Schell Estate (Re), 2018 ABQB 991

Court of Queen’s Bench of Alberta Citation: Schell Estate (Re), 2018 ABQB 991 Date: 20181205 Docket: ES03 143047 Registry: Edmonton In the Matter of the Estate of Eileen Schell Between: Dennis Schell and Steven Schell Plaintiffs/Respondents - and - Teresa Schell and The Bank of Nova Scotia Trust Company Defendants/Applicants _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice S.N. Mandziuk _______________________________________________________ I. Overview [ 1 ] Eileen Schell passed away on September 18, 2014 at the age of 81. She had three children: Teresa Schell, Steven Schell and

Dennis Schell. For ease of reference, from this point forward in my Reasons, I will refer to the Schell siblings, their mother and Teresa’s daughter, Junifer Schell, by first names. [ 2 ] In 2007, Eileen had executed a Will that divided her estate equally amongst her three children. [ 3 ] On November 19, 2009, when she was 76 years old, Eileen executed a new Will (the “ 2009 Will ”) by which she left 50 percent of her estate to Teresa, 40 percent to Teresa’s daughter Junifer and 10 percent to Steven. There were no other beneficiaries. Dennis was specifically excluded from any benefit under the Will.

Junifer was the only grandchild who received a testamentary disposition in the Will. Eileen named Teresa and the Bank of Nova Scotia Trust Company as executors. [ 4 ] Dennis and Steven, the Respondents in this application, commenced an action, claiming that the 2009 Will should not be submitted for probate because at the time that it was executed, Eileen lacked testamentary capacity and was subject to undue influence.

They believe that in the time period just prior to and contemporaneous with the execution of the 2009 Will, Eileen’s mental state was deteriorating and, at the same time, Teresa and Junifer were exerting influence on Eileen in order to improve their positions with respect to Eileen’s estate at the expense of the two brothers (and their children). [ 5 ] On February 24, 2015, Ackerl J remitted the matter for trial to determine whether or not Eileen had testamentary capacity, whether the 2009 Will was the product of undue influence and whether it should be probated. [ 6 ] Teresa and the Bank of Nova Scotia Trust Company, the Applicants, have applied for

summary dismissal of Dennis and Steven’s claim under Rule 7.3 of the Alberta Rules of Court , arguing that it has no merit, no real chance of success and that

summary dismissal is appropriate . [ 7 ] For the reasons that follow, the application for

summary dismissal is dismissed. II.

Summary Dismissal: the State of the Law [ 8 ] Rule 7.3 of the Alberta Rules of Court allows a party to apply for

summary judgment where there is no merit to a claim or a part of a claim. This rule gives the Court the power to dismiss an action where it determines that there is no need for a trial. The leading Supreme Court of Canada authority on

summary judgment processes is Hryniak v Mauldin , 2014 SCC 7 . In that case, Karakatsanis J stated: [4] ... In my view, a trial is not required if a

summary judgment motion can achieve a fair and just adjudication, if it provides a process that allows the judge to make the necessary findings of fact, apply the law to those facts, and is a proportionate, more expeditious and less expensive means to achieve a just result than going to trial. [5] ... I conclude that

summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims. ... [49] There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for

summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result. [ 9 ]

Summary judgment processes are available in estate matters, even on issues related to undue influence and testamentary capacity: Quaintance v Quaintance (Estate) , 2006 ABCA 47 ; Holmes v National Trust Co , 2002 ABQB 919 , rev’d on other grounds, 2004 ABCA 62 . [ 10 ] Therefore, it is in that context that I approach this application by the executors, keeping in mind the foundational rule of the Alberta Rules of Court which requires the rules to be interpreted purposively (which is consistent with Hryniak ), as a “means by which claims can be fairly and justly resolved in or by a court process in a timely and cost effective way” (Rule 1.2(1)). [ 11 ] An application under Rule 7.3 has been explicitly recognized as “one tool to achieve the general purposes of Alberta’s Rules , which include facilitating the quickest means of resolving a claim at the least expense: r 1.2(2)(b)”: Stoney Tribal Council v Canadian Pacific Railway Co , 2017 ABCA 432 at para 7 . [ 12 ] A court hearing an application for

summary dismissal must consider the evidence that has been filed with the Court in support of and in opposition to the application. The party that is seeking dismissal has to provide sufficient evidence that would be admissible at trial in order to meet the test. [ 13 ] At present, there appears to be a division in Alberta jurisprudence concerning the proper test for

summary judgment. [ 14 ] In Composite Technologies Inc v Shawcor Ltd , 2017 ABCA 160 , the Court of Appeal stated: [2] Rule 7.3 of the Alberta Rules of Court allows a court to summarily dismiss an action that is without merit.

