Goold Estate (Re), 2016 ABQB 303

Court of Queen ’ s Bench of Alberta Citation: Goold Estate (Re), 2016 ABQB 303 Date: 20160526 Docket: ES12 35733 Registry: Wetaskiwin Court File Number ES12 35733 Court Court of Queen’s Bench of Alberta (Surrogate Matter) Judicial Centre Wetaskiwin Estate Name Eleanor Marie Goold Applicant (Plaintiff) Estate of Eleanor Marie Goold Respondent (Defendant) Carol Ashton and Richard Ashton _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice D.A.

Yungwirth _______________________________________________________ Introduction [ 1 ] This case is about whether or not the Holograph Will prepared by Eleanor Goold in 2006 should be used as the basis for the probate of her estate, or alternatively, whether the Will was revoked, in which case the administration of her estate should proceed on the basis of intestacy. [ 2 ] After a diligent search for the original Holograph Will dated May 27, 2006, it has not been located. A photocopy of that Will

has been produced. [ 3 ] The main issue arises in relation to the long-standing presumption that if a Will last known to be in the custody of the Testator is not found at the testator’s death the testator destroyed it with the intention of revoking it.

The applicant, Linda Goold, who is the daughter of Eleanor Goold, relies on that presumption to assert that the Holograph Will was destroyed and that the administration of the estate should therefore proceed on the basis of intestacy. [ 4 ] The Respondents, Carol Ashton and Richard (Al) Ashton, who were named as Executor and Alternate Executor respectively in the Holograph Will, argue that the presumption does not apply in this case because there is an issue as to whether or not Eleanor Goold had the capacity to revoke her will.

They further argue that even if the presumption applies, there is sufficient evidence to rebut the presumption and that therefore, the estate should be probated using a copy of the Holograph Will. [ 5 ] As a result of these proceedings, there have been no steps taken for the administration of Eleanor’s estate because there is no executor or administrator in place. [ 6 ] All issues related to ATB Financial, who was a respondent in these proceedings have now been resolved. [ 7 ] Another respondent, Hallmark Educational Foundation of Mountain View Lutheran Church in Calgary, who is a beneficiary in the Holograph Will, takes no position on this application. [ 8 ] This matter proceeded as a special chambers application with viva voce evidence pursuant to an Order granted by Ackerl J on June 9, 2015.

Linda Goold, her nephew (and Eleanor’s grandson), Tyson Goold, and Carol Ashton all testified at the special chambers application. Factual Background [ 9 ] On May 21, 2004, Eleanor executed a Will. The Will was prepared by her long-time solicitor, Michael Klause, Q.C. Eleanor’s daughter, Linda Goold was named as Executor under that Will and Michael Klause, Q.C. was named as the Alternate Executor.

In the 2004 Will, Eleanor provided for her US Dollar account to be invested and used for the benefit and education of her grandson Tyson Goold, for all of her RRIF accounts and personal property to go to her daughter, Linda Goold, and for the residue of her estate to go to WELS – Canada (Wisconsin Evangelical Lutheran Synod), care of Mountain View Lutheran Church (Calgary). At around the same time as the Will was executed; Eleanor executed a Power of Attorney naming her friend, Bruce Chapman, as her Attorney.

Though the evidence is not clear as to when it was done, there was also a Personal Directive prepared by Eleanor, naming Linda as her Agent. [ 10 ] At some point after the 2004 Will was executed, Linda expressed to Eleanor that she did not wish to be Executor of the Will. [ 11 ] On June 15, 2006, Eleanor advised Linda in a letter, that “I did up a holographic will. Now my executor is Carol or Al Ashton”.

In that same letter, she also advised Linda that “Carol and Al have access to all my bank accounts in trust until I die”. [ 12 ] Linda Goold confirmed in her oral testimony that she received that letter around June 15, 2006, together with a copy of the letter referred to (the trust letter) and a copy of the Holograph Will. [ 13 ] The 2006 Will (dated May 27, 2006) revoked the 2004 Will and named Carol Ashton as Executor and her husband, Richard Allan Ashton, as Alternate Executor.

