Zukas Estate (Re), 2016 ABQB 587

Court of Queen’s Bench of Alberta Citation: Zukas Estate (Re), 2016 ABQB 587 Date: 20161019 Docket: ES01 118615 Registry: Calgary Court File Number ES01 118615 Court Court of Queen’s Bench of Alberta (Surrogate Matter) Judicial Centre Calgary Estate Name Frank William Zukas Applicant (Plaintiff) Anne Cherry Mah Respondent (Defendant) Karen Zukas, Nancy Schmautz, Patricia Zachary Corrected judgment: A corrigendum was issued on January 6, 2017; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Judgment of the Honourable Mr.

Justice J.T. McCarthy _______________________________________________________ Introduction [ 1 ] This is an application to formally admit a will to probate, issue a grant of probate of the will to the personal representative named in the will, summarily dispose of any objection to the grant of probate, and discharge the caveat filed by the Respondents. [ 2 ] On May 15, 2015, Frank William Zukas (the “Deceased”) met with a lawyer, Emerson Dunlop (“Mr. Dunlop”), at a hospice and gave instructions for a will (the “Will”). The Will was executed on May 19, 2015. Mr. Zukas died on May 28, 2015 in the hospice at

the age of 84. [ 3 ] The Deceased was divorced in 1979 and pre-deceased by his ex-wife. The Deceased has three adult children: Patricia Zachary, Nancy Schmautz and Karen Zukas (collectively the “Respondents”) and six grandchildren. [ 4 ] The Deceased told Mr. Dunlop that he did not want to leave anything to the Respondents. The Deceased named a friend, Anne Cherry Mah (the “Applicant”), as the sole beneficiary of his estate, valued at approximately $700,000. [ 5 ] The Respondents dispute the validity of the Will on the grounds of incapacity and undue influence.

They submit that there is a genuine issue to be tried, and therefore, formal proof of the Will must proceed to a trial. The Respondents abandoned the argument alleging undue influence during oral argument. Background i. Will Instructions on May 15, 2015 [ 6 ] In May 2015, the Deceased was transferred to a hospice after a hospital stay. On the morning of May 15, 2015, a social worker at the hospice called a lawyer, at the request of the Deceased, and asked him to come to the hospice for the purposes of drafting a will for the Deceased. The lawyer, Mr.

Dunlop, and the social worker had not spoken or met prior to the telephone call. [ 7 ] That day, Mr. Dunlop met the Deceased at the hospice to take instructions for the Will. The social worker was in the room when the Deceased and Mr. Dunlop met for the first time. While the social worker was in the room, the Deceased introduced himself to Mr. Dunlop and told Mr. Dunlop his life story, including that he had been married and had three adult children. The social worker left the room after approximately 15 or 20 minutes, at which point Mr.

Dunlop began taking instructions from the Deceased. [ 8 ] Instructions were given in the following manner: Mr. Dunlop asked the Deceased questions from a standardized questionnaire and noted the answers given by the Deceased. Mr. Dunlop was the only person present in the room when he went through the questionnaire. [ 9 ] The Deceased told Mr. Dunlop that he wanted to leave each of his adult children a used printer and $100 because he had heard somewhere that if he left them something they would not be able to contest the Will. Mr. Dunlop told the Deceased that this was not the law.

After receiving this advice, the Deceased told Mr. Dunlop that he did not want to leave his children anything. [ 10 ] The Deceased instructed Mr. Dunlop that he wanted to leave his entire estate to the Applicant. The Applicant was to be the sole executor and beneficiary of the Deceased’s estate. [ 11 ] The Deceased told Mr. Dunlop that he did not have an existing will. [ 12 ] The Deceased made factual errors when giving instructions to Mr. Dunlop. He told Mr. Dunlop that (

i) he was a widower, (ii) he had seven grandchildren, (iii) he was estranged from his three daughters for the past 20-25 years, and (iv) the Applicant’s name was Anna. The facts are not contentious: (

i) Mr. Zukas was pre-deceased by his ex-wife so he was not technically a widower, (ii) he had six grandchildren, (iii) he had seen or spoken to his children in the 20-25 year period prior to his death, and (iv) the Applicant’s name is Anne. [ 13 ] Later that day in his office, Mr. Dunlop made notes regarding the meeting with the Deceased. The notes include his opinion that there were no issues regarding testamentary capacity. His notes include the following observation regarding the Deceased’s attitude towards his children: “client angry at kids for no relationship”. [ 14 ] Mr.