A non-moving party’s position is without merit if the moving party’s position is unassailable or so compelling that its likelihood of success is very high and the non-moving party’s likelihood of success is very low (emphasis added). [ 15 ] Composite Technologies Inc was recently followed in Rotzang v CIBC World Markets Inc , 2018 ABCA 153 at para 15 ; Whissell Contracting Ltd. v Calgary (City) , 2018 ABCA 204 at para 1 ; and 898294 Alberta Ltd v Riverside Quays Limited Partnership , 2018 ABCA 281 at para 12 .

[ 16 ] Another line of cases takes a different approach. The Court of Appeal in Stefanyk v Sobeys Capital Incorporated , 2018 ABCA 125 , held that: [13] In this case the reasons under appeal stated the test for

summary judgment as being whether the moving party’s position was “unassailable”, and stated it would be unassailable if it is so compelling that the “likelihood of success [at trial] is very high”: reasons at para. 9. This statement of the law was extracted from the concurring reasons in Can v Calgary Police Service , 2014 ABCA 322 at para. 20 , 584 AR 147, which extracted that test from the earlier reasons of the author in Beier v Proper Cat Construction Ltd ., 2013 ABQB 351 at para. 61 , 564 AR 357. The obiter dicta in Can do not accurately state the law.

Under the rules of stare decisis , decisions of the Court of Appeal reflect the law of the province. The binding ratio decidendi of a Court of Appeal decision, however, is to be found in the majority reasons. Obiter dicta in concurring and dissenting reasons do not reflect the law, and they should not be followed to the extent that they are inconsistent with binding authority. [14] First of all, it is now established that there is only one civil standard of proof, and it is proof on a balance of probabilities. The rule was definitively stated in F.H. v McDougall , 2008 SCC 53 at para. 40 , [2008] 3 SCR 41: “. . .

I think it is time to say, once and for all in Canada, that there is only one civil standard of proof at common law and that is proof on a balance of probabilities”. That is the standard the

summary judgment rule engages when it talks about “merit”: proof on a balance of probabilities. “Unassailable” and “very high likelihood” are not recognized standards of proof. [15] Secondly, the test for

summary judgment is stated in the binding cases like Hryniak v Mauldin and Windsor v Canadian Pacific Railway.

Summary judgment is one procedure for deciding whether the moving party has proven its case on a balance of probabilities.

Summary judgment is the appropriate procedure where the record is such that a fair and just disposition can be made on it: 776826 Alberta Ltd. (c.o.b. Budweiser Motorsports Park) v Ostrowercha , 2015 ABCA 49 at paras. 9-10 , 593 AR 391. In other words, is the record such that it is fair and just to decide summarily if the moving party has proven the case on a balance of probabilities? That generally comes down to deciding if there is any material issue of fact on which a trial is justified, or whether the chambers judge can make any required fact findings from the

summary dismissal record in a fair and just manner. A trial may be the preferred and proportional procedure where there is a reasonable expectation that a better evidentiary record will be created by a trial, for example because there are disputed issues of material fact, or issues of credibility, that cannot fairly be resolved summarily. [16] It follows that a plaintiff cannot resist

summary dismissal merely by raising a “doubt”, although the plaintiff is not required at that stage to prove its case on a balance of probabilities: McDonald v Brookfield Asset Management Inc. , 2016 ABCA 375 at para. 13 . The plaintiff can obviously resist

summary dismissal by showing that the applicant has not, at that stage, proved its defence on a balance of probabilities.

Summary dismissal can also be resisted when the record or the issues mean that

summary dismissal is not a fair and just procedure for both parties: Abbey Lane Homes v Cheema , 2015 ABCA 173 at para. 22 . A dispute about material facts that cannot be resolved on the existing record, or that fairly and reasonably call for a trial, will be sufficient: Ostrowercha at para. 11 . [17] Therefore, in this appeal the issue is not whether the appellant’s position is “unassailable”. The first question is whether the record is sufficient to decide if the appellant is liable for the plaintiff’s injuries.