Under this Will, $5,000 was to go to Linda Goold, $5,000 was to go to Tyson Goold, and the rest of the estate was to go to Hallmark Education Foundation of Mountain View Lutheran Church in Calgary or, if that was not possible, to WELS – Canada. Personal property was to be given to Linda Goold and Tyson Goold as they chose, with the remainder to be disposed of by the Executor. [ 14 ] At around the time that the 2006 Will was prepared, the Ashtons were also added to Eleanor’s bank accounts as joint account holders.

According to the letter of June 15, 2006, this was done so that the accounts “will not be frozen which will cause a smooth transition for my automatic withdrawals for monthly payments and deposits”. During her testimony, Carol Ashton explained that it was made clear to her and her husband by “the lady at the bank”, that though their names were on Eleanor’s accounts, they were not to talk to the bank about the accounts or access the accounts until Eleanor’s death. Ms. Ashton’s evidence was that she and her husband followed those instructions. [ 15 ] Eleanor died on October 12, 2014.

In the years prior to her death, she suffered from diabetes and Alzheimer’s disease. [ 16 ] Prior to her death, a Declaration of Incapacity was signed by her doctor, Dr. Dippenaur, as of July 2, 2012. [ 17 ] A further Declaration of Incapacity was signed by a social worker, Masghina Teweldebrhan, on February 28, 2013. [ 18 ] There is no issue related to Eleanor’s mental capacity at the time that the Holograph Will was executed in May 2006. There is limited evidence related to Eleanor’s decline in terms of mental capacity after May 2006.

According to the Affidavit of Carol Ashton, Eleanor began showing signs of confusion in 2010. Linda Goold’s evidence confirms that though there were some signs beginning in 2004, that Eleanor was showing mild suffering from the effects of Alzheimer’s disease, the onset of symptoms was gradual, and for several years she had sufficient capacity to continue looking after her financial affairs. Affidavit Evidence and Testimony of Linda Goold [ 19 ] I found Linda Goold, who is a lawyer, to be credible. She testified that she had a good relationship with her mother.

She said that except for one year when Linda had cancer and did not want her mother to find out, she spoke with her mother three or four times per

month between 2004 and 2014. She said that she and Eleanor disagreed about religion but that this did not affect their relationship. Linda testified that after she became a lawyer, her mother would often ask her about legal issues. [ 20 ] When it came to questions about Wills, Linda referred her mother to Mr. Klause, because Linda did not practice in that area.

Linda testified that after her sister, Karen (Tyson’s mother) died, Eleanor asked Linda if it would bother Linda if Eleanor left money to the church and Linda told her that it would not. [ 21 ] Linda also testified that Eleanor was meticulous about keeping her important documents and that she usually kept them in a strong box in her room. Linda’s Affidavit sworn February 26, 2015 indicated that there was a metal lock-box located in Eleanor’s bathtub after her death and that there was what appeared to be black mold on the box, envelopes in the box, and the documents in the envelopes.

When Linda tried to pull the documents out of the envelopes, they came apart in her hands. She indicated during cross- examination that some documents disintegrated and that she could not see what those documents were. [ 22 ] Linda testified that her mother had many Wills over the years. She deposed in her Affidavit that after the 2004 Will was executed, Eleanor kept her informed about the status of her assets and various wishes she had regarding her property. She deposed in her April 20, 2016 Affidavit that “my mother often discussed her will with me, and her plans”.

Linda also deposed that “Eleanor was very careful to keep important documents and she understood the importance of legal advice. When she was considering any sort of change to her will or any other sort of legal issue, she called me because I am a lawyer.” [ 23 ] Linda’s evidence is that she agreed to be the executor for Eleanor but that she told Eleanor that she preferred that the executor be someone in Wetaskiwin. [ 24 ] Linda testified that she did not recall if she discussed the Holograph Will with her mother. She said that she never saw the original Holograph Will but that she assumed that her mother had it.

She also indicated that her mother never mentioned to her, that she had destroyed her Will. She testified that she did not recall her mother ever saying that she wanted to change the church as beneficiary under her Will. In cross-examination, Linda testified that Eleanor never mentioned to her that she had destroyed her Will.

