McNeill Estate (Re), 2016 ABQB 645

Court of Queen’s Bench of Alberta Citation: McNeill Estate (Re), 2016 ABQB 645 Date: 20161121 Docket: ES01 114782 Registry: Calgary Between: Mary-Jane Gray Applicant - and - Glen Norman Mcneill Respondent _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice J.T. McCarthy _______________________________________________________ Introduction [ 1 ] Michelle Molly McNeill was an avid hiker who died on July 2, 2013. She died when she fell from a mountain while hiking near Canmore, Alberta. She was 45 years old at the time.

After her passing, an issue arose as to which of two wills governs the disposition of her estate. [ 2 ] The Applicant Mary-Jane Gray is the mother of the deceased Michelle Molly McNeill. She applies to this Court for validation and rectification of a will allegedly signed by the deceased dated August 22, 2011, which named her as the executor, and sole beneficiary of the estate (the “2011 Will”). The Applicant states that she and a friend were present when the 2011 Will was made by the deceased on a laptop computer at the Applicant’s kitchen table, with the friend acting as witness.

The 2011 Will is problematic as only a

photocopy has been found, and the will was witnessed by one person instead of two. [ 3 ] The Respondent Glen Norman McNeill is the ex-husband of the deceased. He applies for an order declaring the 2011 Will invalid, alleging it is a forgery. He seeks an order directing grant of probate of a will executed by the deceased on August 30, 2006, which names him as executor and beneficiary (the “2006 Will”). The 2006 Will was made when the deceased and Glen McNeill were still married, with the assistance of a lawyer.

Glen McNeill states that the deceased told him the 2006 Will was still valid in January 2013, which was two years after their divorce and a few months before she died. He states that he and the deceased were still on friendly terms and the deceased was still in possession of the proceeds of a sale of their home. [ 4 ] An Order was granted by the Court on March 24, 2015 directing that a hearing be held with oral evidence to determine the following specific issues: 1.

Whether a will signed by the deceased dated August 22, 2011 (the “2011 Will”) revoked a will previously signed by the deceased on August 30, 2006 (the “2006 Will”), pursuant to section 23(1) (

a) of the Wills and Succession Act (the “WSA”); 2. Whether the deceased revoked the 2006 Will; 3. Whether the 2011 Will can be determined to be valid as the deceased’s last will, despite that the 2011 Will was not made in accordance with

section 15 of the WSA , pursuant to

section 37 of the WSA; 4. If the 2011 Will is determined to be valid pursuant to

section 37 of the WSA , whether the Court will accept the copy of the 2011 Will that was found on the deceased’s death to be submitted for probate as the original copy of the 2011 Will; 5. If the 2011 Will is determined to not be valid as the deceased’s last will pursuant to

section 37 of the WSA , whether the Court can rectify the 2011 Will by adding such words as are necessary to show that the 2011 Will was made in accordance with the WSA, pursuant to

section 39 of the WSA; 6. If the 2011 Will is determined to not be valid as the deceased’s last will pursuant to

section 37 of the WSA , and the Court rectifies the 2011 Will by adding such words as are necessary to show that the 2011 Will was made in accordance with the WSA pursuant to

section 39 of the WSA, whether the Court can validate the disposition made in the 2011 Will by the deceased to the individual who acted as a witness to the signature of the deceased, pursuant to

section 40 of the WSA; 7. If the 2011 Will is determined to not be valid as the deceased’s last will pursuant to

section 37 of the WSA , and the 2011 Will is rectified pursuant to

section 39 of the WSA, and the disposition to the witness is validated pursuant to

section 40 of the WSA, whether the Court will accept the copy of the 2011 Will that was found on the deceased’s death to be submitted for probate as the original copy of the 2011 Will; 8. If the 2011 Will is determined not to be valid pursuant to

section 37 of the WSA , and if the 2011 Will is rectified pursuant to

section 39 of the WSA and the disposition to the witness is validated pursuant to

section 40 of the WSA, and the Court will not accept the copy of the 2011 Will that was found on the deceased’s death to be submitted for probate as the original copy of the 2011 Will, then the applicant will apply to formally prove the 2011 Will pursuant to

Part 2, Division 3 of the Surrogate Rules (the “Surrogate Rules”); [ 5 ] The Order provides that after hearing the oral evidence pertaining to these issues, this court has the discretion to make a final order of judgment on the specified issues: 3. The judicial determination of the issue(

s) for which oral evidence is permitted by this Order may, in the discretion of the Justice presiding at the hearing, result in a final order of judgment on that/those issues. Statement of Agreed Facts, Exhibits and Issues [ 6 ] The parties presented the Court with an Agreed Statement of Facts, Exhibits and Issues. Facts The Parties [ 7 ] Michelle Molly McNeill died when she fell while hiking in Canmore on July 2, 2013. She was 45 years old. [ 8 ] For the 5 years preceding her death, Michelle had been living with her mother, Mary-Jane Gray, at Mary-Jane’s home in

Calgary. [ 9 ] Glen McNeill is Michelle’s ex-husband. They were married in July 1992 and were divorced in February 2011. [ 10 ] The Wills [ 11 ] Michelle’s will that is sought to be validated and probated is dated August 22, 2011. Mary-Jane is named therein as the executor and sole beneficiary.

The original will is missing; this application seeks to validate and probate a copy. [ 12 ] Michelle had an older will dated August 30, 2006, by which she left the residue of her estate to her then spouse, Glen, failing which to their children, if any (they had none), failing which to Mary-Jane. [ 13 ] There is an essentially identical will of the same date by which Glen left the residue of his estate to his then spouse, Michelle, failing which to any children, failing which to Mary-Jane.

Mary-Jane was named as an alternative executor in both of the August 30, 2006 wills, which were prepared by a lawyer. [ 14 ] There is also another will dated August 22, 2011, prepared by Mary-Jane, by which she named Michelle as executor, and left the residue of her estate equally to Michelle and to her brother Cory. No lawyer was involved in the preparation of either August 22, 2011 will. [ 15 ] The evidence of Mary-Jane and of the witness to the August 22, 2011 wills, Benjamin Cook, is that they were made on August 23, 2011, as reflected in his diary.

Events After Michelle’s Death [ 16 ] Michelle’s memorial service was held on July 12, 2013. [ 17 ] On July 19, 2013, Glen’s lawyer wrote to Mary-Jane. [ 18 ] On August 2, 2013, Glen’s lawyer and Mary-Jane’s lawyer exchanged emails. [ 19 ] Glen alleges that Michelle’s 2011 will is a forgery, so in August 2014 the parties jointly engaged Iain Kenny of MNP LLP to examine and analyze Michelle’s laptop computer. His report is submitted by consent. [ 20 ] Michelle’s estate is worth approximately $735,000.