There are no material facts in dispute, no overwhelming issues of credibility, and the court is able to apply the law to the facts. It is unlikely that the cost and expense of a trial is justified because of an expectation of a significantly better record. In this case

summary judgment is a proportionate, more expeditious and less expensive means to achieve a just result, and therefore it is an appropriate procedure. The ultimate issue is whether the appellant has proven on a balance of probabilities that it is not liable for the plaintiff’s injuries.

See also Angus Partnership Inc v Salvation Army (Governing Council) , 2018 ABCA 206 at paras 41-2 , which applies Stefanyk. [ 17 ] My colleagues on this Court have noted the apparent conflict in the authorities: 330626 Alberta Ltd v Ho & Laviolette Engineering Ltd , 2018 ABQB 478 at para 41 ; Beal v Vermilion-River (Municipality), 2018 ABQB 435 at para 35 ; Sobeys Capital Incorporated v Whitecourt Shopping Centre (GP) Ltd , 2018 ABQB 517 at para 54 ; Axcess Mortgage Fund Ltd v 1177620 Alberta Ltd , 2018 ABQB 626 at para 52 ; Da Silva v River Run Vistas Corporation , 2018 ABQB 869 at paras 159-60 .

A five person panel of the Court of Appeal heard arguments on this issue in two appeals on September 7, 2018 ( Brookfield Residential (Alberta) LP (Carma Developers LP) v Imperial Oil Limited and Weir-Jones Technical Services Incorporated v Purolator Courier Ltd . ) and their decision will hopefully resolve this question in the near future. [ 18 ] I will now turn to the positions of the Applicants and the Respondents and a

summary of the evidence led. III. The Applicants’ Position and Evidence [ 19 ] The Applicants argue that the evidence establishes that a trial is unnecessary for the disposition of this matter. They claim that the Respondent’s claims have no “merit” and no “real chance of success”. [ 20 ] Teresa’s view is that Eileen had testamentary capacity at the time that the 2009 Will was executed. She states that no one unduly influenced Eileen in the making of the 2009 Will.

The evidence led by the Applicants addresses several areas: the degree of Eileen’s independence at the time of the execution of the Will; medical evidence that supports Eileen’s capacity; the circumstances of the execution of the Will, particularly Eileen’s solicitor’s due diligence; and the rationality of Eileen’s decision to exclude Dennis from the Will. [ 21 ] The evidence in support of the

summary judgment application comes primarily from an Affidavit sworn by Teresa Schell, filed October 13, 2017 and transcripts from cross-examination. Junifer did not provide any affidavit evidence. [ 22 ] Teresa’s evidence is that in the November 2009 timeframe, Eileen displayed what can be characterized as a great deal of personal independence in her day to day life. She lived independently in her own home and did her own shopping and driving, banking, bill payments, medical self-care and made her own social arrangements.

[ 23 ] The Applicants have filed medical evidence that they say corroborates and demonstrates Eileen’s level of self-sufficiency and mental acuity. Eileen was medically assessed on several occasions contemporaneously with the preparation and execution of the 2009 Will. [ 24 ] On October 28, 2009, Teresa took Eileen to the Health First Strathcona Seniors Clinic for a cognitive examination and assessment. Teresa’s evidence is that Eileen had received a referral for this assessment because “she had been experiencing some short term memory decline and other symptoms”.

Eileen was diagnosed with a “mild cognitive impairment”. The attending physician was Dr. Ranjeeta Gounden. [ 25 ] The second assessment was performed by Eileen’s family physician, Dr. Lorraine Mann Hosford, during the estate planning process which resulted in the execution of the 2009 Will. I will discuss Dr. Hosford’s assessment below. [ 26 ] Teresa’s evidence is that Eileen, on her own initiative, made the decision to reduce Steven’s share and eliminate Dennis’ share, while giving the bulk of her estate to Junifer and Teresa.

Teresa’s evidence is that her involvement in the planning and execution of the Will was minimal. She says that she had nothing to do with Eileen’s estate planning. She further says she had nothing to do with the selection of the lawyer, Mr. Andrew McLaughlin. She only drove her mother to the appointment with Mr. McLaughlin on November 10, 2009, and was asked to be an executor. She had no further involvement with Mr. McLaughlin and the preparation of the 2009 Will since she was out of the country between November 16 and November 30, 2009.

