred was saying. [ 42 ] Mildred’s health was not reviewed specifically, but Garside was satisfied that she was mentally competent, and nothing suggested that any medications affected her thinking. He knew she had been in the hospital, but he continued to act as her lawyer for two more years dealing with issues regarding Edward’s estate, and he had no concerns during that time.

She understood his reports and gave proper instructions. This is supported by the letters on his file.

[ 43 ] Garside acknowledged that he had acted previously for Donald a few years earlier on a family matter, but he stated that he made it clear that he was acting for Mildred and told Donald that he should retain independent counsel regarding the Caveat and signing a transfer back to be held in trust. Donald declined to consult another lawyer, but signed later and separately from Mildred. [ 44 ] Plaintiffs’ counsel placed significant emphasis upon one handwritten entry from Garside’s notes of November 6, 2001 (p. 010688) dealing with the boat and trailer: “...

David wants to keep in family”; and then on the next line: “Don said”. The inference sought was that, if Mildred was relying on what Donald said on this topic, then he might have been providing other information on which she was relying. Garside denied that

interpretation. He stated that Mildred was aware of other aspects about the boat and trailer that were not information that was attributed to Donald at all. [ 45 ] As for Mildred taking suggestions from Donald, Garside stated that from what he observed, Donald simply said she should do what was best for her. Certainly, without input from Donald, she approved Garside’s recommendation for the Caveat to protect her right to repurchase. There is no doubt that was best for her.

Garside explained the reason Mildred signed twice was because she was acting as an owner but also as a beneficiary on the Option to re-purchase. Donald signed the documents separately from his mother. [ 46 ] Asked how he concluded that Mildred was aware and doing what she wanted, Garside noted that his first meeting was lengthy (over an hour). He knew she had a prior Will. He did not talk with her about testamentary capacity as a concept, but did cover the nature and effect of signing a Will.

Specifically, he discussed that it was a legal document, it disposed of property and that she was disinheriting two of her children. [ 47 ] At the December meeting with his assistant as witness, Garside went through the Will clause by clause to make sure Mildred knew what she was doing. They did not discuss intestacy (although I note that she would have some experience with the topic, given that Edward had died without a Will).

Garside was confident that there was no perversion of natural faculties based on her understanding and the instructions he took from the November meeting, and in particular that she was able to explain her reasons for what she was doing. He was sure that Mildred was doing this of her own free will based on the information she conveyed to him. [ 48 ] On December 20, 2001, Garside sent a reporting letter to Mildred stating in part: I further confirm that it is your intention not to provide any of your estate to either of your sons, David or Gary.

You advised me that David has treated you inconsiderately and has failed to keep you informed with respect to the administration of your son Edward. Your son Gary has either sided with David or been unsupportive of you in your efforts to deal with David in the execution of Edward’s estate. I further confirm your description that Edward and Donald have consistently cared for you and your late husband for many years, and have been a tremendous support to you.

David and Gary have not been supportive of you or cared for you to the same extent. [ 49 ] On Mildred’s instructions, Garside wrote to Mackinnon on February 4, 2002 to express concern about the proper handling of Edward’s estate and to request an accounting. There is no need to set out the full chronology of that file.

Regrettably, it included some misinformation from Mackinnon in three different letters: a. a gross overstatement of the amount of property tax paid by the brothers; b. that Mildred wanted to gift the BC property to the three sons; and c. that Mildred was getting more than she was entitled to. [ 50 ] David indicated that he was not consulted by Mackinnon before those letters were sent. But he was copied and did not have correction letters issued. He simply wanted a four-way meeting.

As earlier noted, the matter was settled two years later, just before Mildred passed away. [ 51 ] Garside confirmed that he went to Mildred’s funeral, but he did not recall if he was present to discuss the Will with the brothers. He thought he read the obituary and remembered showing it to his wife. He went to pay his respects to a nice lady. Mildred’s Health [ 52 ] Mildred continued to reside in her own home after William died, except for a three month period from November 2000 to January 2001 when she tried living in a seniors lodge.

That did not work out too well, as it was expensive and she did not get along with some of the residents. [ 53 ] Mildred’s medical records show a history of medications for diabetes, thyroid and back pain due to a thoracic compression fracture. There is charting of one missed appointment due to mobility issues. She also had a history of respiratory problems, having smoked for over 50 years until 1985. [ 54 ] Mildred was hospitalized a few times between November 2000 and November 2001. On March 4, 2001, she was admitted with concerns about congestive heart failure as well as ongoing problems with back pain.