She could not recall if Eleanor ever discussed with her any changes to her Will or making a new Will. [ 25 ] Regarding Eleanor’s mental capacity, Linda confirmed during her testimony that she had no concerns about her mother’s cognitive ability at the time that the 2004 Will was executed or at the time that the 2006 Holograph Will was executed. She said that she started to notice problems in late 2006, 2007, and going in to 2008.

She testified that the staff where her mother was residing called her in 2011 regarding activating Eleanor’s Personal Directive. [ 26 ] Linda testified that Carol Ashton called Linda from time to time to tell her what was happening with Eleanor. Linda also called Carol Ashton to inquire about Eleanor. [ 27 ] There was some attempt by Linda Goold in both her Affidavit evidence and her testimony, to portray Carol Ashton in a negative way. There were issues raised regarding the “trust letter” and the difference between what Eleanor had said in her June 15, 2006 letter and what Linda learned from Mr.

Klause after Eleanor’s death. She raised concerns about the joint bank accounts and the lack of accounting by Carol Ashton or her husband after Eleanor’s death. She suggested that the joint account could have been set up based on misinformation provided by Carol Ashton or Al Ashton. She deposed that the Ashtons did not provide the Alberta Treasury Branch with a copy of the “trust letter” and that the ATB believed that the Ashtons owned the money in the accounts after Eleanor’s death. Linda raised an issue in her Affidavit regarding Carol Ashton’s claim that she had taken the Holograph Will and Trust Letter to Mr.

Klause’s office when Mr. Klause was not able to locate it. Linda referred to statements made to Tyson by Eleanor that would indicate a dissatisfaction by Eleanor about the way that Carol Ashton was acting toward her and handling her affairs. She raised a concern about the fact that Eleanor was spending more time with Carol Ashton and less time with close friends Rose and Bruce Chapman. [ 28 ] In response to the Affidavit of Carol Ashton, Linda Goold filed a second Affidavit which was filed on April 20, 2016.

It is clear from that Affidavit that Eleanor Goold lived in Wetaskiwin and Linda (and later Tyson) lived in Calgary. Linda stated again that she and her mother had regular and frequent contact – if not in person, then by phone. She deposed that she was grateful when Carol started letting her know about medical issues or when Eleanor was in the hospital. [ 29 ] It is unfortunate that these proceedings have resulted in some hostility and distrust between Linda Goold and Carol Ashton.

Much of what has been said in the Affidavits in this regard is not relevant to the issue of whether or not the 2006 Holograph Will was revoked by Eleanor. Affidavit Evidence and Testimony of Tyson Goold [ 30 ] Tyson deposed in his Affidavit that in January of 2008, on his daughter’s birthday, Eleanor said that she wanted to add Tyson’s daughter and son to her Will. He also deposed that Eleanor had complained about how difficult it would be because Carol Ashton was not being accommodating to her.

During his testimony, Tyson said that Eleanor mentioned a desire to bring the grandchildren into her Will during two phone conversations. [ 31 ] Tyson testified that he did not know Carol Ashton. He said that in 2008, Eleanor gave him a loan and that there were some delays in getting Carol to take Eleanor to the bank. [ 32 ] Regarding Eleanor’s mental capacity, Tyson testified that he noticed small memory issues in 2008 and obvious ones in 2009. [ 33 ] I found Tyson to be a credible witness. Affidavit Evidence and Testimony of Carol Ashton

[ 34 ] I found Carol Ashton to be a credible witness. It was obvious to me from her testimony and her Affidavit, that she wanted to do right by Eleanor, both before and after Eleanor’s death. [ 35 ] Carol testified that she and her husband met Eleanor through the church. Carol and her family moved to Wetaskiwin in 2004, but they had known Eleanor for years prior to that move. Carol and Eleanor led ladies’ bible studies at the church. [ 36 ] While Eleanor was well, Carol saw Eleanor every week for bible studies, for Sunday church services and gatherings, and to drive Eleanor to appointments and meetings.

Carol testified that in the first few years there was not as much driving, but that after five years Carol drove Eleanor more often. In her Affidavit of May 21, 2015, Carol deposed that she had daily phone calls with Eleanor – sometimes up to three to four times a day. Carol testified that Eleanor babysat for her on occasion. It was Carol’s perception that Eleanor had little contact with her family and that she was lonely.