Dunlop prepared the Will over the next three days. ii. Will Execution on May 19, 2015 [ 15 ] The Deceased executed the Will on May 19, 2015 at the hospice in the presence of both Mr. Dunlop and Mr. Dunlop’s assistant. [ 16 ] Mr. Dunlop provided a copy of the Will to the Deceased for him to read. Mr. Dunlop’s affidavit evidence is that the entire Will was read as a combination of Mr. Dunlop reading the Will to the Deceased and the Deceased reading the Will. Mr. Dunlop had no concerns with the deceased’s understanding of the Will. [ 17 ] Mr.

Dunlop swore an affidavit wherein he states that his usual practice is to inquire into a series of areas to determine if a testator has capacity, and he did so on May 19, 2015. Mr. Dunlop did not make any notes regarding the events that took place on May 19, 2015. [ 18 ] On May 21, 2015, Mr. Dunlop executed an Affidavit of Witness to a Will stating that he believed the Deceased understood the document being signed and believed the Deceased was competent to sign the Will. iii. The Applicant

[ 19 ] The Deceased was a customer at the Applicant’s bank. They met in 1999 and had a professional relationship for 13 years until the Applicant retired in December 2012. During those 13 years they did not socialize outside of the bank. Their relationship consisted of sharing a cup of coffee in the lobby of the bank or sometimes the Applicant would assist the Deceased with his banking needs. [ 20 ] Sometime in late December 2013, after the Applicant had retired, the Deceased phoned the bank where the Applicant had worked and requested her contact information.

The Deceased and the Applicant spoke on the phone once every few months from January 2014 until mid-March 2015. The Applicant describes these as general conversations where they would ask how the other was doing. [ 21 ] On May 10, 2015, the Applicant returned from vacation to voicemail messages from the hospice regarding the Deceased. The Deceased had apparently listed the Applicant as his contact while he was at the hospice. [ 22 ] The Applicant visited the Deceased at the hospice daily from May 10, 2015 until his passing.

During those visits, the Applicant alleges that the Deceased told the Applicant that he had chosen her to be the sole beneficiary of his estate and he did not want to give any money to his children. The Applicant’s affidavit evidence is that she was shocked to be included in the Will. iv. The Respondents [ 23 ] The Respondents acknowledge that they each had a difficult relationship with their father. They stated that their father was physically, verbally, and emotionally abusive of them during their teenage years. [ 24 ] The last time Patricia Zachary saw her father was December 31, 2014.

Karen Zukas did not provide evidence regarding when she last saw or spoke to her father. In Nancy Schmautz’s affidavit she said she spoke to her father in September and December 2014, however during questioning on her affidavit she said she last spoke to her father in 2002. [ 25 ] The Respondents did not find out that the Deceased was in a hospice until a neighbour told Patricia Zachary, sometime after April 28, 2015, that the Deceased had been taken away in an ambulance. The Respondents were not at the hospice, nor did they speak to the Deceased by phone on May 15, 2015 or May 19, 2015.

The Respondents did not visit or talk to the Deceased on the phone on or near the day of his passing. Patricia Zachary phoned the hospice sometime in May 2015 but she did not speak with the Deceased, she spoke with a nurse. The Respondents Nancy Schmautz and Karen Zukas sent cards to the Deceased, which arrived at the hospice on May 28, 2015. [ 26 ] Karen Zukas swore in her affidavit that the Deceased had executed a will prior to May 15, 2015. This pre-existing will allegedly appointed her as executor and sole beneficiary of the Deceased’s estate. v.