Exhibits [ 21 ] The parties submitted the following Exhibits: Wills Last Will and Testament of Michelle Molly McNeill dated August 22, 2011 Last Will of Molly Michelle McNeill dated August 30, 2006 Last Will of Glen Normal McNeill dated August 30, 2006 Last Will and Testament of Mary-Jane Gray dated August 22, 2011 Excerpt of Benjamin Cook’s diary dated August 22 and 23, 2011 Divorce Statement of Claim for Divorce filed July 21, 2010 Divorce Judgment granted January 21, 2011 Certificate of Divorce dated February 23, 2011 Other Documents Funeral Director Statement of Death dated July 5, 2013 Memorial Service tribute dated July 12, 2013 Letter from Derer Law to Mary-Jane Gray dated July 19, 2013

Email chain between Armstrong Law and Vogel LLP dated August 2, 2013 Report of Iain Kenny of MNP LLP dated August 21, 2014 Agreed Issues [ 22 ] Michelle’s 2011 will does not comply with the formal requirements of the Wills and Succession Act , SA 2010, c W-12.2. Only a photocopy of it survives, and only one witness signed. Mary-Jane applies to validate the non-complaint will pursuant to

section 37 of the Act , and to have it admitted to probate pursuant to the Surrogate Court Rules . Glen opposes, and applies for a grant of probate of Michelle’s 2006 will. [ 23 ] The parties have presented the following issues to the Court: (

a) Should the Court validate Michelle’s 2011 will? (

b) Should the Court admit to probate a copy of Michelle’s 2011 will? (

c) If the answer to either or both of questions (

a) and (

b) is “no”, a further issue arises – did Michelle revoke her 2006 will? (

d) If the answers to questions (

a) and (

b) is “yes”, or if the answer to question (

c) is “yes”, a final issue arises – is Glen a valid creditor of Michelle’s estate, either by a Matrimonial Property Act claim for division of property or by a claim of loan? Evidence [ 24 ] I heard oral evidence from six witnesses at the hearing: Mary-Jane Gray, mother to the deceased; Benjamin Cook, a friend to Mary-Jane Gray and the deceased; Ron Bell, a close friend of the deceased; Glen McNeill, the ex-husband of the deceased; Bob Gray, father to the deceased; and Cory Gray, brother to the deceased. [ 25 ] A

summary of each person’s evidence follows. Mary-Jane Gray [ 26 ] Mary-Jane Gray is the mother of Michelle Molly McNeill. She and her ex-husband Robert Gray also have a son, Cory Gray. She provided the court with an overview of Michelle’s life, and in particular discussed the last five years of Michelle’s life, which were spent living in Mary-Jane’s home. [ 27 ] Michelle was born and raised in Calgary. She graduated from high school and went on to complete nursing school in Calgary. She married Glen McNeill in 1992, at the age of 24. Shortly after the wedding, Michelle and Glen moved to Virginia for Glen’s work.

They lived in Virginia for several years and then moved to Burlington, Ontario. Michelle did not work while they lived in Virginia or Ontario. Michelle had stomach and health problems from her late teens on. She had bulimia and chemical sensitivities. She took various steps to improve her health and ate a very healthy diet, but always struggled. [ 28 ] Michelle and Glen remained in Ontario until 2006, when they moved to China where Glen had been travelling frequently for his work designing car parts. When they moved to China they left various items in Mary-Jane’s home, including a chesterfield and numerous boxes.

Michelle assisted Glen with his business while they lived in China. [ 29 ] Michelle came to live with Mary-Jane on July 1, 2008, while Glen remained in China. At the time she was content to remain married while the two led mostly separate lives. Glen and Michelle purchased a home together in Calgary in the summer of 2010. Michelle planned to move in with Glen’s assistance in the summer of 2010, after which Glen would return to China. [ 30 ] During her time in Calgary, Michelle pursued hiking as a hobby and became friends with another hiker named Ron Bell.

Eventually their relationship turned romantic, even though they were both married to other people. When Glen arrived in Calgary to assist with the move to the new house, Michelle informed him that she wanted a divorce. They were divorced in January 2011. [ 31 ] Mary-Jane testified that Michelle and Glen continued to be in contact with each other, and on friendly terms, after the divorce. They communicated through emails and Skype. [ 32 ] While Michelle was living in Calgary with Mary-Jane, she developed persistent dizziness and went through various medical tests. By September of 2012 the dizziness was severe.

Michelle woke up one morning partly paralyzed on one side and was rushed to hospital. She was diagnosed with Ramsay Hunt disease and suffered for a number of months at home, with Mary-Jane acting as her caregiver while she recovered.

[ 33 ] Mary-Jane testified that during the five year period that Michelle lived in Calgary, Michelle worked for two employers. However, due to her poor health she worked less than half of the five year period. One of her employers was the Cooperators, where Mary-Jane is also employed. Michelle began contributing to a pension during her employment there and named Mary-Jane as her beneficiary. [ 34 ] Mary-Jane described her relationship with Michelle as close. Michelle was her companion and best-friend.

Mary-Jane admitted she and Michelle had some difficulties living together as adults and that she encouraged Michelle to move out on her own. Michelle did buy two homes after her divorce so she could move out and be more independent; however in both cases Michelle did not move in to the homes and sold them. [ 35 ] Mary-Jane explained that she called Michelle “Miss Molly” when she was younger. Michelle adopted this nickname when she moved to Ontario and went by the name Molly. Michelle decided to legally change her name to Molly Michelle McNeill at that time.

Later, when she moved back to Calgary, her extended family and friends were used to calling her Michelle, so she officially changed her name again, to Michelle Molly McNeill. [ 36 ] In this judgment I have chosen to refer to Michelle/Molly by the name she was called by the witness testifying, and as Michelle Molly during my findings on the case. The Wills [ 37 ] Mary-Jane stated that while they lived together, Michelle would discuss from time to time the fact that they should both get wills. Mary-Jane knew that Michelle and Glen had prepared wills in 2006.

Mary-Jane had never written a will, nor had one prepared by a lawyer. [ 38 ] On August 22, 2011, Mary-Jane was off work and Michelle was hiking on a multi-day “hut trip” to Lake O’Hara. Mary-Jane decided to take the opportunity to write her will. She started handwriting her will on a piece of paper, writing down the date and “Last will and testament of Mary-Jane Gray”. She then put it aside on the kitchen table as she was uncertain what else to write. [ 39 ] Michelle returned home from her trip the next evening, on August 23, 2011. That same evening, Mary-Jane’s friend Ben Cook came over for tea.

It was his first time to Mary-Jane’s home and she recalled give him directions. Mary-Jane, Michelle and Ben Cook sat around the kitchen table and discussed the hiking trip. Talk turned to the will that Mary-Jane had commenced writing. Michelle decided this was a good opportunity for her to prepare her will, as they could both have Ben Cook act as a witness. [ 40 ] Mary-Jane recalled receiving some advice from Ben Cook on the wording of her will, which she completed in her own handwriting. She signed her will and gave it to Ben Cook to witness.

Mary-Jane testified that Michelle then used Mary-Jane’s will as a template and typed her will into her laptop computer. Following this, Michelle printed a copy of her will upstairs where her printer was located, then brought it down to the kitchen table where she signed it and Ben Cook witnessed it. Michelle then returned upstairs and made copies of her will and Mary-Jane’s will. Mary-Jane stated that Michelle kept her original of the will and gave Mary-Jane a copy. [ 41 ] Mary-Jane testified that she asked Michelle about her 2006 will that evening.

Michelle responded that she would give Glen a copy of the new will. Michelle then went downstairs to retrieve a copy of her 2006 will. She returned upstairs with the will and ripped it up in front of Mary-Jane and Ben Cook, commenting that it was now “null and void”. [ 42 ] Mary-Jane confirmed that the signing of the wills took place on August 23, 2011, even though both wills are dated August 22, 2011. [ 43 ] A copy of Michelle’s 2011 Will was entered as an exhibit. The text of the will is as follows: August 22, 2011 To Whom it May Concern: Last Will and Testament of Michelle Molly McNeill.