She was discharged on March 16, 2001 on pain medications. The charts indicate various treatments for long standing diabetes, osteoporosis, obesity and latterly a pulmonary fibrosis. [ 55 ] According to the testimony of Nancy Steward, (Steward), a home care nurse manager, Mildred was able to function in her own home from March 2001 until shortly before her death in June 2004. The nurse would visit once or twice a month depending on the circumstances. She described Mildred as a worrier who was needy but wanted to remain in her own home. In a letter dated December 22, 2004, Steward wrote of Mildred that: “...

Her competency was evidenced by her ability to manage quite a complicated medication regime of insulin, oral medications and inhalants”. [ 56 ] In cross examination, Steward acknowledged her letter was prepared at the request of Donald and that Mildred’s charted missing of an insulin dosage was important. However, she noted that Mildred never left the stove on or things of that sort as might raise

safety concerns about memory lapses. Steward had no recollection of any mental health testing. [ 57 ] David testified that his mother was extremely depressed and often cried, although he did not know if she was actually ill. He knew she took insulin and some pain medications. He described that she was forgetful and needed to have things repeated. He never alleged or even hinted that Donald restricted him from seeing Mildred. David confirmed that Donald spent more time doing errands, taking her to appointments and visiting during the week because of his work schedule.

David’s visits were usually on the week end. [ 58 ] Charts from 2000 indicate that Mildred was still grieving from the death of her son and her sister, but was alert and oriented. There are no charts of diagnosis or treatment for depression even after the death of her husband. [ 59 ] The last record from her physician, Dr. E. Holmes, dated May 31, 2004 returned the renewal form unsigned to the oxygen service provider with a note that the patient was in the hospital and was not likely returning home.

Witnesses [ 60 ] In addition to David, Gary testified that he was surprised that they were both disinherited as he was unaware of the 2001 Will until after the funeral. His recall was not that Garside told them this, but that Donald told him privately. Gary did not have anything to do with Edward’s estate, but did explain the circumstances of his handling of the estate of Mildred’s step-sister which took months to distribute $50,000 among 24 beneficiaries . He explained it to Mildred six or seven times, but he was unsure if she had problems understanding or simply forgot.

She would often change the subject, so he said that he would just listen and be courteous. As to being disinherited for misbehaviour, he kept wondering if he was loud or said something wrong; he just could not figure it out. [ 61 ] Gary did not think that Donald treated his brothers differently after his father passed away; they all treated each other with respect. To the best of Gary’s knowledge, Donald never misrepresented information to him or to Mildred. [ 62 ] Donald’s son, Ryan Czajkowski, testified about the alienation of his father that led to divorce. Ryan testified that he eventually got over it.

He said it was troubling that his grandmother did not have a clue who he was, but pretended that she did. Ryan testified that his mom related a comment that Donald said he was “going to fix Uncle Dave’s little red wagon”. Defence did not object to this attribution, but I place absolutely no reliance on it. It is double hearsay alleged against a former spouse, it lacks context, it is uncorroborated as to animosity between the brothers, and Donald is no longer alive to comment on its accuracy or the context in which it was said.

David and Gary’s evidence was that the brothers got along. [ 63 ] Donald’s widow and litigation representative, Jessie Czajkowski, testified that the brothers were not close with Donald, but that is a far cry from animosity. She sometimes visited with Mildred when Donald was there, and would occasionally do some light housekeeping, but she mainly gave companionship. She recalled one instance when David came to Mildred’s home with a stack of papers which he put down, but they fell from Mildred’s lap so Jessie helped to pick them up. She then numbered over 70 pages about Edward’s estate.

She was not sure when this happened, but she testified that Mildred looked a bit shaky and upset. Asked about Mildred’s memory, she responded that Mildred loved to tell stories of when she was young but they did not talk about estate matters during these weekly visits. Issue [ 64 ] The central issue is whether the Plaintiffs have established the invalidity of the 2001 Will based on a lack of capacity and/or undue influence. This engages considerations of the entire circumstances to be measured against the burden of proof in such cases.