Carol asked some church members to help visit Eleanor. [ 37 ] When Eleanor was hospitalized in late 2010 until 2011, Carol visited her daily. [ 38 ] Carol deposed that after Eleanor moved from Luther Manor to Peace Hills Lodge/Kiwanis Court, Carol continued to drive Eleanor to her appointments and meetings.

As Eleanor was declining and called Carol sometimes at two or three in the morning, Carol would call the staff at the facility where Eleanor was residing. [ 39 ] Carol’s evidence is that Eleanor told her that she was displeased with Linda and her views on religion and wanted Carol and her husband to be the executor of her Will. Eleanor wanted to donate money to the church. Carol and her husband agreed to be Eleanor’s executors. Carol also deposed that prior to 2010, Eleanor stated her discontent related to her family not coming to visit her.

Carol deposed that she had only known Linda and Tyson to visit Eleanor a couple of times, closer to Eleanor’s death. Carol deposed that sometimes there were years with no visit from either Linda or Tyson. She testified that after 2010, she estimates that she had less than 10 conversations with Linda. [ 40 ] At some point, Carol drove Eleanor to her lawyer’s office. Later at a bible study meeting that same month, Eleanor gave Carol an envelope. Carol assumed that the envelope contained the Will. Carol did not open the envelope for eight years until shortly before Eleanor’s death when Linda asked her to do so.

Carol testified that after 2006, Eleanor never advised her that she had made changes to her Will. [ 41 ] Carol deposed that Eleanor also asked Carol and her husband to meet her at the bank, where it was explained to them by bank personnel, that Eleanor had put Carol and her husband on Eleanor’s account “to assist in paying any details upon her death”. Carol is clear that Eleanor initiated this process. Carol deposed in her Affidavit that “this money was not accessed by my husband or I [ sic ], since access could only occur after her death”. This understanding was also confirmed in Carol’s oral testimony.

Carol testified that the right of survivorship was not discussed with her and her husband. She also testified that the trust letter was signed at the bank, that she did not prepare it, and that she does not know who prepared it. [ 42 ] Carol testified that she wrote out cheques for Eleanor to pay bills and that Eleanor would not sign the cheques until she understood what they were for. After the Enduring Power of Attorney was activated, Carol would write out the cheques, take them to Bruce Chapman, who would deliver the cheque to the payee, and then Carol would take a copy of the receipt back to Eleanor.

In cross examination Carol indicated that there has been no accounting for transactions in Eleanor’s bank accounts for the past two years – however, in response to questions from the Court, it appeared clear that Eleanor’s accounts have not been accessed by Carol and her husband since Eleanor’s death. The memory books that Carol prepared for Eleanor include financial information in terms of bills paid. Those appear to be the only source of information regarding the handling of any financial matters by Carol and her husband for Eleanor.

Carol indicated that she did not have any difficulty with compiling the financial information that is contained in the three memory books. [ 43 ] An attempt was made during cross-examination to suggest that Carol and her husband deliberately obstructed the process of obtaining bank statements for Eleanor’s accounts from the ATB. I accept Carol’s explanation that they did not know what to do and that they did not have a lawyer until the second court application. [ 44 ] Carol was also questioned in cross-examination about the fact that Eleanor sold her car to Carol and her husband in 2006.

It is unclear why this was raised, as the evidence indicates that in 2006, Eleanor was still handling her own affairs without difficulty. [ 45 ] On the issue of mental capacity, Carol deposed that she noticed in 2010 that Eleanor started to repeat the bible studies. She said that this continued until Eleanor was hospitalized in 2010. Eleanor remained in hospital until 2011 and during that time Carol noticed that Eleanor continued to have memory problems. In 2011, Carol started a memory book for Eleanor so that Eleanor could read what happened during the day.

Eleanor and Carol made notes in the book for appointments, meetings, cheques written, to do lists, visitors, and what happened at church. [ 46 ] Carol deposed that after Eleanor’s death, she called Mr. Klause and he did not have a copy of the Holograph Will so Carol dropped it off. Carol also took a copy of the Holograph Will to the ATB. [ 47 ] Carol’s evidence confirms that Eleanor had a lot of passion for the work of the church.