I being of sound mind and body appoint my mother Mary-Jane Gray as my executor of my Estate. I bequeath 100% on my possessions which include my home, car, furniture, bank accounts and all my personal possessions to my mother Mary-Jane Gray. Signed this 22 day of August, 2011. Signature: (signed Michelle Molly McNeill) Witness: (signed Benjamin Cook) [ 44 ] Mary-Jane’s will was also entered as an exhibit. It contains almost identical language, though it appoints Michelle as executor and bequeaths her possessions 50% to Michelle and 50% to her son Cory.

[ 45 ] Mary-Jane stated that after she and Michelle created these wills, they discussed from time to time the fact that they should also get “proper wills” drawn up. [ 46 ] Mary-Jane stated that Ben Cook has continued to be a good friend to her; they grew closer after Michelle’s death as he was part of her support system. She denied any romantic involvement between them. Events after Michelle’s Death [ 47 ] Michelle went hiking on July 2, 2013 in the Canmore area. Mary-Jane recalled that Michelle left early in the morning and was to return for an appointment later in the day.

Ben Cook was at Mary-Jane’s home that day to stain her deck. Mary-Jane sensed that something was wrong in the afternoon and called the RCMP around 5pm. She also called the police and Parks Canada. In the evening, Parks Canada told Mary-Jane they had found Michelle’s vehicle in the Yamnuska parking lot, but it was already dark and they could not commence a search until it was light. The next morning the police came in person to Mary-Jane’s home to inform her they had found Michelle’s body. [ 48 ] Mary-Jane testified that she was not able to function after Michelle’s death and characterized herself as a “mess”.

Her sister and Ron Bell helped to arrange the memorial service. Mary-Jane recalled showing her copy of the 2011 Will to Michelle’s bank, but did not recall providing it to the funeral home or being told by the funeral home that it was problematic. Mary-Jane took a few weeks off of work and attended grief counselling. [ 49 ] A week after the service, Mary-Jane received a letter from a lawyer acting for Glen McNeill. The letter suggested that the 2011 Will was incomplete, irregular and invalid.

After Mary-Jane received this letter, she made a thorough search for the original of the will, looking in Michelle’s filing cabinet, her drawers, and under her mattress. She also looked through Michelle’s boxes, but could not locate the will. Mary-Jane was surprised that she could not find the will as Michelle was generally well-organized. [ 50 ] A legal dispute over the validity of the 2011 Will thus ensued. [ 51 ] Mary-Jane was asked about the MNP Report dated August 21, 2014. MNP analyzed Michelle’s laptop computer and attempted to identify the existence of a document dated August 22, 2011 (the 2011 Will).

MNP found no evidence that the will document “exists, previously existed or was created on [the] computer.” Their analysis determined the computer’s operating system was reinstalled on January 26, 2014. The reinstallation resulted in log files and installed software being dissociated from the new installation, and numerous files being overwritten. [ 52 ] Mary-Jane admitted that she had Michelle’s laptop erased on January 26, 2014, which was three days before her scheduled Cross-Examination on Affidavit in these proceedings.

She recalled going to a number of computer stores and asking them to delete the contents of the computer. Eventually she found a place that was willing to do so. [ 53 ] Mary-Jane denied she erased the computer’s contents to remove evidence relating to the will. Her evidence was that her concern was protecting Michelle’s privacy, especially in relation to her affair with Ron Bell and the fact that she was on dating websites. Mary-Jane could not recall if she had the computer erased before or after receiving a call from her lawyer asking her to bring the computer to her Examination.

She admitted that she did not ask her lawyer first about the computer, even though these proceedings had commenced. She did recall her lawyer telling her, after the computer wipe, that MNP would be able to find anything. [ 54 ] It was suggested to Mary-Jane that the 2011 Will was not created by Michelle, an allegation she denied. Benjamin Cook [ 55 ] Benjamin Cook testified that he met Mary-Jane Gray when they were both hiking on Sulpher Mountain in early 2011. They became friends and went on various hikes together.

He also met Michelle and she stayed at his townhouse in Canmore twice while taking alpine training courses. The three of them also hiked together on one occasion, and often visited together. [ 56 ] Ben Cook stated that by August of 2011, he considered Mary-Jane and Michelle to be new friends. On August 23, 2011 he came to Calgary to do some shopping and errands. He called Mary-Jane after supper and she invited him over for tea. It was his first time at her house. [ 57 ] Ben Cook recalled that he, Mary-Jane, and Michelle sat around the kitchen table and that Michelle had her laptop.

They talked about Michelle’s recent hiking trip to Lake O’Hara. Eventually, Mary-Jane mentioned that she was working on her will. Ben recalled that Michelle decided to also make up a will that evening. He advised Mary-Jane and Michelle to keep the wills simple. Ben recalled that Mary-Jane finished writing her will first and he signed it as a witness. Mary-Jane then passed her will to Michelle and Michelle started typing on her laptop. When she was done writing her will, Michelle had to go upstairs to print it off. Following this, Michelle signed the will and Ben signed as a witness.

Ben recalled Michelle making copies of both wills after they were signed, but could not recall what happened to the copies. [ 58 ] Soon after the wills were written, Ben Cook recalled Michelle discussing the fact that she had a prior will with her ex- husband. He remembered Michelle bringing a document up from downstairs, tearing it into pieces, and stating that it was null and void as she was divorced. She threw the pieces of paper in the garbage under the sink.

Michelle mentioned that she would send a copy of the new will to Glen, but Ben was unaware if she ever did so. [ 59 ] Ben Cook testified that he did not witness anything to suggest that Michelle or Mary-Jane exerted influence on each other that evening. He believes they were planning on getting other wills later. [ 60 ] At the hearing, Ben Cook was referred to a copy of a 2011 Diary, which was entered as an exhibit. He explained that the diary belonged to his former wife, who left him on February 15, 2011 after many years of marriage.

He explained that the event was traumatic and he started to write in the diary which she left behind. He put the diary away at the end of 2011, then found it again in early

2016 in a filing cabinet he rarely uses. [ 61 ] There is an entry in the diary for August 23, 2011. It states: Calgary MJ sign Wills MJ and Michele at MJ’s House Costco First Time Bow Bottom Trial [sic] Home 1:00 am Late Tired [ 62 ] When referred to this document, Ben Cook did not have a specific memory of writing the words, though he believes he wrote in the diary the morning after August 23, 2011. [ 63 ] When asked about the relationship between Mary-Jane and Michelle, Ben stated that they were very close and that Mary-Jane did a lot for Michelle when she was not well.

They did argue at times, but they always quickly reconciled. [ 64 ] Ben Cook testified that he continued to be friends with both Mary-Jane and Michelle after this date. He recalled being with Mary-Jane the day Michelle died. He confirmed the details of that day. He stayed at Mary-Jane’s home praying with her and was there when the police arrived with the news that Michelle’s body had been found. He stayed with Mary-Jane for few days and tried to help her with her immense grief. She was inconsolable and could not eat. [ 65 ] It was suggested to Mr.

Cook that the events of August 23, 2011regarding the wills did not occur, an allegation he denied. Ron Bell [ 66 ] Ron Bell testified that he met Michelle, who introduced herself as Molly, hiking in the summer of 2008. They encountered each other on other hikes that summer and eventually made plans to hike together. They hiked both on their own and as a part of groups, including with Molly’s mother Mary-Jane and her sister. Ron described Molly as a beautiful spirit who people liked to be around. [ 67 ] In the winter of 2008 and spring of 2009, Ron and Molly spent time together alpine skiing and snowshoeing.