No Capacity to Execute Codicil on May 28, 2015 [ 27 ] At some point after May 19, 2015 and before May 28, 2015, the social worker at the hospice left a voicemail for Mr. Dunlop telling him that the Applicant’s name was Anne Mah, and not Anna Mah as the Deceased had told him. Mr. Dunlop returned to the hospice on May 28, 2015 to execute a codicil to make that change. On seeing the Deceased, Mr. Dunlop determined that the Deceased did not have capacity to execute the codicil. The Deceased passed away on the evening of May 28, 2015. vi.

The Current Action [ 28 ] The Applicant applied for a grant of probate on July 8, 2015. The Respondent Patricia Zachary filed a caveat against the grant of probate on July 17, 2015; the caveat expired on October 19, 2015. The Respondent Nancy Schmautz filed a caveat against the grant of probate on October 16, 2015.

The caveats allege that the Deceased lacked testamentary capacity to execute the Will and undue influence. [ 29 ] On December 11, 2015 the Applicant applied to have the Will formally admitted to probate and to summarily dispose of the objections to the grant of probate on the grounds that there is no genuine issue to be tried. The Applicant made this application under the Surrogate Rules , Alta Reg 130/1995. Rule 75(1) authorizes a personal representative to apply to the court to obtain formal proof of a will and rule 64(1) (

b) authorizes the court to dispose of the issues arising out of the application as it considers appropriate. [ 30 ] The Respondents oppose the

summary application and argue that probate of the Will must proceed in solemn form at a trial pursuant to rule 64(1)(c). The Respondents claim that the Deceased lacked testamentary capacity on the date he provided instruction (May 15, 2015) and on the date the Will was executed (May 19, 2015).

In oral argument the Respondents’ counsel argued that there is sufficient evidence of incapacity on May 19, 2015 for the court to direct a trial. [ 31 ] Both parties filed affidavits pertaining to the Deceased’s capacity and the circumstances surrounding the instruction and execution of the Will. [ 32 ] The evidence for the Applicant consists of affidavits from the Applicant and Mr. Dunlop, questionings on those affidavits, the completed questionnaire used by Mr. Dunlop on May 15, 2015, and Mr. Dunlop’s notes from May 15, 2015. The Applicant put three letters to the Respondents during questioning.

The letters were allegedly found among the Deceased’s belongings. The letters are as follows: (

i) a letter from Patricia Zachary to the Deceased that Mrs. Zachary confirmed she wrote, (ii) a letter allegedly from the Deceased to Patricia Zachary but Mrs. Zachary said she did not recognize, and (iii) a letter allegedly from the Deceased to Nancy Schmautz but Mrs. Schmautz said she did not recognize. Patricia Zachary confirmed on questioning that the first letter was an accurate representation of her feelings toward the Deceased in 2003. I give no weight to the other two letters since the Respondents said they had not seen these letters and could not confirm that the letters were in the Deceased’s handwriting.

[ 33 ] The evidence for the Respondents consists of affidavits from each of the three Respondents and transcripts of questionings on the affidavits of Patricia Zachary and Nancy Schmautz. There was no questioning on the transcript of Karen Zukas. [ 34 ] Neither party submitted medical evidence. Issues [ 35 ] There are two issues to be decided: 1. Whether Karen Zukas’ evidence that the Deceased had a pre-existing will is admissible? 2.

Whether formal proof of the Will must proceed by way of trial on the grounds that there is a genuine issue for trial or whether formal proof of the Will may be granted summarily? [ 36 ] For the reasons that follow I find that Karen Zukas’ evidence of the pre-existing will is not admissible, there is no genuine issue for trial, and the Will is formally admitted to probate. Analysis [ 37 ] I first summarize the law applicable to the procedure of formally proving a will, and then address the two substantive issues identified above.

a) Procedure for Formal Proof of a Will The Rules [ 38 ] The Surrogate Rules grant the Court a wide discretion to determine the appropriate procedure for formal proof of a will. Division 1 under Part Two of the Surrogate Rules sets out the procedure for a party to bring an application respecting any contentious matter, including formal proof of a will. [ 39 ] Rule 64(1) provides: 64