She summarized all of Eleanor’s connections to the church – including the fact that she had been married to a pastor, the fact that she spent decades volunteering in the church by teaching Sunday school, Vacation Bible School, Women’s Bible Class and she had also traveled to speak at a Women’s Retreat on Mental Health. [ 48 ] Carol’s evidence is that she never met Linda in person until Eleanor’s funeral. [ 49 ] In addition, Carol’s evidence is that she purchased numerous personal items for Eleanor, for which she was never reimbursed.

There is no indication that she is seeking any reimbursement for these things. [ 50 ] Carol has done some research with the church and has determined that Hallmark Educational Foundation (an organization that provides funding to foster and promote Canadian Christian education and missions) is still in Calgary and that Eleanor’s wishes can be

carried out. Carol testified that Eleanor was good friends with the founder of the Foundation. Analysis Revocation [51]

Section 23 of the Wills and Succession Act, SA 2010, c W-12.2, provides for the mechanisms by which a will or part of a willmay be revoked by the testator. These include making another will, declaring in writing an intention to revoke an earlier will, and“burning, tearing or otherwise destroying the will with the intention of revoking it”. [52] There is no issue that the Holograph Will was duly executed by Eleanor and that it complies with the requirements for aHolograph Will.

There is also no issue as to Eleanor’s capacity when the Holograph Will was prepared by her. [53] The Holograph Will clearly revoked the 2004 Will. [54] The original Holograph Will cannot be located. There is no clear evidence that Eleanor destroyed her Holograph Will or thatshe instructed anyone else to do so. There is also no evidence to suggest that the Holograph Will was not in Eleanor’s possession fromthe time it was made until her death.

Legal Presumptions and Burden of Proof [55] Linda Goold relies on the legal principle that when a testator has possession of her testamentary instrument and it is notforthcoming at the time of her death, the presumption is that she destroyed it. That presumption can be rebutted if there is evidence thatestablishes on a balance of probabilities, that the testator did not intend to revoke the Will – the assumption being that the Will was lostand not destroyed.

The burden is on the person trying to rebut this presumption, to satisfy the court that the Will is in fact lost and wasnot destroyed by the testator with an intention of revoking it. [56] However, the ability to rely on this presumption is impacted by the issue of whether or not Eleanor had the capacity to revokeher Will at the time that she is presumed to have destroyed it.

As the destruction of a will, “must be voluntary, the testator must be of thesame state of competence as when a valid Will is created.” Re Green (Estate) 2001 ABQB 835 at para 34. [57] Where a testator becomes mentally incapable after executing the Will, the burden shifts to the party alleging revocation toshow that the destruction occurred while the testator was of sound mind: Re Broome (1961), (MB CA), 29 DLR (2d)631, [1961] MJ No 51 (MB CA); Re Whitelaw Estate (1985), (AB KB), 61 AR 96, [1985] AJ No 874 (Alta QB).

Aperson without capacity lacks the capacity to revoke her Will: Polischuk Estate v Perry, 2014 BCSC 1089 at para 64, confirming theprinciples from Broome. [58] Jenkins J in Polischuk at para 66, summarized the applicable burdens as follows: The preceding law establishes that the burden of proof is, in most circumstances, on the party asserting that the will was in fact lost andnot destroyed. Re Broome, however, notes that the burden of proof shifts in the circumstance where a person becomes mentallyincapable/unstable.

When that situation arises, the evidentiary burden shifts to the party alleging that the testator destroyed the will toprove that the destruction occurred while the testator had capacity. [59] Further, on the issue of revocation and mental capacity, both Polischuk and Broome cite with approval the old English case ofSprigge v Sprigge (1868), LR 1 P&D 608, which provides at p 610, that: The short proposition is, that the burden of shewing that the revocation was done not after the testator became insane, but when he was ofsound mind, is cast on those who set up the revocation.

In this case there was no evidence to shew when it was done. Therefore, thosewho sought to set up a revocation failed in establishing the facts on which the presumption of revocation would rest. [60] The Ontario Court of Appeal followed this proposition in Sorkos v Cowderoy (2006), 215 OAC 194, (ONCA) and stated that it was “doubtful” that the presumption of revocation applied where the testator had likely lost her capacity to revokethe Will by the date at which the impugned Will went missing (at para 11).