Ron also introduced Molly to mountaineering which she took on with a passion. They took courses together and their relationship turned romantic by the spring of 2009. Ron Bell was candid in admitting that he was married at the time and was having an affair with Molly. [ 68 ] Ron testified that he and Molly maintained a close and romantic relationship until late 2010 to early 2011. Around that time Ron decided to stay in his marriage and they ended their relationship.

However they continued to communicate and be in contact on and off until Molly died. [ 69 ] Ron was aware that Molly and Glen remained in touch and were friendly after their divorce. He understood that they had divided their matrimonial property and that in doing so Molly retained the proceeds from their home. He recalled one time where Molly discussed the fact that Glen was asking for some of the money and she felt torn about what to do. He also recalled an incident where Molly was upset because Glen asked her for her engagement ring back as he was going to give it to someone in China.

The ring had sentimental meaning for her even though they had divorced. [ 70 ] During the time that Ron knew Molly, she was living at home with her mother Mary-Jane. Ron believed that they shared a deep friendship as mother and daughter and enjoyed spending time together. They did have some “scraps” around issues like the maintenance of the home. There were times when Mary-Jane encouraged Molly to be more independent and move out on her own. Molly was working towards that, when she bought two houses to move into after her divorce, however neither home worked out.

Overall, Ron believed Mary-Jane and Molly needed each other and maintained a close relationship. [ 71 ] Ron testified that the last time he spoke to Molly was a week or two before her death. She was bothered by a dental issue and discussed her summer plans with him. Ron heard about Molly’s death from her brother Cory. Ron was involved with preparations for the funeral service and spent a lot of time at Mary-Jane’s sisters’ home with the family. Mary-Jane was very distraught and incapable of doing much after the death.

He visited Mary-Jane at her home a few months after Molly’s passing and noted that the home was not as clean as usual and Mary-Jane appeared to be depressed. The 2011 Will [ 72 ] Regarding the 2011 Will, Ron Bell testified to a few relevant recollections. He remembered there was a period of time when Molly mentioned she knew she needed a new will and appeared to be researching the issue. She seemed to be aware of some of the law in Ontario and Alberta relating to wills and that there had been a recent change in the law.

She informed Ron that she would like her mother Mary-Jane to be the sole beneficiary of her will.

[ 73 ] Ron also recalled an incident where he went to pick up Molly for a mountaineering trip from her home and she told him she had prepared her will. She picked up a one-page document, which he could see was typed, and asked to talk about it. Ron, who was familiar with the preparation of wills, looked at the document and saw that it was only one page. He told Molly she should ask a lawyer for advice, not him. When shown a copy of the 2011 Will at the hearing, Ron indicated it could have been the document he was shown. He confirmed that Molly was not a person who would do things sloppily.

Glen McNeill [ 74 ] Glen McNeill is Michelle Molly McNeill’s former husband. They met through friends in Calgary in December 1990 and dated for eighteen months before marrying in July 1992. He too provided evidence about the legal name changes she went through, and indicated that he typically called her Molly. Glen described Molly as a gifted student who achieved high grades in nursing school and graduated on the Dean’s List. She was very literate and aspired to write a book one day.

She was a perfectionist who was well organized and detail-oriented in her personal life, including maintaining personal files and a personal calendar. [ 75 ] Glen McNeill is a mechanical engineer, working in the automotive industry. He confirmed the various moves that occurred during their marriage, including moving to Virginia in 1992, then back to Calgary in 1995 for a short period of time. The couple moved to Burlington, Ontario where they bought a home in 1996 and resided there until 2006.

They sold their home and moved to China in 2006 to allow Glen to pursue his developing business interests in that country. He described their relationship as loving and close. [ 76 ] Glen testified that during their marriage it was apparent that Molly struggled significantly with her health and bulimia. There were times when her weight was extremely low and she sought help over the years for the issue. Molly did not work in Virginia or Ontario, mostly due to her health issues. The fact that she did not work was not an issue for them in their marriage.

Molly did help Glen with his business in China because he started a factory and needed assistance. Molly helped with many facets of the business, including accounting and human resources. [ 77 ] Molly did not enjoy the industrial city in China that they were living in so decided to move back to Calgary in July 2008. Glen helped Molly to move to Calgary and into Mary-Jane’s home. She was still not in great health. Glen then returned to China for work. [ 78 ] Glen provided the court with evidence of Molly’s written communications to him during the years of 2009 and 2010.

The communications show that Molly’s relationship with her mother went through periods of tension and that Mary-Jane could be controlling, inconsiderate, and was not always forthright with others. [ 79 ] In one example, Molly described being out for a walk near the house when Mary-Jane pulled up in the car with a friend in the passenger seat. Mary-Jane advised Molly she had been grocery shopping and told her to come home to put the groceries away. Molly got in the backseat of the car and took the groceries into the house.

She put the groceries away while Mary-Jane and her friend drove off for an ice cream; then Molly resumed her walk. This was clearly a frustrating incident for Molly. [ 80 ] In an email in November 2009 Molly wrote the following: [ 81 ] I will go to MEC this morning. Just waiting for Mom to get out of the bath. She is crying this morning asking me how to account for the money going into her ING account and advising that she will say that they owed me money. I told it she cannot fabricate stories. Not interested in fighting with her today.

She wants me to go to her lawyers office with her tomorrow morning. [ 82 ] In an example from 2010, Molly wrote that Mary-Jane “has no control...she loves to fight... she is very critical...I am told I am bad every day”. [ 83 ] Glen testified that due to this tension, he and Molly decided to buy a home in Calgary in 2010 so that Molly could be independent and to give them a home base in Calgary. They used the money from the sale of their Burlington home for the purchase and Glen sent additional funds from his account in China.

The house was purchased outright without the need for a mortgage. [ 84 ] Glen recalled that he arrived in Calgary on June 19, 2010 and was anxious to see the home they purchased. The following day Molly informed Glen that she was having an affair with Ron Bell and wanted a divorce. Glen was reluctant to divorce but agreed to do so. They put the house up for sale and agreed to use an internet service called Untie the Knot for their divorce as there were no contentious issues between them. They agreed to split their assets equally and Molly indicated she did not want any support.

Glen was under the impression that Molly hoped to marry Ron Bell. She was in a hurry for the divorce and had Glen begin on the paperwork before he returned to China. [ 85 ] The house was sold by August of 2010 and the proceeds were deposited into Molly’s account in Canada with Glen’s agreement. Glen testified that Molly asked to continue to manage their funds and he agreed to the arrangement. Molly indicated she wanted to buy a home for herself and was aware that without work or much work experience she may have trouble getting approval for a loan.

Glen testified that he was willing to lend Molly the funds towards a home as they were still on friendly terms. He signed a release so that the funds from the house, which was held in joint tenancy, could be released into Molly’s account. The real estate lawyer’s ledger shows funds of $742,582.82 were deposited into Molly’s account. [ 86 ] The divorce was granted in January 2011. Glen indicated that he and Molly remained friendly and leaned on each other for emotional support after the divorce. He provided evidence of their written communications in the fall of 2010 and into 2011 that showed this to be true.

He continued to visit her when he came to Calgary. [ 87 ] Glen recalled a visit to Calgary where he saw Molly and gathered his belongings from Mary-Jane’s home in late August 2011. He planned this visit for after Molly’s hiking trip to Lake O’Hara, which he knew was from August 19 to August 23. They met up on August 26 and ran errands together. He gathered some of his boxes a couple of days later with the help of a friend. Glen admitted that he asked Molly about her engagement ring on this visit. Glen testified that Molly gave him the ring very happily and said it did not mean anything to her.