Only afterward did she learn that Eileen had determined that she wanted to exclude Dennis from the 2009 Will. [ 27 ] Teresa says that she and Dennis were both frequently in contact with her mother during 2009. However, there was a dispute at the time between Dennis and Teresa about their late father’s property, specifically revolving around whether or not certain farmland should be sold. Their father had been divorced from Eileen in 2000 and was living in a care facility. Junifer was living on the farmland at the time.

Teresa’s evidence is that Eileen was very unhappy about Dennis’ conduct in his dispute with Teresa and upset about Dennis’ negative attitude towards Junifer; Eileen was concerned that Junifer would have nowhere to live if the farmland was sold. Teresa also says that Eileen told her that Dennis had become “uncaring”. Teresa submits that Dennis admitted on cross-examination that Eileen expressed her dissatisfaction with his behaviour respecting the farmland and his attitude to Junifer. [ 28 ] Steven’s share was set at 10% because Eileen had been estranged from him for many years.

Teresa submits that Steven admitted on cross-examination that he had limited contact with Eileen in 2008 and 2009 and that Eileen had told him that she was upset about this. [ 29 ] The Applicants have also filed an Affidavit (and there is a transcript from cross-examination filed) sworn on January 31, 2018 by Andrew McLaughlin, Eileen’s lawyer, concerning the circumstances surrounding the preparation and execution of the 2009 Will. [ 30 ] Mr. McLaughlin’s evidence is that he originally met with Eileen and Teresa on October 30, 2009.

The purpose of that initial meeting, which Teresa arranged, was for Teresa to get some advice about the dispute with Dennis over the farm land that had belonged to their late father. [ 31 ] Eileen ended up retaining Mr. McLaughlin personally to prepare a Will, Enduring Power of Attorney and Personal Directive. On November 9, 2009, Eileen went to his office, without an appointment, by herself. On November 10, 2009, Teresa brought Eileen to Mr. McLaughlin’s office, then left. Eileen met with Mr. McLaughlin alone. During this meeting, Mr. McLaughlin learned about the assessment by Dr.

Gounden and the diagnosis of mild cognitive impairment and requested further information. Teresa sent him a

summary of Eileen’s geriatric assessment. On November 13, 2009, a third meeting was held with Eileen alone and instructions were confirmed. [ 32 ] Mr. McLaughlin went to some lengths beyond his normal practise to ensure that his file was properly documented. He met with Eileen for about 5-6 hours total, in four meetings between November 9 and 19, 2009. He asked her a lot of questions. He prepared a Memorandum detailing his discussions with her. He prepared a capacity letter that was signed by Dr. Hosford. He recorded a video interview and a video of the actual execution of the 2009 Will.

Financial information that had been obtained from Eileen, her accountant and Teresa was reviewed. [ 33 ] Mr. McLaughlin’s Memorandum, which is in evidence, states that he satisfied himself that Eileen was acting freely and possessed the requisite testamentary capacity, and that he inquired extensively about Eileen’s reasons for wanting to exclude Dennis from her Will.

His evidence is that Eileen did not trust Dennis, was upset about him being mean to Junifer, was distressed about the dispute over her late ex-husband’s property, believed Dennis was greedy and had already received enough from her ex-husband’s property, and generally gave clear instructions on how she wanted her estate to be distributed. Mr. McLaughlin said on cross- examination that Eileen was concerned about creating a record about why she was excluding her litigious son as a beneficiary. Mr.

McLaughlin’s evidence is that Eileen also indicated that Steven had been absent from her life for a number of years and had just returned to her life, but felt that he should not receive as much from the estate as Teresa. Finally, his evidence is that Eileen corrected Teresa’s misunderstanding about a particular bank account asset, which he believes supports his assessment of her capacity. [ 34 ] Mr. McLaughlin’s evidence is that after learning about the October 28 diagnosis of mild cognitive impairment, he advised Eileen to meet with her family doctor, Dr.

Hosford, for a medical assessment of her competency before she signed the Will. He prepared a draft “capacity letter” for Dr. Hosford to review and, if she agreed with its contents, to sign. [ 35 ] Eileen met with Dr. Hosford on November 18, 2009. Dr. Hosford signed the draft “capacity letter” prepared by Mr.

McLaughlin, agreeing with the following: in her opinion, Eileen “was capable of understanding her property and its extent, understood the effect of a Will”, was “competent to give instructions with respect to the distribution of her property among her family”, understood the nature and effect of an enduring power of attorney that would become effective “if her mild cognitive impairment worsens and she becomes incapable of administering her property herself” and understood the effect of a personal directive. Dr. Hosford signed and faxed a copy of the capacity letter to Mr.