(1) The court, on hearing an application, may (

a) receive evidence by affidavit or orally; (

b) dispose of the issues arising out of the application as it considers appropriate; ... (

c) direct a trial of issues arising out of the application; ... (

h) order costs to be paid from the estate or by any person who is a party to the application; (

i) make any order that the court considers necessary in the circumstances. [ 40 ] With respect to rule 64(1)(c), rule 83(1) lists two conditions for when a trial is necessary:

(1) The hearing in an application for formal proof of a will under this Division must be in the form of a trial before the court and must not be held in chambers, (

a) if several witnesses are necessary in the opinion of the court, or (

b) if the court orders a trial. The Test [ 41 ] The parties agree that the appropriate test to determine whether a trial is necessary to formally prove a will is whether there is a genuine issue to be tried: Quaintance v Quaintance (Estate) , 2006 ABCA 47 at para 23 .

A genuine issue requires an evidentiary foundation: Quaintance at para 19 . [ 42 ] A chambers judge has a wide discretion when determining the appropriate procedure to decide an application for formal proof of a will: Charles v Young , 2014 ABCA 200 at para 7 . [ 43 ] Whether there is a genuine issue to be tried is not a high threshold: Cordell v Nipshank , 2016 ABQB 218 at para 47 . This threshold is met if there is conflicting affidavit evidence on key facts such that the court must assess credibility of witnesses to make findings of fact: Charles v Young at para 4 .

Inconsistencies in affidavit evidence, however, can sometimes be resolved on the existing

record by applying the law such as that respecting onus of proof, the requirement for corroboration, or the general rule that unswornevidence is to be given little weight: Goehring v Lightbrown, 2013 ABQB 709 at para 44. [44] This Court has ordered that formal proof of a will proceed by way of trial in circumstances where there is conflicting affidavitevidence and where the court was required to assess issues of credibility and reliability of witnesses: Fisher v Canada Life AssuranceCo, 2006 ABQB 311 at para 9; Murrel v Brown, 2013 ABQB 758 at para 24; Re Dhaliwal Estate, 2011 ABQB 279 at para 33.

b) Issue 1: Whether Karen Zukas’ evidence that the Deceasedhad a pre-existing will is admissible? [45] The first issue is whether the Respondents’ evidence that the Deceased had a will prior to May 15, 2015 is admissible. [46] This is the only evidence furnished by the Respondents that conflicts with that of the Applicant. Karen Zukas swore in heraffidavit that the Deceased executed a will prior to May 15, 2015 that appointed her as executor and sole beneficiary of his estate. Mr.Dunlop swore in his affidavit that on May 15, 2015 he asked the Deceased whether he already had a will and the Deceased indicated thathe did not. i. Law [47]

Section 11 of the Alberta Evidence Act, RSA 2000, c A-18 provides: In an action by or against the heirs, next of kin, executors, administrators or assigns of a Deceased person, an opposed or interested partyshall not obtain a verdict, judgment or decision on that party’s own evidence in respect of any matter occurring before the death of theDeceased person, unless the evidence is corroborated by other material evidence. ii. Analysis [48] Karen Zukas’ evidence of the pre-existing will is not admissible pursuant to

section 11 of the Alberta Evidence Act. [49] The only evidence of the existence of this pre-existing will is in the affidavits of two of the Respondents, Karen and her sisterPatricia Zachary. There is no evidence from anyone else except these two Respondents, one of which is the chief beneficiary of thealleged pre-existing will. [50] Neither Respondent can point to evidence outside of their own affidavits to corroborate their evidence concerning this pre-existing will. The Applicant was not afforded the opportunity to cross-examine Karen Zukas on her statements.