He felt there was no tension between them. However he admitted that their Skype conversations ended soon after

this visit. [ 88 ] Glen entered into a relationship with a woman from China sometime after the divorce and was living with her by January of 2012. [ 89 ] Glen testified that he visited Molly in January 2013 at Mary-Jane’s home and returned a necklace to her that was in his belongings. They discussed Molly’s diagnosis of Ramsay-Hunt and he told Molly about his new relationship. [ 90 ] When Molly died in July 2013, Mary-Jane called Glen to give him the news. He contributed photos and gave a eulogy at the funeral service.

Glen admitted that he was in rough shape at the funeral. [ 91 ] Glen recalled being introduced to Benjamin Cook at the funeral and understood that he was Mary-Jane’s boyfriend. Glen also spoke to Ron Bell and to Molly’s father, Bob Gray, at the service. It was here that the controversy over the wills first emerged. 2006 and 2011 Wills [ 92 ] Glen testified that in 2006, when he and Molly sold their Burlington, Ontario home their lawyer suggested they should have wills drawn up.

They were given forms with information to consider regarding bequests of their property and alternates to their named beneficiaries and executors. They provided this information to their lawyer who drafted mutual wills for them. Both wills named the other person as executor and beneficiary and provided that if both spouses died without surviving the other, and they had no children, Mary-Jane Gray would be the beneficiary of their estates. [ 93 ] Glen and Molly executed the wills with their lawyer and his assistant present.

The lawyer kept the original wills at his office and gave Molly and Glen each an unexecuted copy. [ 94 ] Glen testified that he was not aware that Molly had any will other than the 2006 Will prior to her death. He denied receiving a copy of the 2011 Will from Molly. Glen did not change his will after the divorce and believed the same was true for Molly. [ 95 ] In particular, Glen recalled a conversation with Molly on his visit to Calgary in January 2013, in which the issue of the will was raised.

Glen asked Molly to return his half of their matrimonial property, referring to half of the proceeds of the home which they had sold when divorcing in 2010. Glen testified that Molly indicated she had changed her mind and wanted to keep the funds. She told Glen her recent health scare with Ramsay-Hunt disease left her feeling vulnerable about her future. She remarked that Glen was healthy and would outlive her. Molly stated that the Ontario will was still in effect. Glen did not want to pressure Molly due to her health so did not pursue the issue further.

Molly died approximately five months later. [ 96 ] At the funeral service, Glen heard from Molly’s father, Bob Gray, that the funeral home was presented with a non-compliant will that was a brief document with only one witness. Glen was surprised as he believed the 2006 Will was still valid. He was uncertain what to do as he was the Executor under the 2006 Will and had no knowledge of the other will.

He consulted with a lawyer who wrote a letter to Mary-Jane approximately one week after the service, expressing concern over the fact that their matrimonial property had not been divided and his understanding that the 2006 Will reflected her testamentary intentions. [ 97 ] Glen testified that he first received a copy of the 2011 Will through his lawyer. He described his reaction to the document as one “bordering on laughing”. He does not believe that Molly would create a document such as the 2011 Will as she was educated, detail-oriented and her writing is clear and concise.

The document contains typographical errors and has only one witness. He believes Molly would have used the word “Executrix” to refer to Mary-Jane rather than “Executor”. He also believes Molly would have researched the law before writing the will and known two witnesses are required. [ 98 ] Glen was also suspicious about the will because he knew Molly was away hiking on August 22, 2011, the date on the will. Further, as Molly was well-organized with her record keeping it was odd that only a copy of the will was found.

Glen testified that Molly was the type of person who kept any potentially important documentation, recalling an incident where she kept a receipt for a lightbulb that came with a guarantee. Finally, Glen clearly recalled the conversation in January 2013 where Molly advised that the Ontario will was still valid. He believes that Molly was always fair and direct with him; she would have told him if she changed her will. [ 99 ] All of these oddities and irregularities led Glen to believe that the 2011 Will was forged by Mary-Jane.

He agreed that this accusation means he believes Mary-Jane and Ben Cook devised a plan to forge the will in the days after Michelle’s death, forged Ben Cook’s diary entry and lied to this court. Robert Gray [ 100 ] Bob Gray is the father of Michelle Molly McNeill. He provided the court with information about Michelle’s early years and to some degree the troubled relationship between he and Michelle’s mother, Mary-Jane. The family spent time in both Calgary and Lethbridge. Bob Gray described his daughter as being very smart and having a strong personality.

His relationship with Michelle in her adulthood was cool and distant at times. They had periods were they were not in contact very often. However, they had a few good visits in 2012 and Bob Gray recalled discussing Michelle’s amicable split from Glen. [ 101 ] In terms of the wills, Bob Gray was aware that Michelle and Glen had a will and described them as meticulous people. He recalled hearing that a second will surfaced after her death and that there was an issue with the will at the funeral home. Bob Gray eventually saw the 2011 Will a month or two later when Glen sent it to him.

His opinion is that his daughter did not write the 2011 Will. She was much too precise and articulate to produce a document like the 2011 Will. She was also aware of how wills worked due to her previous will with Glen. Cory Gray

[ 102 ] Cory Gray is Michelle Molly McNeill’s younger brother. He too provided the court with some background on his and Michelle’s early years. Michelle was protective of Cory and was often left in charge of him. Cory stated that after Michelle moved back to Calgary in 2008, he saw her from time to time. She confided in Cory about her affair with Ron Bell and discussed the difficulties she had living with their mother. [ 103 ] In terms of the wills, Cory recalled hearing about the 2006 Will around the time it was prepared.

Michelle was contemplating leaving something to his son if she and Glen passed away at the same time. They did not have any other discussions about wills. [ 104 ] Cory saw a copy of the 2011 Will for the first time a while after Michelle’s death through his father. After reviewing the 2011 Will at the hearing, Cory testified that his gut feeling is that the 2011 Will is not the work of his sister. Legal Framework [ 105 ] The Order directing this hearing provides me with the discretion to make a judicial determination on the issues after hearing the evidence.

In order to consider the evidence in its proper framework, it is helpful to review the applicable law. [ 106 ] Alberta’s new Wills and Succession Act , SA 2010, c W – 12.2 applies to wills made on or after the day the Act came into force, which was February 1,

Section 8 provides that the old Wills Act continues to apply in respect of wills made during the currency of the old Act, subject to certain exceptions set out in s. 8(2). Those exceptions include the use of extrinsic evidence when interpreting a will (s. 26), and the dispensing of formalities (s. 37-40) for wills where the testator’s death occurs after February 1, 2012. [ 107 ] In this case, as Michelle Molly McNeill died in July 2013, sections 26 and 37 to 40 apply when considering the 2006 Will and the 2011 Will.

These sections are particularly relevant in light of the 2011 Will, as it does not conform to the formal requirements for a valid will in Alberta. [ 108 ] Traditionally, the law required strict compliance with formal requirements such as having the will signed by the testator and acknowledged by two witnesses who were present at the same time. If these formalities were not met, the will was declared invalid. Under the new Act , there is a move away from strict compliance with the formalities.

Courts are now allowed to validate wills that would have failed under the former legislation, so long as there is substantial compliance with the formalities and the document sets out the testamentary intentions of the testator.