Positions [ 65 ] The Plaintiffs argue that the 1983 Will should govern, under which the sons would share equally in their mother’s estate. They allege that the 2001 Will is tainted by the written materials including: a. the Powers executed in March 2001; b.

Garside’s notes of two calls with Donald which amount to instructions, and an attribution by Mildred that she relied on information that Donald provided to her; c. the medical records; d. the memos and letters written at the request of Donald or Garside; and e. the transfer of insurance and RSP monies into a common pot as evidence that everyone was cooperating to cover expenses and divide Edward’s assets. [ 66 ] The Plaintiffs submit that the oral evidence of Garside and Airey raises a suspicion, which the Defendant cannot overcome, that Donald informed and set in place the changes to Mildred’s estate planning.

This is reinforced by Steward’s concern about Mildred forgetting an insulin shot and Ryan’s testimony that Mildred did not remember him. Overall, Garside simply did not exercise the required due diligence to assess Mildred’s testamentary capacity. [ 67 ] The Defendant responds that Mildred’s capacity to instruct is clear on all the evidence. The 2001 Will was properly reviewed by legal counsel with the client and then executed along with the property transfer that protected Mildred’s best interests. Garside acted on clear instructions taken alone.

[68] Alternatively, to the extent that the Plaintiffs have raised any suspicious circumstances, Garside’s evidence is entirely reliable.Mildred’s reasons as expressed in the will are objectively rational.

David’s evidence that his mother was happy with his handling andexplanation of Edward’s estate is totally contradicted by the two years of legal wrangling after David suggested that Mildred get alawyer. [69] The Defendant argues that Mildred was not obliged to justify her disposition, but the 2001 Will does explain why thePlaintiffs were excluded and she approved the wording that derived from a lengthy consultation. There is nothing to support that anymedical issues impeded Mildred from instructing counsel, or that she was unduly influenced by Donald or in the least coerced to do otherthan what she wanted to do.

Law [70] The law on testamentary capacity and undue influence has been well settled since at least the decision in Vout v Hay, (SCC), [1995] 2 SCR 876, [1995] SCJ No 58. Once a will is shown to have been duly executed with requisite formalities,including that the terms were fully reviewed and understood, then a testator is presumed to know and approve of the contents withnecessary testamentary capacity: Vout at para 26. [71] Where suspicious circumstances are alleged, those attacking the will must point to “some evidence which, if accepted, wouldtend to negative knowledge and approval or testamentary capacity”.

Suspicious circumstances may arise in three contexts: a. in the preparation of the will; b. where the capacity of the testator is questioned; or c. where evidence tends to show the free will of the testator was overborne by acts of coercion or fraud. [72] Upon proof of suspicious circumstances, the onus reverts to the propounder, again to establish knowledge, approval andcapacity: Vout at para 27.

However, that does not vary the burden to establish fraud or undue influence; that burden remains with theattackers, to enable the court to conclude that the wording of the will does not reflect what the testator intended or meant to express. [73] The test for testamentary capacity as enunciated in Banks v Goodfellow (1870) [1861-73] All ER Rep 47 (Eng QB) wasrestated in Schwartz v Schwartz, (ON CA), [1970] 2 OR 61, [1970] OJ No 1438 (CA), aff’d (SCC),[1972] SCR 150, [1971] SCJ No 96 and quoted with approval in various decisions of the Alberta courts: The Testator must be sufficiently clear in his understanding and memory to know, on his own, and in a general way: i. the nature and extent of his property ii. the persons who are the natural objects of his bounty, and iii. the testamentary provisions he is making and he must moreover be capable of: iv. appreciating these factors in relation to each other, and v. forming an orderly desire as to the disposition of his property.

Analysis [74] This is not a case that calls out for strict analysis of burdens or presumptions. By any measure, the evidence clearly establishesthat Mildred had testamentary capacity. [75] On the medical evidence, her diabetes, back pain, heart and other conditions did at times require hospitalization. However, herhealth issues did not in the least impede her ability to understand her property rights and take steps to organize her affairs as she saw fit.In March 2001, Mildred took steps to document the transfer of Powers to Donald but there is no evidence he ever took any actionspursuant to those Powers.

Mildred went on to live another three more years. [76] It is acknowledged that her medical records do not show much except that she was hospitalized at times, took pain medicationand missed an appointment. From the hundreds of pages of health records, the Plaintiffs point to a single instance where Mildred missedan appointment. It was a “walk test” set in December 2001 following a foot injury. The evidence is that she was unable to attend becauseof her gout.