During questioning,Patricia Zachary confirmed that she had no independent knowledge of this will and the circumstances surrounding it other thanconversations she had with sister Karen Zukas. [51] Without corroborating evidence, the Court cannot consider the alleged existence of the pre-existing will in determiningwhether there is a genuine issue for trial. In this case,

section 11 of the Alberta Evidence Acts operates so that the self-servinguncorroborated testimony of the Respondent Karen Zukas cannot defeat the Will.

c) Issue 2: Whether formal proof of the Will must proceed by way of trial on the grounds that there is a genuine issue for trialor whether formal proof of the Will may be granted summarily? [52] There is agreement between the parties as to the applicable law, but disagreement as to the application of the facts to the law. i.

Law Burden of Proof [53] The Supreme Court of Canada in Vout v Hay, (SCC), [1995] 2 SCR 876 settled the law with respect to whobears the burden of proving testamentary capacity at paragraphs 26 - 27: Although the propounder of the will has the legal burden with respect to due execution, knowledge and approval, and testamentarycapacity, the propounder is aided by a rebuttable presumption.

Upon proof that the will was duly executed with the requisite formalities,after having been read over to or by a testator who appeared to understand it, it will generally be presumed that the testator knew andapproved of the contents and had the necessary testamentary capacity. Where suspicious circumstances are present, then the presumption is spent and the propounder of the will reassumes the legal burden ofproving knowledge and approval. In addition, if the suspicious circumstances relate to mental capacity, the propounder of the willreassumes the legal burden of establishing testamentary capacity.

Both of these issues must be proved in accordance with the civilstandard. There is nothing mysterious about the role of suspicious circumstances in this respect. The presumption simply casts anevidentiary burden on those attacking the will. This burden can be satisfied by adducing or pointing to some evidence which, if accepted,would tend to negative knowledge and approval or testamentary capacity. In this event, the legal burden reverts to the propounder. [54] Suspicious circumstances are defined as "any circumstances surrounding the will which individually or cumulatively cast

doubt upon the testator's capacity to make to a will or his knowledge and approval of the will's contents": Popke v Bolt, 2005 ABQB 214at para 283, aff’d 2006 ABCA 338 citing MM Litman & GB Robertson, "Solicitor's Liability for Failure to Substantiate TestamentaryCapacity" (1984) 62 Can Bar Rev 457 at 470. Elements of Testamentary Capacity [55] The test for testamentary capacity was established in the seminal case of Banks v Goodfellow (1870), [1869-70] LR 5 QB549.

The test was restated by by Laskin, JA, as he then was, in his dissent in Re Schwartz (1970), (ON CA), 10 DLR(3d) 15 (Ont CA) at 32 , aff'd (1971), (SCC), [1972] SCR 150 and quoted with approval in various decisions fromAlberta courts: The testator must be sufficiently clear in his understanding and memory to know, on his own, and in a general way (1) the nature andextent of his property, (2) the persons who are the natural objects of his bounty and (3) the testamentary provisions he is making; and hemust, moreover, be capable of (4) appreciating these factors in relation to each other, and (5) forming an orderly desire as to thedisposition of his property. [56] Testamentary capacity is a legal construct, medical evidence is not required: Stevens v Morrisroe, 2001 ABCA 195 at paras19-20, leave to appeal to SCC refused, [2001] SCCA No 483. [57] Testamentary capacity is time specific and task specific.

The relevant time period to assess capacity is the time of givinginstruction and the time of executing the will: Stevens v Morrisroe at para 17. This Court stated in Re Weidenberger Estate, 2002 ABQB861 at paragraph 28: What the Deceased's state of mind was one year before or one year after the date of the document is not overly relevant.

The courts haverecognized that a Deceased may only have temporary periods of rational and lucid behaviour, and in such moments, an individual maycompetently dispose of his or her estate. [58] A person may have capacity to instruct and execute a will, but not have capacity to undertake other tasks: Re WeidenbergerEstate at para 30 citing Banks v Goodfellow. [59] In

summary, all that is required to meet the threshold of testamentary capacity is a lucid interval at the relevant time, whereinthe testator is able to satisfy the five-part test described by Laskin, JA in Re Schwartz. ii. Analysis [60] The Respondents assert that there is a genuine issue as to whether the Deceased had testamentary capacity. The areas ofconcern can be organized into the following categories: A.