Section 37 of the Act states the following: Court may validate non-compliant will 37 The Court may, on application, order that a writing is valid as a will or a revocation of a will, despite that the writing was not made in accordance with

section 15, 16 or 17, if the Court is satisfied on clear and convincing evidence that the writing sets out the testamentary intentions of the testator and was intended by the testator to be his or her will or a revocation of his or her will. The relevant formality in this case is s. 15 of the Act , which requires a will to be signed by the testator in the presence of two witnesses who are both present at the same time and who each sign the will in the presence of the testator. Essentially the same requirement existed in the Wills Act , RSA 2000, c W-12, in

section 5 . Both are replicated below: Formal will 15 A will may be made by a writing signed by the testator if (

a) the testator makes or acknowledges his or her signature in the presence of 2 witnesses who are both present at the same time, and (

b) each of the witnesses signs the will in the presence of the testator Validity of will 5 Subject to sections 6 and 7, a will is not valid unless (

a) it is signed at the end or foot of it by the testator or by some other person in the testator's presence and by the testator's direction, (

b) the testator makes or acknowledges the signature in the presence of 2 or more attesting witnesses present at the same time, and (c) 2 or more of the attesting witnesses subscribe the will in the presence of the testator. [ 109 ] Another

section from the new Act that applies is s. 26, which sets out the duties of the court and the evidence which may be considered in interpreting a will. A court must consider the testator’s intentions and is allowed to hear evidence regarding the testator’s intent, evidence which was formerly more restricted under the common law: 26 A will must be interpreted in a manner that gives effect to the intent of the testator, and in determining the testator's intent the Court may admit the following evidence: (

a) evidence as to the meaning, in either an ordinary or a specialized sense, of the words or phrases used in the will, (

b) evidence as to the meaning of the provisions of the will in the context of the testator's circumstances at the time of the making of the will, and (

c) evidence of the testator's intent with regard to the matters referred to in the will. [ 110 ] Finally, in this case where there is only a photocopy of the 2011 Will, and the original executed copy is missing, rule 24 of the Surrogate Rules , AR 130/1995 applies:

24 If an original will is lost or destroyed but a copy or other evidence of it exists, the court may admit the copy or other evidence toprobate if (

a) the will is proved formally under Division 3 of

Part 2, or (

b) in the opinion of the court, the will can be adequately identified under this Part. Should the Court validate Michelle’s 2011 Will? [111] As noted, normally in order for a will to be valid in Alberta it must be signed by the writer in the presence of two witnesses,both present at the same time, and each signing in the presence of the testator and each other.

Section 37 of the new Act allows a willthat does not comply with that requirement to be validated if it is satisfied on “clear and convincing evidence” that the document “setsout the testamentary intentions of the testator” and was intended to be his or her will. [112] The standard required for “clear and convincing evidence” has been discussed in the case law. It remains the civil standard ofproof on a balance of probabilities: Re Curtis Estate, 2014 ABQB 745, 603 AR 46, at para. 25: The term "clear and convincing evidence" does not imply a higher standard of proof than the normal civil standard.

The Supreme Courtof Canada confirmed that there is only one civil standard of proof, which is proof on a balance of probabilities: C.(R.) v.

McDougall,2008 SCC 53 at 49. [113] Re Curtis also discussed the meaning of the term “testamentary intentions”, noting that there must be a deliberate and finalintention expressed of how the person wishes their property to be disposed of after death, referencing to the Manitoba decision of Georgev Daily (1997), (MB CA), 143 DLR (4th) 273, 115 Man R (2d) 27 (Man CA) at para. 23: The Manitoba Court held that "the term 'testamentary intention' means much more than a person's expression of how he would likehis/her property to be disposed of after death.

The essential quality of the term is that there must be a deliberate or fixed and finalexpression of intention as to the disposal of his/her property on death": para 65 [114] The Applicant Mary-Jane Gray argues that the 2011 Will should be validated as the intention expressed in the will is sensiblewhen one considers the circumstances. By the summer of 2011, Michelle Molly McNeill was divorced and had been living with hermother Mary-Jane for three years. She had named Mary-Jane as the beneficiary in the pension provided by her Calgary employer.

Theevidence from Mary-Jane and Ben Cook is consistent regarding the writing of the will and explains the discrepancy in dates. Mary-Janepoints out that the only missing formality in this case is that there was only one witness to the will, rather than two. That one witness,Ben Cook, took the stand to validate the will for the court and testified that both he and Mary-Jane were present for the signing of thewill. The Respondent argues this means there in fact there were two witnesses to the will, with one simply not signing as a witness.

Assuch, the non-compliant aspect of the 2011 Will is quite minor. [115] The Applicant also submits there is corroboration for the existence of the 2011 Will in the testimony of Ron Bell, anindependent witness with nothing to gain in these proceedings. Ron Bell confirmed that Michelle Molly showed him a one-pagetypewritten document that was her will. Ron Bell also testified that Michelle Molly advised him she wished Mary-Jane to be thebeneficiary of her will. [116] In terms of the computer erasure, Mary-Jane Gray submits that she did not intend to destroy relevant evidence relating to thewill.

Her intention was to protect her daughter’s privacy. She allowed the laptop to be examined even though she was told the expertwould be able to find anything, which suggests she believed the evidence on the will would be in her favour. [117] Finally, the Applicant points out that Glen McNeill’s allegation that the 2011 Will is forged is implausible in thecircumstances. His theory would require this court to find that

a) Mary-Jane was capable of concocting a scheme to forge a will in thedays after the death,

b) Mary-Jane was able to convince Ben Cook to participate in the scheme shortly after the death,

c) Ben Cookfalsified his diary entry and submitted falsified evidence to this court,

d) both Mary-Jane Gray and Ben Cook lied to the court in theirtestimony, and

e) Ron Bell either lied or was incorrect about seeing a one page typewritten will. [118] The Respondent Glen McNeill agrees that the main issue in this case is whether the 2011 Will should be validated. He submitsthat on a balanced view of the evidence, this court should find the multiple issues of non-compliance to be troublesome and compelling. The 2011 Will is problematic for a number of reasons, including the inclusion of an incorrect date, the typographical errors, the lack oftwo witnesses and the fact that the original executed copy is missing.

The Respondent points out that he, and the father and brother toMichelle Molly McNeill, all believe the person they knew would not participate in making a temporary will at the kitchen table. Michelle Molly McNeill was detail-oriented and well-educated, including on the topic of wills. Producing a will with multiple mistakeslike the 2011 Will would be out of character for her. [119] The Respondent also submits that Mary-Jane’s evidence must be questioned as she is a beneficiary under the 2011 Will. Hequestions whether Ben Cook is truly an independent witness as he is a very close friend to Mary-Jane.

He submits that Mary-Jane andBen’s recollection of events is generally poor except for the events surrounding the making of the wills at the kitchen table, which is self-serving. He suggests it was odd that on Ben Cook’s first visit to Mary-Jane’s home, he would assist with the writing of a will. [120] The Respondent submits Mary-Jane’s evidence must also be questioned because of the deliberate action she took to erase thecontents on Michelle Molly’s laptop a few days before the laptop was to be reviewed as evidence in these proceedings.