It had nothing to do with memory or any mental capacity. [77] Steward was Mildred’s home care nurse for 3½ years after she returned to her home from the seniors lodge. The fact thatDonald asked Steward to write a letter does not undermine the independence of her assessment in December 2004, previously noted, thatMildred was capable of expressing her needs and making her own decisions regarding her health.

Steward opined that her competencywas evidenced by her ability to manage quite a complicated medication regime with only one instance where Mildred missed an insulininjection. [78] As for depression, it is not hard to identify Mildred’s tragic losses from 1999 and 2000: Edward, her step-sister and thenWilliam. However, there is no evidence of any diagnosis, much less treatment, for depression. I find as a fact that there was no such

impairment at the time she instructed counsel or when she signed the Will and the property transfer into joint tenancy. [ 79 ] David said Mildred had memory problems and that he had to review the estate with her more than a few times. So did Gary. Ryan was concerned that she did not remember him. Jessie said Mildred had no memory issues but her examples of stories from the past were not compelling. I accept on the evidence that Mildred did not always remember things.

However, that is not at all the same as a lack of testamentary capacity. [ 80 ] Absolutely nothing about Mildred’s medical circumstances undermines her mental awareness. [ 81 ] The evidence of testamentary capacity must be measured primarily at the time of instructions and at the time of execution of the Will. As a backdrop, it is important to note that Mildred had an earlier Will for nearly 18 years which would have distributed her estate equally among her sons. She then had the experience of administering three estates of close family members, only one of which was uneventful.

She signed the Powers six months before she spoke with Garside about a new Will. Donald called Garside first, both in relation to the Powers and again about the Will. Garside had acted for Donald previously on an unrelated matter. So there is some evidence which could arguably give rise to suspicion. [ 82 ] Those circumstances inform the Court’s review of the evidence of Garside, together with what Airey observed, and the context of Donald’s role.

I find Donald’s initial phone call to Garside while his mother was in hospital was a benign choice of someone Donald knew and could trust, but who was no longer acting on his behalf. [ 83 ] I listened carefully to the cross examination of Garside as to how he determined Mildred’s free will in the fall of 2001. I find his testimony to be reliable.

Specifically, I find that she knew what she was doing and was under no duress in the sense that she was able to explain her intention and that the effect of a power of attorney would give Donald authority to handle her financial, health and other personal affairs, which is what she wanted at the time. [ 84 ] The October 2001 phone call from Donald does note that “2 brothers treat mom poorly” but Garside was very clear in his evidence that the instructions for preparation of a new Will came from his meeting with Mildred only. A letter to David in December 2001 confirms that point.

He did not, as suggested in cross examination, ask her if David and Gary were treating her poorly. Rather, he asked her why she was not including them in her Will. She gave her reasons as a client and he was satisfied that Mildred was acting of her own free will. He did not find it necessary or appropriate to weigh whether he found those reasons were morally compelling to him as to justify what she was doing.

If there had been no reasons given to treat the brothers differently, that would have raised questions for him. [ 85 ] The law has long recognized that it is important to respect and not lightly deprive individuals of their right to dispose of their own property: Babichuk v Kutz , 2006 ABQB 422 at para 240 , [2006] AJ No 1173. [ 86 ] Garside did not restrict his due diligence to the November meeting from which he obtained instructions. He drafted her reasons right into the text of the Will and reviewed that wording with Mildred. She reacted by saying that it was exactly what she wanted.

This was captured by memos from both Garside and Airey. [ 87 ] As for the transfer to joint tenancy, Garside did not simply prepare a transfer. He very clearly protected Mildred’s right to change her mind by preparing the option to transfer back as an interest to be protected by caveat. As well, he held a signed transfer back in trust. Garside saw all of this as being part of Mildred’s estate planning. While the ideas did not come from the client, Garside was clearly acting in her best interests and she agreed with his advice. [ 88 ] The Court is hard pressed to conjure up what more can be required.

The likelihood that Donald returned to the house after Mildred had met again with Garside and signed is of no significance. Garside’s failure to recall Donald’s re-attendance does not undermine his credibility. If anything, it shows that he and Airey did not collaborate or review each other’s memos in preparing their own record of what occurred. I also attach limited significance to the comment attributed to Donald by Airey that: “When we were leaving Don indicated that he wouldn’t have a happy brother, and she (Mildred) indicated that that was too bad because of the way he had behaved”.