Evidence Required to Satisfy Burden [61] In Brimicombe v Brimicombe Estate, 2000 NSCA 67, the Nova Scotia Court of Appeal reviewed older authorities thatsuggested that “strong evidence” is required to rebut the presumption of revocation.

Very recently in Cordell v Shiels Estate, 2016ABQB 218, Macklin J of this Court referenced two such cases: Sigurdson v Sigurdson, (SCC), [1935] 4 DLR 529,[1935] SCJ No 55 (SCC) and MacBurnie v Patriquin, (NS CA), [1975] NSJ No 447, 14 NSR (2d) 680 (NS CA).These cases stand for the proposition that the burden on the person trying to rebut the presumption of destruction with the intention ofdestroying a will is “very heavy” (see Shiels Estate at para 71). [62] Notwithstanding these older authorities, the Nova Scotia Court of Appeal stated, “it is clear that the burden is no stronger thanthat of a balance of probabilities”: Brimicombe at para 6.

Indeed, this corresponds with the Supreme Court of Canada’s direction that, inCanada, “there is only one civil standard of proof at common law and that is proof on a balance of probabilities”: C(

R) v McDougall,2008 SCC 53 at para 40. Evidence of mental capacity

[63] Eight years and five months passed between the execution of the Holograph Will and Eleanor’s death. The evidence of hermental capacity during this period is as follows: • According to the Affidavit of Carol Ashton, Eleanor began showing signs of confusion in 2010.

Linda Goold’s evidence confirmsthat though there were some signs beginning in 2004, that Eleanor was showing mild suffering from the effects of Alzheimer’s disease,the onset of symptoms was gradual and for several years, she had sufficient capacity to continue looking after her financial affairs; • Linda confirmed during her testimony that she started to notice problems in late 2006, 2007, and going in to 2008.

She testifiedthat the staff where her mother was residing called her in 2011 regarding activating Eleanor’s Personal Directive; • Tyson testified that he noticed small memory issues in 2008 and real obvious ones in 2009; • Carol deposed that she noticed in 2010 that Eleanor started to repeat the bible studies. She said that this continued until Eleanorwas hospitalized in 2010. Eleanor remained in hospital until 2011 and during that time Carol noticed that Eleanor continued to havememory problems. In 2011, Carol started a memory book for Eleanor so that Eleanor could read what happened during the day.

Eleanorand Carol made notes in the book for appointments, meetings, cheques written, to do lists, visitors, and what happened at church; • A Declaration of Incapacity was signed by Eleanor’s doctor, Dr. Dippenaur as of July 2, 2012. • A further Declaration of Incapacity was signed by a social worker, Masghina Teweldebrhan, on February 28, 2013. [64] Two critical facts are unknown. First, at what point did Eleanor lose the capacity required to revoke her Will? Second, whenwas the Will destroyed?

Without evidence on these two things, it is not possible to draw a conclusion on whether or not Eleanor had thecapacity to revoke her Will at the time that she is presumed to have destroyed it. Similar to the facts in Broome, “What happened to theoriginal instrument is still a mystery. The evidence fails to reveal how or when it disappeared...” (at p 637). [65] It appears that the need to activate the Personal Directive was raised in 2011. Accordingly, for as many as three years prior toher death, Eleanor may have lacked the capacity to revoke her Will.

The exact date that she lost capacity is unclear. [66] There is no evidence whatsoever of when Eleanor may have destroyed her 2006 Holograph Will.

Therefore, we are left withthe possibility that if Eleanor did destroy her 2006 Will, she may have done it at a time when she did not have the capacity to do so. [67] The Applicants rely on the case of O’Donovan v O’Donovan, , [2009] OJ No 5020 (ON SC), for theproposition that the onus of establishing testamentary incapacity is on the party advancing the allegation and that it is only when lack oftestamentary capacity is proven that the onus shifts to the party alleging revocation.

The Applicant argues that lack of “testamentarycapacity” is necessary and that this requires a complete evidentiary record. [68] With respect, I disagree with that approach. In my view, it is reasonable to require the party relying on a presumption thatpresupposes capacity, to demonstrate such capacity. In any case where the testator is mentally declining and there is no clear evidence oftestamentary capacity or of the date of destruction of a Will, this task will be very difficult.