The laptopclearly would have had relevant evidence relating to the creation of the 2011 Will, or the absence of same. The Respondent arguesMary-Jane’s actions amount to spoliation and a presumption should follow that the destroyed evidence would not have assisted Mary-Jane. [121] Finally, the Respondent reminds the court that he and Michelle Molly remained close after their divorce. Despite the fact shemade a number of legal name changes in her adult life, it was telling that she kept the last name McNeill after her divorce. She and Glen

continued to have a friendship and trusted one another. This was evident from the fact that Michelle Molly remained in possession of the funds from their home and Glen allowed her to keep those funds to purchase a home during her period of illness. In January 2013, Michelle Molly specifically advised Glen with regards to the funds that he was still the beneficiary under her will, referring to the 2006 Will. Therefore, he submits the 2006 Will still represented Michelle Molly’s testamentary intentions.

Findings [ 122 ] After hearing the evidence, I agree that there are legitimate concerns regarding the 2011 Will in this case. Aside from the important fact that the original is missing, which I will address in the next section, there are typographical errors, the date is incorrect, there was only one witness, and the other “witness” to the will was not independent (Mary-Jane). [ 123 ] Another troubling aspect in this case is the erasing of Michelle Molly’s laptop computer by Mary-Jane Gray.

The Respondent alleges that Mary-Jane’s actions amounted to spoliation, which is the intentional destruction of relevant evidence when litigation exists or is pending: McDougall v. Black & Decker Canada Inc , 2008 ABCA 353 , 440 AR 253, at para 29 . The spoliation of relevant evidence is a serious matter. As was noted in Doust v Schatz , 2002 SKCA 129 , 227 Sask R 1, at para 27 “[t]he integrity of the administration of justice in both civil and criminal matters depends in a large part on the honesty of parties and witnesses. ...

A party is under a duty to preserve what he knows, or reasonably should know, is relevant in an action....” [ 124 ] The principle remedy for spoliation is the imposition of a rebuttable presumption that the evidence which was destroyed would not have assisted the spoliator. The presumption can be rebutted by evidence showing the spoliator did not intend, by destroying the evidence, to affect the litigation, or by other evidence that proves her case, McDougall at para 18: ... Spoliation in law does not occur merely because evidence has been destroyed.

Rather, it occurs where a party has intentionally destroyed evidence relevant to ongoing or contemplated litigation in circumstances where a reasonable inference can be drawn that the evidence was destroyed to affect the litigation. Once this is demonstrated, a presumption arises that the evidence would have been unfavourable to the party destroying it.

This presumption is rebuttable by other evidence through which the alleged spoliator proves that his actions, although intentional, were not aimed at affecting the litigation, or through which the party either proves his case or repels the case against him. [ 125 ] I find that Mary-Jane Gray’s actions in erasing the laptop computer a few days before her examination amounted to spoliation. I heard from counsel that prior to the examination, counsel for both parties had come to an agreement that the laptop would be examined.

Based on this, I find Mary-Jane engaged in a deliberate act to destroy evidence so that it was not available in the ongoing legal proceedings. She was not merely wiping evidence of Michelle Molly’s private life but also evidence which could prove or disprove whether and when the 2011 Will was created on the laptop computer, the central issue in this case. It also potentially could have prevented the parties from the need to proceed to trial.

The spoliation creates a presumption that the evidence on the computer would have been unfavourable to Mary-Jane. [ 126 ] However, as noted, this presumption is rebuttable by other evidence. [ 127 ] Weighing the evidence as a whole, I have decided to accept Mary-Jane’s evidence relating to the creation of the 2011 Will.

The main reason for this finding is that her evidence is corroborated by Ron Bell and Benjamin Cook, both of whom I accept as truthful witnesses. [ 128 ] I am satisfied that the 2011 Will was created under the circumstances described by Mary-Jane Gray and Benjamin Cook at the kitchen table on the evening of August 23, 2011. Their testimony provides an explanation as to the incorrect date on the document and the mirror wording of Mary-Jane and Michelle Molly’s wills.

It makes sense that Michelle Molly would have created a new will after her divorce and recognized her mother, the person she was closest to, as her beneficiary. [ 129 ] I accept Benjamin Cook’s diary entry as an authentic piece of evidence that references the events of that night. I also accept the evidence from Ron Bell to the effect that Michelle Molly wished to create a new will after her divorce and to name Mary-Jane as her beneficiary. Ron Bell had a specific recollection of seeing a one page typewritten document which Molly presented as her new will.

He is a completely independent witness with nothing to gain in these proceedings. [ 130 ] This corroborative evidence relating to the 2011 Will rebuts the presumption that the evidence on the laptop computer would not have assisted Mary-Jane Gray. It also alleviates some concerns I have over Mary-Jane Gray’s credibility due to her actions in relation to the computer.

Although it is clear that Mary-Jane loved her daughter and they maintained a close relationship, the evidence also showed that at times she was foul-mouthed, abusive and inconsiderate towards her daughter. [ 131 ] Although the preparation of this will may seem uncharacteristic of Michelle Molly McNeill, both in its process and in the language used, I find that she was not always as well-organized and meticulous in her approach to matters as Glen McNeill believed. For example, in the five years she lived in Calgary she purchased and sold three homes without ever moving into one of them.

This suggests she sometimes made hasty decisions. She also approached her divorce in a hurried manner and used an online service rather than using the services of a lawyer. [ 132 ] I have also considered the evidence of Glen McNeill regarding their conversation in January 2013, a few months before her death, where she stated he was still the beneficiary under the 2006 Will. It is somewhat difficult to reconcile this with the other evidence in favour of accepting the 2011 Will. It may be that Michelle Molly was not as direct with Glen McNeill after their divorce as he believed.

It appears she was not always open with him about matters between them, such as her true feelings over his request for her to return her engagement ring. Thus, even if I were to find the conversation occurred, an issue I am not deciding, it would not change my finding on a balance of probabilities that the 2011 Will was written by Michelle Molly McNeill and evidenced her final testamentary intentions. [ 133 ] Finally, I find the allegation of a forgery implausible under the circumstances. Mary-Jane Gray was devastated when she found out about the death of her daughter.

In the days after her death, while inconsolable and surrounded by family, she was in no shape to

conceive of a plan to forge a will, cobble it together, and convince Ben Cook to participate in such a plan. [134] Based on these findings, I find the 2011 Will should be validated as setting out the final testamentary intentions of MichelleMolly McNeill. Should the Court admit to probate a copy of Michelle’s 2011Will? [135] The next issue is whether the 2011 Will should be submitted to probate as there is only a photocopy of the will.

When atestator has possession of their will and it is missing at the time of their death, there is a presumption that the testator destroyed the willwith the intention of revoking it. The presumption can be rebutted if there is evidence that establishes on a balance of probabilities thatthe testator did not intend to revoke the will, it was merely lost. The burden rests with the person trying to rebut the presumption: Brimicombe v Brimicombe Estate, 2000 NSCA 67, 184 NSR (2d) 315, at paras 4-7. [136] The case of Re Bunce Estate (1998), (AB KB), 231 AR 240, [1998] AJ No 1133 (Alta. Sur.