McLachlin on December 8, 2009. [ 36 ] The video interview of Eileen on November 19, 2009 was also entered into evidence. It was viewed in open court during the

course of this application. Mr. McLaughlin indicates that the video was made “out of an abundance of caution” since Eileen was concerned about the Will being contested because the lawsuit between Teresa and Dennis over their late father’s property had already started. [ 37 ] The Applicants contend that the entire factual context supports the

summary dismissal of the Respondents’ claim. The Applicants argue that

i) the independent evidence of Eileen’s lawyer and doctor indicate that she had capacity to make the 2009 Will and ii) Eileen had reasons to distribute her estate in the way that she did. The Applicants submit that there is no merit to the Respondents’ claim and that they have not provided any evidentiary basis, apart from hearsay, innuendo and opinions from non-experts, to conclude that Eileen lacked testamentary capacity or that she was unduly influenced when making the 2009 Will. IV. The Respondents’ Position and Evidence [ 38 ] The Respondents rely on a body of evidence that, they argue, renders

summary dismissal of their claim inappropriate and impossible to grant. [ 39 ] The evidence falls into three broad categories: Eileen’s general approach to her finances and equal treatment of family prior to the execution of the 2009 Will; Eileen’s cognitive decline, including delusional thoughts and confusion, up to and including the execution of the 2009 Will; and the changing nature of Teresa and Junifer’s relationship with and influence over Eileen in the time period leading up to the execution of the 2009 Will. [ 40 ] In support of their position, the two Respondents have each sworn Affidavits, filed December 20, 2017 (and each of them been cross-examined).

They have also filed the Affidavits of several non-party witnesses, including Dennis Stenerson (Dennis’ partner), Barbara Stewart (Eileen’s sister), and Arlene Harding-Plambeck and Elaine Lejambe (both friends of Eileen). These Affidavits were filed on November 30, 2017. Apart from Dennis Stenerson, none of these witnesses has a direct or indirect personal interest in the outcome of this case. None of the third party witnesses were cross-examined on their Affidavits. [ 41 ] Significantly, Dennis challenges the 2009 Will on the grounds that a number of facts set out in the McLaughlin file are erroneous.

In particular, although Eileen told Mr. McLaughlin that Dennis had not been involved in her life in the fall of 2009, they had just returned from a 2 ½ week trip to Greece. He also claims that Mr. McLaughlin was unaware of the level of support that he and his partner had been providing to Eileen. Parity [ 42 ] The Respondents’ evidence is that Eileen had always tried during her life to treat all family members equally, including children and grandchildren. The value that Eileen placed on equal treatment applied in all facets of her family relationships, whether it was gifts, special events or other occasions.

The 2007 Will which distributed her estate equally amongst her three children was consistent with that approach. In contrast, the 2009 Will represents a marked departure. The Respondents argue that the 2009 Will, by leaving Dennis with no testamentary disposition and leaving Steven with only 10%, raises concerns about Eileen’s testamentary capacity and free will. [ 43 ] Barbara Stewart, Eileen’s sister, confirms in her Affidavit that Eileen’s unequal testamentary disposition was inconsistent with her long-time pattern of treating all her children equally and not favouring any single one.

Cognitive Decline [ 44 ] Dennis’ evidence is that he was Eileen’s main caregiver. He testifies to a number of things that occurred from 2007 to the date that the 2009 Will was executed that show deterioration in Eileen’s mental state and her memory. His evidence is that starting in early 2007, Eileen began to “forget things, to repeat stories and obsess about things that were happening to her.” [ 45 ] Around 2007 or 2008, Eileen had a car accident. Dennis indicates that Teresa talked to him about this and said that Eileen’s driving was “erratic”.

Subsequently, Dennis took Eileen to her general practitioner’s office and it was agreed that she would only drive in Sherwood Park, where she was living at the time, and not during busy times. [ 46 ] By the summer of 2008, Eileen could no longer cook for herself, so Dennis and Mr. Stenerson escalated their level of support. [ 47 ] During 2008 and beyond, Eileen’s condition deteriorated. Her relationships were becoming strained.