The presumption of testamentary capacity cannot arise [61] The Respondents argue that there is inconsistent evidence regarding whether the entire Will was read to or by the Deceasedand there is no affirmative evidence on whether the Deceased was wearing glasses. The Respondents state in their affidavits that theDeceased required glasses to read. [62] There is no issue of whether the Will satisfies the formalities of the Wills and Succession Act, SA 2010, c W-12.2. [63] The Applicant relies on Mr.

Dunlop’s affidavit, wherein he relied on both his usual practice and his specific recollection, tostate that the entire Will was read to or by the Deceased. On questioning, Mr. Dunlop described this as a “back and forth” where Mr.Dunlop would read some of the Will out loud, he would see the Deceased reading along so he would stop reading, let the Deceased readit, ask questions, and then continue reading. Mr. Dunlop asked the Deceased questions while the Deceased read the Will such as “Is thatwhat you want?” and “Do you understand it?” Mr.

Dunlop was satisfied that the Deceased understood the contents of the Will. [64] The Respondents have failed to point to any evidence that conflicts with Mr. Dunlop’s affidavit and evidence at questioning.The Respondents argue that Mr. Dunlop provided inconsistent evidence when questioned on his affidavit. I do not agree. Mr. Dunlop’sevidence remained consistent: the complete Will was read to or by the Deceased. Further, there is no available evidence that will make itany clearer to a trial judge whether the Deceased was wearing glasses. B. The Deceased made inaccurate statements to Mr.

Dunlopon May 15, 2015 [65] The Respondents allege that the Deceased made various inaccurate statements to Mr. Dunlop on May 15, 2015, and that theseinaccurate statements are evidence that he did not have testamentary capacity. [66] With respect to the statements that he was a widower, had seven grandchildren, and the Applicant’s name was Anna - none ofthese raise a genuine issue as to whether the Deceased had testamentary capacity. The Supreme Court of Canada’s guidance in Larameev Ferron (1909), (SCC), 41 SCR 391 at 409 is instructive: We must be careful not to substitute suspicion for proof.

We must not by an extensive doing so render it impossible for old people to

make wills of their little worldly goods. The eye may grow dim, the ear may lose its acute sense, and even the tongue may falter at names and objects it attempts to describe, yet the testamentary capacity be ample. To deprive lightly the aged thus afflicted of the right to make a will would often be to rob them of their last protection against cruelty or wrong on the part of those surrounding them and of their only means of attracting towards them such help, comforts and tenderness as old age needs. [ 67 ] The Respondents submit that these errors suggest that the Deceased may have been delusional.

There is no evidence that the Deceased was delusional. I find that these errors do not indicate a loss of testamentary capacity. [ 68 ] With respect to the Deceased’s use of the word “estranged”, I find that this is not indicative of a loss of testamentary capacity. The Respondents admit that they each had a difficult relationship with the Deceased from when they were teenagers. Further, none of the Respondents knew that the Deceased was in a hospice until a neighbour alerted them to that fact. There is no evidence available that will make it any clearer at trial what the Deceased meant when he said “estranged”.

What is clear, however, is that the Deceased’s decision to exclude the Respondents from the Will is consistent with a negative attitude towards the Respondents that he had expressed to both the Applicant and Mr. Dunlop. [ 69 ] The Respondents also allege that the Deceased failed to give a proper description of the extent of his estate. This is not founded in the evidence. The Deceased gave a very close approximation to the inventory of his property and debts. [ 70 ] The Respondents allege that the Deceased exhibited irrational anger towards the Respondents in his conversations with Mr. Dunlop.

This is not found in the evidence. There was clearly a difficult relationship between the Deceased and the Respondents, the Respondents confirmed this in their affidavits and during questioning. C. The Deceased’s medical condition [ 71 ] The Respondents allege that there is a possibility that the Deceased was taking medication that could have adversely affected his testamentary capacity. They point to a voicemail from the social worker to Mr. Dunlop left sometime between May 19 and 28, 2015.