Ct.),considered a case of this type when a fiancé of a deceased claimed he could only find a copy of the deceased’s will. The will left thedeceased’s entire estate to the fiancé, and named him as executor. The court noted the absence of an original will created a rebuttablepresumption that the original will had been voluntarily destroyed and revoked. In order to rebut the presumption, the court stated itmust be satisfied of a few matters, namely that: (

a) A thorough search was made for the original will and any evidence of the testator’s intentions, to satisfy the court that thewill was actually lost; (

b) Evidence exists to show that the copy of the will was viewed by the testator as a valid and subsisting will; (

c) There is no evidence that the testator desired a change in the will due to changes in familiar circumstances or stated desires topass on his or her possessions to others. [137] A more recent case from Alberta, Goold Estate v Ashton, 2016 ABQB 303, [2006] AJ No 553, at para 71, also considers thepresumption in a case where there was only a photocopy of a will. Goold refers to other relevant factors for consideration, including: (

a) Whether the terms of the will were reasonable; (

b) Whether the testator continued to have good relationships with the beneficiaries of the will up to the date of death; (

c) The nature and character of the deceased in taking care of personal effects; (

d) Whether there were any dispositions of property that support or contradict the terms of the copy sought to be probated; (

e) Statements made by the testator which confirm or contradict the terms of distribution set out in the will; and (

f) Whether the testator made statements to the effect that he or they had a will. [138] Due to the absence of the original 2011 Will, which was believed to be in the possession of Michelle Molly McNeill, apresumption arises that she destroyed the will with the intention of revoking it. [139] The Applicant submits that the presumption is rebutted. Mary-Jane Gray performed a thorough search through MichelleMolly’s filing cabinet and belongings, including in spots such as under her mattress, to no avail. There is no suggestion that MichelleMolly had a change of heart regarding her intentions.

She had been divorced from Glen for over two years and their relationship wasgrowing more distant. She chose to continue living with her mother and companion Mary-Jane. Therefore the terms of the will arereasonable. Although Michelle Molly indicated a desire to get “proper” wills done up after the 2011 Will, she did not express a desire tochange the beneficiary of her will. [140] The Respondent submits that the court should be very concerned that the original of the will is missing. Michelle Mollymaintained organized personal files and would have been careful with a document such as a will.

Further, she represented to Glen inJanuary 2013 that he was still the beneficiary of her will. Michelle Molly was aware that she continued to hold one half of thematrimonial property in her account and would not be unfair or lie to Glen. [141] After considering these submissions and the evidence, I find that the presumption is rebutted in this case. A thorough searchwas done for the original will. Mary-Jane gave evidence that Michelle Molly’s filing cabinet was fairly bare, which may suggest shewas no longer as well-organized with her record keeping.

I find the weight of the evidence shows that Michelle Molly McNeill intendedto change the beneficiary of her estate to her mother Mary-Jane after her divorce, and she did so by creating the 2011 Will. Ben Cookand Ron Bell both provided corroborative evidence that the 2011 Will was created and evidenced Michelle Molly’s testamentaryintentions. There was no evidence to suggest that her intentions changed after she created the 2011 Will. She had not moved on toanother significant relationship. She continued to live with her mother, who acted in a caregiving role during her illness in late 2012.

Their relationship, while not always ideal, was a close one. [142] The one troubling piece of evidence is Michelle Molly’s alleged representation to Glen in January 2013 that he remained thebeneficiary under her will. I have found that if this statement was made, it may have been false as Michelle Molly was not always director frank with Glen McNeill, as was evidenced by her hiding her affair for many months and hiding her true emotions regarding the

engagement ring. Therefore, even if the conversation occurred, I do not find it outweighs the other evidence that rebuts the presumptionthat the 2011 Will was destroyed or revoked by Michelle Molly prior to her death. [143] I find that on a balance of probabilities the original 2011 Will was lost and the presumption is rebutted. A photocopy of the2011 Will may be admitted to probate. Remaining Issues [144] In response to the first two questions posed by the parties, I have found that Michelle Molly McNeill’s 2011 Will is validatedand should be admitted to probate.

As such, I do not need to consider the issue of whether Michelle Molly revoked her 2006 Will. Thelast issue presented by the parties to this court is whether Glen McNeill is a valid creditor of Michelle’s estate, either by a MatrimonialProperty Act claim for division of property of by a claim of loan. [145] Glen McNeill gave evidence to the court that he and Michelle Molly McNeill agreed to split their assets equally when theydivorced.

Shortly prior to the divorce, the couple had used the proceeds from the sale of their Burlington, Ontario home and additionalfunds sent by Glen McNeill from China towards the purchase of a house in Calgary. Title to the house was in joint tenancy. When thehouse was sold, Glen agreed to allow Michelle Molly to keep the full proceeds of the sale in her account, and signed a legal release of thefunds to this effect. This was done to allow Michelle Molly to purchase another home as she could not qualify for a mortgage on herown.

Glen characterized the arrangement as him providing a loan to Michelle Molly of his share of the matrimonial party. Heemphasized that they remained on amicable terms and had a relationship of trust. Glen asked Michelle Molly for the funds in January2013 but was told she had changed her mind due to her recent health scare. She reassured Glen that he was still the beneficiary under herwill. Glen decided not to pursue the matter further at the time.

Thus, Glen was concerned when the 2011 Will surfaced and he was nolonger the beneficiary under the will, cutting off his access to the funds from the home. [146] Unfortunately, there are two barriers that prevent me from deciding the matrimonial property or loan issue at this time. Themain barrier is that the Order directing this hearing specified eight issues for possible consideration. All of the issues relate to thevalidity, revocation, rectification and probate of the 2006 Will and the 2011 Will.

The issue relating to the matrimonial property claim ora creditor’s claim on the estate was not included in the Order. Although a few submissions were made on this issue in closing, itappeared that the focus of the parties in their evidence and submissions was indeed related to which will governed Michelle MollyMcNeill’s estate. [147] The other barrier is related, as Glen McNeill will need to present evidence to the court to corroborate his claim that the partiescame to an agreement to share their matrimonial property such that he is a creditor of the estate.

Section 11 of Alberta’s Evidence Act,RSA 2000, c A-18 requires corroboration of an interested party’s claim against a deceased’s estate: [148] In an action by or against the heirs, next of kin, executors, administrators or assigns of a deceased person, an opposed orinterested party shall not obtain a verdict, judgment or decision on that party's own evidence in respect of any matter occurring before thedeath of the deceased person, unless the evidence is corroborated by other material evidence. [149] The requirement of corroboration does not mean there must be independent proof of the claimant’s evidence.

The corroborativeevidence must only make the claimant’s statements more probable or strengthened in the judicial mind: Harvie v Gibbons (1980), 1980ABCA 38 , 109 DLR (3d) 559, 12 Alta LR (2d) 72 (ABCA), at para 39; Stochinsky v Chetner Estate, 2003 ABCA 226, 330AR 309, at para 29.

The evidence may include documentary evidence, evidence from other witnesses, or circumstantial evidence:Harvie at para 39; Meisner v Bourgaux Estate (1994), (NS SC), 131 NSR (2d) 244, 4 ETR (2d) 295 (NSSC),Kendrick v Dominion Bank and Bownas (1920), (ON CA), 58 DLR 309, 48 OLR 539 (ONCA). [150] There was reference in the examination of Glen McNeill prior to this hearing that there are emails where he requested themoney from Molly, but they were not presented to the court. There may also be other evidence to corroborate Glen McNeil’s claim.

Atthis juncture it would be premature to decide this claim, both due to the state of the evidence and submissions, and due to the explicitdirections in the Order. [151] In

summary, I have found the 2011 Will should be validated as setting out the final testamentary intentions of Michelle MollyMcNeill and may be admitted to probate. If the parties are unable to agree on costs, they may make an appointment to do so. Heard on the 25th, 26th & 27th days of April, 2016. Dated at the City of Calgary, Alberta this 21st day of November, 2016. J.T. McCarthy J.C.Q.B.A. Appearances:

Blair C. Yorke-Slader, Q.C. for the Applicant Ivan J. Derer, Q.C. for the Respondent