Even a detailed analysis of the testator’smental capacity between the date of the Will and the date of death provides no assistance if one cannot establish, with some certainty,the date on which the Will is alleged to have been destroyed. Application of the presumption in these circumstances would be unfair tothe testator in my view. [69] The Applicants bear the burden of establishing that the Will was destroyed while Eleanor was of sound mind. They have notdischarged their burden.

Evidence to rebut presumption of revocation [70] If I am wrong, and even if there was no issue related to Eleanor’s capacity to revoke the 2006 Will, I find that there issufficient evidence to rebut the presumption that she intended to revoke the Will. [71] Polischuk, at para 61, refers to the case of Haider v Kalugin, 2008 BCSC 930, and summarizes factors to consider indetermining whether the presumption has been overcome. Those factors are as follows: 1. Whether the terms of the Will itself were reasonable – In this case, there is no dispute that the terms reflect the intentions ofEleanor Goold.

In this regard, the terms of the 2006 Holograph Will were similar in principle to the 2004 Will. At the time that she madeboth Wills, Eleanor was deeply committed to the church and the related WELS – Canada and Hallmark organizations. It would thereforeappear that the terms of the 2006 Holograph Will were reasonable. 2. Whether the testator continued to have good relationships with the beneficiaries in the copy of the Will up to the date ofdeath – Eleanor was clearly passionate about her church and the work of the church and there is no indication that this changed prior toher death.

I accept the evidence of Linda Goold and Tyler Goold that they had a good relationship with Eleanor. They did not spend asmuch time with Eleanor as Carol did, but that does not mean that they did not have a positive relationship with Eleanor. 3. Where personal effects of the deceased were destroyed prior to the search for the Will being carried out – In this case, itappears that Eleanor kept important documents in the lock box that was found in her bathtub. Many of the documents were destroyed bythe passage of time and the intervention of moisture and mold.

Linda admits that the 2006 Holograph Will could have been in that box.There is no evidence of the destruction of any of Eleanor’s personal effects prior to the search for the 2006 Will. 4. The nature and character of the deceased in taking care of personal effects – The evidence is that Eleanor was meticulousabout taking care of her important documents. Linda deposed that “Eleanor was very careful to keep important documents”. She may

well have thought that she was protecting the 2006 Holograph Will by placing it in the lock box if she did so. There is no evidence that other important documents were stored anywhere else. 5. Whether there were any dispositions of property that support or contradict the terms of the copy sought to be probated – There were no such dispositions of property in this case. 6. Statements made by the testator which confirm or contradict the terms of distribution set out in the Will – In this case, Eleanor confirmed to Linda and to Carol her wish to have the church as a beneficiary of her estate.

She did mention to Tyson that she would like to add her great-grandchildren as beneficiaries, but there is no evidence of any steps being taken in this regard. Eleanor knew how to make a Holograph Will and there is no evidence that she made another one. She also had Carol available to drive her to Mr. Klause’s office (which she had previously requested) and there is no evidence that she did so or even mentioned to Carol, to Linda, or to anyone else, that she wanted to change her Will. 7.

Whether the testator was of the character to store valuable papers, and whether the testator had a safe place to store the papers – As indicated above, the only evidence on this issue is the existence of a lock box that was found in Eleanor’s bathtub after her death. Unfortunately, the damage to the documents contained therein does not allow any definite conclusions to be drawn as to whether or not the 2006 Holograph Will was contained in the box. 8.

Whether there is evidence that the testator understood the consequences of not having a Will, and the effects of intestacy – There is no evidence as to Eleanor’s understanding of the consequences of not having a Will. The extent to which this may or may not have been discussed with Linda or with Mr. Klause was not put in evidence. It does appear from the evidence, however, that Eleanor was attentive to having a Will, as she had many over the years according to Linda’s evidence.

It is also clear from the evidence that Eleanor wanted to leave the bulk of her estate to the church – something that would not happen if her estate was distributed pursuant to an intestacy. The 2006 Will was very similar to the 2004 Will and was consistent with Eleanor’s intentions in terms of a bequest for the church. 9. Whether the testator made statements to the effect that she had a will – The last indication that Eleanor gave to Linda about having a Will was in June of 2006 when she advised Linda that she had prepared a Holograph Will.