Donald had been aware of what Mildred wanted to do since at least October 2001. Mildred’s response reflected her strong, perhaps feisty views. [ 89 ] Overall, I am fully satisfied that Mildred was aware of her property and decided to deal separately with the house in a way that her lawyer was able to protect a life interest. She was totally alert to the fact that her sons would inherit under the terms of her earlier Will, and she took steps to vary her earlier intentions with clear instructions. Her lawyer spent time with her alone and then drafted wording for her approval.

She reviewed the language in the presence of Garside and Airey only, and she expressed that it was exactly what she wanted in the orderly disposition of her estate. [ 90 ] There is nothing suspicious about the preparation of the Will, placed in the context of two years during which Mildred had been troubled about the handling of Edward’s estate. It is not for this Court to determine whether her concerns were justified, or whether in fact David had done anything wrong. [ 91 ] At a minimum, David misread the signals from his mother.

Even assuming she agreed that the boys receive a $16,000 distribution in December 2000, David should reasonably have known by January 2002 that his aging mother was becoming frustrated. [ 92 ] It is noteworthy that David’s advice for Mildred to get a lawyer arose two months after she had already given instructions to change her Will. In his testimony, David seemed to blame Garside after Mildred’s funeral, suggesting that if he had simply told them about the change in Will, none of this would have happened.

Again assuming that actually occurred - which neither Garside or Gary could verify - it is profoundly unclear what that even meant in terms of how it might have changed matters: a. Garside was ethically obliged not to disclose solicitor-client privilege without Mildred’s consent; b. disclosure would have exposed his client to lobbying by the sons for her to change her mind;

c. Mildred told Garside that David and Gary knew about the transfer of Powers; any further disclosures properly remained at the discretion of the client. Undue Influence [ 93 ] Plaintiffs’ counsel does not argue that the evidence would support any finding of undue influence, in the sense of coercion or fraud. Factors which speak most clearly against any basis for undue influence include the following: a. David does not even hint that Donald restricted regular access to his mother, whom he saw as his

schedule permitted; b. according to David’s own evidence, when he showed everything to Mildred, Donald endorsed that it was all fine; c. there is nothing to suggest that Donald ever took any steps under the Powers granted in March 2001; d. the evidence is clear that Mildred was sufficiently motivated to retain counsel to represent her interests in Edward’s estate, which placed the cash distribution to all three sons under scrutiny; e. while David and Donald pooled assets in their names from outside of Edward’s estate to cover debts and support the arrangement to share with Mildred as the sole legal beneficiary of Edward’s estate, Gary contributed nothing to justify payment ahead of his mother; f. there was a basis for Mildred to become frustrated with Edward’s estate, as it did take an inordinate time to get CRA clearance and to dispose of the two properties after taxes were paid. [ 94 ] None of these points are findings of fault against David or Gary.

The evidence simply does not support any basis to conclude that Donald exerted undue influence. Conclusion [ 95 ] David and Gary may legitimately feel that their mother treated them unfairly. It may be that Mildred had unrealistic expectations in relation to the administration of the other estates, in particular Edward’s estate. However, it was up to the sons to communicate and manage those expectations. The role of the Court is not to weigh the merit of competing

interpretations of behaviours. [ 96 ] In short, there is nothing to speak against the validity of the 2001 Will as an enforceable testamentary disposition. No accounting for Mildred’s estate is required. [ 97 ] The Court also confirms the transfer of 11326 - 58 Street Edmonton Ab T5W 3W6 (Plan 707HW, Block 20, Lot 7 excepting thereout all mines and minerals) as originally made. Costs [ 98 ] At the request of the parties, the Court reserves jurisdiction to deal with costs.

If the parties are unable to resolve the matter within 45 days of this decision, they are entitled to make arrangements to set out their positions to obtain a ruling. Heard on the 16 th , 17 th and 18 th days of March 2016. Dated at the City of Edmonton, Alberta this 28 day of April, 2016. S.D. Hillier J.C.Q.B.A.

Appearances: Pierre Asselin Durocher Simpson for the Plaintiffs Bruce Murray Russel Horne Murray Chillibeck & Horne for the Defendant