In the voicemail, the social worker states her concern about the Deceased’s ability to sign a codicil due to medication that he was taking that could make him “groggy”. [ 72 ] The voicemail is consistent with Mr. Dunlop’s evidence that when he attempted to have the Deceased execute the codicil on May 28, 2015, he concluded that the Deceased did not have testamentary capacity. This is evidence that, on the date she left the voicemail, the social worker appears to have been alive to the issue of testamentary capacity.

Further, there is no evidence that the social worker had concerns regarding the Deceased’s capacity on May 15, 2015 when she initially met Mr. Dunlop. [ 73 ] The Respondents’ allegation is unsupported by any medical evidence. The burden is on the Respondents to point to evidence that creates a genuine issue for trial. The Respondents failed to take reasonable steps to obtain medical evidence and they failed to point to any evidence that the Deceased’s medical condition caused him to no longer have testamentary capacity. D. Mr.

Dunlop’s alleged failure to substantiate testamentary capacity [ 74 ] The Respondents rely on Murphy v Lamphier , [1914] 31 OLR 287 (HC) , aff’d [1914] OJ No 102 (CA) in arguing that Mr. Dunlop failed his duties. In that case, the trial judge stated at 319-20: A

summary of the solicitor’s duties in general, condensed from Hayes and Jarman’s Concise Forms of Wills, is well given by Barry in his Conveyancing, 1872, p.36, thus: “Instructions for a will should be taken from the testator himself, and full inquiry should be made as to his personal position and that of his family, and of the objects of his bounty, and as to the nature and extent of his property.”[...] To these suggestions I would add that in dealing with people needing protection and advice it is important to find out if there be a former will, and its nature, with a view of getting at the reasons for any variation or changes therefrom, if such changes be contemplated. [ 75 ] Mr.

Dunlop questioned the Deceased about his ex-wife and the relationship the Deceased had with his children. Mr. Dunlop questioned the Deceased about his assets and debts through the use of a questionnaire. [ 76 ] Mr. Dunlop asked the Deceased whether he had previously made a will, and the Deceased replied that he did not. In Murphy v Lamphier , the Court required “clear proof of capacity” because the impugned will was the last in a series and was “in remarkable contrast to all that preceded it” (at 289 and 291-92).

The circumstances here are quite different from those in Murphy v Lamphier . [ 77 ] On the afternoon of May 15, 2015, Mr. Dunlop made a note that there was “[n]o issue re capacity.” Mr. Dunlop swore an Affidavit of Witness to the Will swearing to Mr. Zukas’ testamentary capacity. Mr. Dunlop swore an affidavit wherein he states that his usual practice is to inquire into a series of areas to determine if a testator has capacity, and he did so on May 19, 2015. [ 78 ] The Respondents allege that Mr. Dunlop failed to test the extent and reliability of the Deceased’s memory and that Mr.

Dunlop was not aware of the legal test for testamentary capacity. During questioning on his affidavit, Mr. Dunlop stated that testamentary capacity means: He knows the nature and effect of what he’s doing, that he understand his moral obligations, his legal obligations, and he knows his estate, the value of his estate.

[ 79 ] I do not find, as the Respondents suggest, that this indicates that Mr. Dunlop failed to assess testamentary capacity from the “correct perspective” or failed to ask the “correct questions”. The law does not mandate a set of “correct questions” for a solicitor to ask. Nor does the law require that a Deceased have a perfect memory. The law requires the five elements listed by Laskin, JA in Re Schwartz . [ 80 ] I find that Mr. Dunlop took reasonable steps and made sufficient inquiries into the Deceased’s testamentary capacity. E.

The Deceased’s behaviour prior to May 2015 [ 81 ] The Respondents allege that the Deceased exhibited unusual behaviour in the years prior to his death and that this is evidence that the Deceased lacked testamentary capacity. The Respondent Patricia Zachary and five of the Deceased’s neighbours observed this unusual behaviour. The allegations pertain to observations that the Deceased was demanding of a neighbour’s time, yelled at neighbours, was rude and unpleasant, began to dress “shabbily”, and let his vehicle fall into disrepair. [ 82 ] The Deceased was 84 years old at the time of his passing and lived alone.