At around that same time, she also gave a copy of the Will to Carol Ashton in a sealed envelope. According to the evidence of Linda Goold, she had regular contact with Eleanor by phone. It is clear that Eleanor had frequent and regular contact (sometimes daily) with Carol Ashton. Eleanor did not mention to either of these two individuals that she had prepared a new Will after the 2006 Holograph Will was prepared. She knew that she had given a copy of the 2006 Holograph Will to Carol to open after her death and there is no evidence that she gave Carol any different instructions after that.

In addition, there is evidence from Linda Goold that her mother had many Wills over the years, that Eleanor kept Linda informed about the status of her assets and various wishes she had regarding her property, and that when Eleanor was considering any sort of change to her Will or any other sort of legal issue, she called Linda because she is a lawyer. This evidence is significant because it tends to support a conclusion that if Eleanor had wanted to change her Will, she would have contacted Linda.

Evidence that Eleanor revoked the 2006 Holograph Will [ 72 ] Linda argues that there is some evidence that is consistent with a conclusion that Eleanor revoked her 2006 Will. She relies on the following: 1. Eleanor had expressed some dissatisfaction with Carol’s handling of her affairs – It appears clear from the evidence that even if Eleanor had expressed dissatisfaction with Carol Ashton, throughout the period from 2006 until the time of her death, she continued to have frequent contact with Carol and to rely on Carol more and more as she declined.

She trusted Carol and her husband enough to maintain them throughout this period, as joint holders of her bank accounts. Eleanor could have cut off contact with Carol or changed her bank accounts, made arrangements for transportation by others, but she did not. Considering all of the evidence, I must conclude that Eleanor was satisfied with her relationship with Carol Ashton. This argument does not, in my view, support a conclusion that Eleanor destroyed her Holograph Will because she no longer wanted Carol Ashton and her husband to be executors. 2.

Eleanor had given some indication to Tyson that she wanted to change her Will to include his children as beneficiaries – As indicated above, there is no evidence that Eleanor took any steps to change her Will after she made these comments to Tyson. 3. There is no evidence of Eleanor having re-affirmed her Will – This point is a double-edged sword. Linda uses it to support the suggestion that the Holograph Will was destroyed. It could also support a conclusion that there was no need to re-affirm the Holograph Will because it was in place. 4.

Eleanor’s 2004 Will was found in her papers and there is no indication that Eleanor understood that if she revoked her 2006 Will, her 2004 Will would not be revived – Given the damage to the papers in the lock box, it is possible that the 2006 Holograph Will was in that box.

Therefore, the existence of the 2004 Will in the same box does not support a conclusion that the 2006 Will was destroyed, and that Eleanor kept the 2004 Will, because she thought that the destruction of the 2006 Will would “revive” the 2004 Will. [ 73 ] These arguments, in my view, do not outweigh the other evidence that rebuts the presumption that the Holograph Will was destroyed/revoked by Eleanor prior to her death. [ 74 ] There is sufficient evidence to establish, on a balance of probabilities, the absence of an intention by Eleanor to revoke the 2006 Holograph Will.

Conclusion [ 75 ] Probate may be granted based on the 2006 Holograph Will using a photocopy of that Will.

[ 76 ] Carol Ashton, as part of her duties as Executor, shall provide an accounting with respect to any financial matters that she handled for Eleanor, by summarizing those financial entries from the memory books. She shall also provide copies of the bank statements for any bank accounts that Carol Ashton and her husband held jointly with Eleanor, for the period covered by the financial entries in the memory books.

Carol Ashton shall also request from Bruce Chapman, an accounting of the financial transactions that he handled for Eleanor in his capacity as Attorney under the Enduring Power of Attorney. [ 77 ] If any further directions are required while Eleanor’s estate is being probated, the parties may return to this Court. [ 78 ] Failing agreement, costs may be spoken to within 30 days following this decision. Heard on the 21 st day of April, 2016. Dated at the City of Edmonton, Alberta this 26 th day of May, 2016. D.A. Yungwirth J.C.Q.B.A. Appearances: Brian N.

Clark Clark & Associates for the Plaintiff Joshua Mohr Knault Johnson Francoeur for the Respondents