Dennis’ evidence on cross-examination describes her as “acting out of sorts compared to what she had in the past few years, that she was paranoid, she was having problems in her day-to-day life and interactions with people that she was close to”. Eileen was concerned that people at a senior’s club that she had been attending were laughing and talking about her “behind her back”. [ 48 ] Dennis says that a number of friends with whom Eileen had previously had close relationships, including her neighbours, were becoming estranged.

Eileen was suspicious that her neighbours were entering her home and stealing from her. She had a falling out with one of her neighbours over the construction of a new fence that she told Dennis was put up by the neighbor as a barrier to their relationship. She yelled at people who were doing renovations on a neighbour’s house. She thought that a neighbour was sneaking into her house. [ 49 ] Dennis says that Eileen became “obsessed with cats being in her yard and put nails on top of fences and expressed wanting to put antifreeze out” (presumably to harm them).

This was “uncharacteristic” behavior as Eileen had always been an animal lover. The SPCA visited Eileen and asked her to refrain from this behavior.

[ 50 ] There was considerable emphasis in the evidence on trips Eileen took in 2008 and 2009 to Egypt, Mexico, and Greece; Dennis and his partner, Mr. Stenerson, accompanied Eileen to both Egypt and Greece. [ 51 ] According to Dennis, on the trip to Egypt, Eileen displayed a “tendency to wander off”, as well as suspicious behaviour and forgetfulness. In addition, their friend Jane Fletcher (with whom Eileen shared a room) complained about Eileen’s obsessiveness.

After they returned, Eileen would forget to turn the lights off in her car and needed a boost multiple times. [ 52 ] In the period leading up to the Greece trip, which took place in the fall of 2009, Dennis indicates that he was seeing his mother four or five times per week. While preparing for the trip to Greece, Eileen lost her passport; after Mr. Stenerson found it in her home, she thought that he had deliberately hidden it. During the trip, she exhibited unusual and concerning conduct. She had difficulty taking care of her personal belongings and was at times forgetful and confused.

When she went to the customs officer on her return to Canada she could not say where she had been and Dennis had to intervene with the officer, who “admonished [Dennis] for taking her out of the country in her condition”. [ 53 ] Dennis says he paid for Eileen’s trip. However, Eileen later said that she had paid for the trip herself and gave money to Dennis to pay for him; when confronted, she became upset and mentioned killing herself.

During cross-examination, Dennis stated that, after being corrected about incorrect statements, Eileen would often use this as “a last resort”, saying, “well, I should just kill myself.” [ 54 ] Once they returned from Greece, Dennis arranged an assessment at the Health First Strathcona Seniors Clinic given his concerns about Eileen’s cognition. Teresa ended up taking Eileen to her appointment with Dr. Gounden on October 28, 2009, because Eileen expressed worry that Dennis would put a highly negative slant on her condition.

Dennis provided a note to Teresa with his observations to pass on to the doctor, but alleges that Teresa was not entirely truthful with the assessing physician. Dennis’ evidence is that Teresa withheld the fact that Eileen’s cognition was deteriorating and that she was alienating friends and neighbours. Dennis contests the idea that Eileen had had sufficient knowledge to provide a full picture to the physician. [ 55 ] Steven’s evidence is that after his parents’ divorce he had little contact with any of his immediate family.

He indicated that he saw his mother infrequently in 2008 and 2009, but had telephone conversations with her regularly. The last time Steven was with his mother prior to the execution of the 2009 Will, in April 2009, she would go into “trancelike states . . . [s]he’d have to be asked several times to get a response from her.” He was concerned about her living alone. Steven said in his cross-examination testimony that Junifer actively fueled Eileen’s delusion that Dennis was hiding disposable cameras in her house.

Further, Eileen was under the impression that Steven lived in British Columbia (a mistaken belief reflected in Mr. McLachlan’s Affidavit). His evidence is that he’s never lived or worked in British Columbia or even vacationed there, and had no idea how Eileen came to believe that he lived in British Columbia. [ 56 ] Mr. Stenerson stated that he knew Eileen for a number of years. He also observed Eileen’s decline. His evidence is that he and Dennis were highly engaged in caring for and helping Eileen (eg, visiting, shopping, home repairs, yard work, and taking her out).

He mentioned changes in Eileen’s personality and behavior that began in 2007, noting that she would repeat herself and was more forgetful. Eileen’s behavior continued to change noticeably throughout 2008. According to Mr. Stenerson, Eileen deteriorated more after the Greece trip.