The Respondents confirmed that they were never contacted by the police regarding the Deceased’s behaviour during this time. The Respondents did not take any steps once they noticed a change in his behaviour. [ 83 ] The Respondents allege that the Deceased’s behaviour is evidence of an underlying condition that affected his ability to make a testamentary distribution. The observations regarding the Deceased’s behaviour in the years prior to his death are not probative of whether the elements of testamentary capacity established in Re Schwartz were present on May 15, 2015 or May 19, 2015.

I do not accept that there is any evidence that the Deceased lacked testamentary capacity. Conclusion [ 84 ] The burden is on the Respondents to establish that there is a genuine issue to be tried. A genuine issue requires an evidentiary foundation. I find that the Respondents have failed to establish a genuine issue that is well-grounded in the evidence. [ 85 ] It is not necessary to hear the testimony of several witnesses, therefore a trial is not required pursuant to rule 83(1) (

a) of the Surrogate Rules . There is no conflicting affidavit evidence, therefore a trial is not necessary to assess credibility. The only conflicting evidence pertained to the allegations of a pre-existing will, and I have found those allegations inadmissible. [ 86 ] The Applicant has discharged her burden of proof on the presumptive standard. The Respondents have failed to tender evidence that suspicious circumstances exist in this case.

Notwithstanding that I find that there are no suspicious circumstances in this case, I find that the Applicant has met the burden of establishing testamentary capacity on the balance of probabilities. [ 87 ] The evidence of Mr. Dunlop is strong evidence that at the time the Deceased gave instructions for the Will and at the time of execution, the Deceased had testamentary capacity. The following evidence supports this conclusion: i. The Deceased knew the extent of his estate. He was able to list all of his assets and estimated their value to within a few thousand dollars. ii.

The Deceased knew that his ex-wife had passed away. iii. The Deceased understood that he had children and turned his mind to whether he wished to leave them anything. He referenced incorrect law when he stated thought that if he left them $100 and a printer they could not dispute the will. Upon receiving legal advice from Mr. Dunlop, he decided to leave them nothing. iv. The social worker at the hospice was alert to the issue of testamentary capacity and was aware that the Deceased could lose it in certain circumstances.

There is no evidence that the social worker had concerns about the Deceased’s testamentary capacity on May 15, 2015 or May 19, 2015. v. Mr. Dunlop took reasonable steps to assess testamentary capacity, signed an affidavit confirming that the Deceased had testamentary capacity, and refused to execute a codicil after concluding that the Deceased had lost testamentary capacity. vi. The Will implements the Deceased’s instructions. [ 88 ] All that is required of a testator is a lucid interval. The Respondents have failed to identify any evidence that overwhelms Mr.

Dunlop’s assessment that the Deceased, at the time of giving instructions and on the date of execution, had testamentary capacity. [ 89 ] The Respondents argued that the Deceased’s estate contained assets that would normally be passed on to successive generations. While the decision of the Deceased to leave his entire estate to the Applicant may seem unfair to the Respondents, that is not a basis to find that the Will was made without testamentary capacity. [ 90 ] The application is granted.

The Will is formally admitted to probate as the valid last will of the Deceased, a grant of probate is issued to the Applicant, all objections to the grant of probate are summarily dismissed, and all caveats filed by any of the Respondents are discharged. Costs [ 91 ] If the parties are unable to agree on costs they may make an application with regard to same.

Heard on the 22 nd day of July, 2016. Dated at the City of Calgary, Alberta this 18 th day of October, 2016. J.T. McCarthy J.C.Q.B.A. Appearances: Monique Morin for the Applicant C.M. Smith for the Respondents _______________________________________________________ Corrigendum of the Reasons for Judgment of The Honourable Mr. Justice J.T. McCarthy _______________________________________________________ 1. On Page 3, paragraph 12, line 4 – Mr. Dunlop was changed to Mr. Zukas. 2. On Page 11, paragraph 77, line 2 – Mr. Dunlop’s was changed to Mr. Zukas’.