She was accusatory, claiming that people close to her were breaking into her home and leaving chocolate bars, “sabotaging” her vehicle, and that she had been “abandoned” by Dennis in Greece. [ 57 ] Barbara Stewart’s evidence is that Eileen’s “dementia became very apparent during the summer of 2008” and that “her behaviour was becoming more erratic and confused”. She gives some specific examples of paranoid concerns about her neighbours (with whom she had previously been close), fabricating stories, and accusatory and irrational views.

She adds that Eileen’s behaviour became even more mercurial during the Fall of 2009, making up stories and accusing people of unfounded things. [ 58 ] Elaine LeJambe stated that she was close with Eileen and her family for many years. Ms. LeJambe works in the travel industry. Eileen joined the trip to Egypt that Ms. LeJambe was hosting in 2008. During the trip, Ms. LeJambe noticed that Eileen had memory and communication difficulties. She had to be watched very closely: she had trouble exchanging money and had difficulty making purchases at markets.

Eileen also argued about money with a vendor during the trip and could not leave the incident alone. [ 59 ] Ms. LeJambe also hosted the Greece trip in 2009. Given the previous problems she had observed, she appreciated the fact that Dennis would be accompanying Eileen on that trip. She observed that Eileen’s memory was worse and that her “coherence had deteriorated over the year”. She corroborates the evidence that Eileen had difficulty locating her passport. She also corroborated the evidence that Eileen could not remember where she had been when she went through customs in Canada. [ 60 ] Ms.

Harding-Plambeck gives evidence about Eileen’s behavioral changes. Specific examples include Eileen becoming very angry with neighbourhood cats entering her yard to the point that she “rigged up a contraption of boards and nails along her fences and gate to injure the cats as they were tyring [sic] trying to hop into her backyard”. Eileen thought that people were coming in her home and leaving chocolate bars on her bed and moving items around. Eileen accused Ms. Harding-Plambeck and her husband of taking her passport, and began phoning them and screaming about this, thus straining the relationship.

Changing nature of Teresa and Junifer’s relationship [ 61 ] The Respondents argue that there are suspicious aspects to the relationship between Teresa and Junifer and Eileen during the time prior to the 2009 Will being executed. [ 62 ] Dennis’ evidence is that Eileen had, before 2009, held “negative views” of Junifer and Teresa. Dennis states that Eileen complained a great deal about Junifer asking her for money and wanting things to be purchased for her.

In 2008, Eileen expressed anxiety to Dennis about Teresa and Junifer trying to get her savings because they asked her to provide them with funds for a deposit for a house and wanted to keep that request a secret from the brothers. He says that Eileen was very upset about the amount that they wanted. Money was not advanced, however, the requests persisted and Dennis testified that in the summer of 2008, Eileen told him she wanted to write Teresa out of her Will. He talked her out of it.

[63] Dennis also says that Teresa would only visit Eileen two to three times per year on average prior to 2009 and that Teresa’sinvolvement with her mother’s care was minimal. But, when the 2009 Will was being prepared, he alleges that Teresa was heavilyinvolved in the process of Eileen assessing her estate and providing instructions to Mr. McLaughlin. He noted that Mr.

McLaughlin’s fileindicates that Eileen said that she had not seen Dennis for months, when in fact they had just returned from Greece together and he hadbeen looking after her since their return. [64] The Respondents also submit that Teresa coloured the facts when she talked to Eileen about the dispute between the siblingsabout their father’s property and about their relationship with Eileen, which they say could not have been fully appreciated by Eileengiven her mental state.

On cross-examination, Dennis testified that “[Teresa] was fanning the flames and encouraging my mom to havenegative feelings towards me”. [65] Steven’s evidence is that Teresa gave Eileen a one-sided version of the dispute with Dennis over their late father’s propertyand that there was no reason to involve her. He states that an April 2009 meeting between Teresa, Junifer, Eileen and Steven, ostensiblyintended to have Steven look at a tractor at the late father’s farm, turned into a conversation about “ . . . how horrible . . .

Dennis was,now he wanted to sell my father’s property and leave her poor daughter Junifer and her family without any place to live”. According toSteven, Teresa tried to enlist him “as an ally” in her dispute with Dennis. From Steven’s perspective, these negative views about Dennis’relationship with Eileen were, in effect, fed to Eileen so that Teresa could position herself and Junifer to get the majority of the estate. [66] Mr. Stenerson’s evidence is that Eileen had been upset with Teresa and Junifer about financial issues and that Eileen felt thatshe was being taken advantage of.

In fact, at one point, he and Dennis talked Eileen out of disinheriting Teresa. [67] Ms. Stewart confirmed that, during the summer of 2008, Eileen was upset about giving Junifer a large sum of money for thedeposit on her house. Eileen “felt used and manipulated” by the two of them [i.e., Teresa and Junifer]. Ms. Stewart expressed her beliefthat as Eileen got worse by the fall of 2009: Teresa and Junifer were “manipulating” her and fuelling her delusional thoughts. She saysthat Teresa was monitoring her phone conversations with Eileen. Finally, Ms.

Stewart stated that Teresa had repeatedly lied to her aboutEileen and that she has “clearly demonstrated that she is not to be trusted.” [68] Ms. Harding-Plambeck’s evidence is that Teresa was always taking things from Eileen’s place, and that Eileen had concernsabout Junifer and Teresa. Her evidence is that Junifer and Teresa took advantage of Eileen. However, as Eileen’s mental healthdeteriorated, Teresa began visiting more often, and Teresa was secluding Eileen and positioning herself as “the only one Eileen wouldcome to rely on”. Ms.

Harding-Plambeck says that Teresa showed her a power of attorney naming her as Eileen’s representative andsaying words to the effect that “now Dennis will never be able to get a cent of hers”. There are other examples of what might be seen asexploitation that troubled Ms. Harding-Plambeck. V.

Analysis [69] Undue influence and lack of testamentary capacity are two separate arguments. [70] The leading case on testamentary capacity, which has often been applied in Alberta, is Banks v Goodfellow (1870), LR 5 QB549 at 565, 39 LJQB 237, [1961-73] All ER Rep 47(Eng QB): [56] It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understandthe extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to giveeffect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or preventthe exercise of his natural faculties - that no insane delusion shall influence his will in disposing of his property and bring about adisposal of it which, if the mind had been sound, would not have been made. [71] In Banks, the testator believed that he was being molested by evil spirits, but the will was nonetheless upheld because of thelack of a connection between that delusion and the dispositions set out in the will. [140] A contemporary restatement of the Banks v Goodfellow test is found in Re Schwartz (1970) (ON CA), 2 OR 61(CA), aff’d (SCC), [1972] SCR 150, cited in Re Weidenberger (Estate) 2002 ABQB 861: [34] The Testator must be sufficiently clear in his understanding and memory to know, on his own, and in a general way (1) thenature and extent of his property, (2) the persons who are the natural objects of his bounty, and (3) the testamentary provisions he ismaking; and he must, moreover, be capable of (4) appreciating these factors in relation to each other, and (5) forming an orderly desire asto the disposition of his property. [72] Undue influence arises if the testatrix’s Will does not reflect her will, but the will of another, who has “. . . expressed his orher will through the testator” (Kozak Estate (Re), 2018 ABQB 185 at para 3).

In Kozak Estate, Renke J provided a cogent and helpfulsummary of the law concerning undue influence, noting the emphasis in the authorities on “coercion”, “victimization” and“manipulation” and citing with approval the following statement made by Cullity J in Scott v Cousins, 37 ETR (2d) 113, 2001CarswellOnt 50, [2001] OJ No 19 (SC): [113] The following comment in Williams and Mortimer, Executors, Administrators and Probate, (17th edition, 1993), at page 184 …is, I believe, an accurate statement: Thus undue influence is not bad influence but coercion.

Persuasion and advice do not amount to undue influence so long as the freevolition of the testator to accept or reject them is not invaded. Appeals to the affections or ties of kindred, to the sentiment of gratitude forpast services, or pity for future destitution or the like may fairly be pressed on the testator. The testator may be led but not driven and hiswill must be the offspring of his own volition, not the record of someone else’s. There is no undue influence unless the testator if hecould speak his wishes would say “this is not my wish but I must do it.”

[73] Renke J concluded his discussion of this issue: [8] There is more than one way to cause another to do one’s will. Coercion or threat, involving force or promise of force fallingalong a spectrum of severity is one way. Controlling or manipulating judgment and desire is another. Considering manipulation or fraudas types of undue influence does not depart from the proper nature of undue influence.

In these cases, as much as in cases of coercion, thewill expressed is not the testator’s actual will, but the set of choices produced by the person responsible for the manipulation or fraud.The will does not represent what the testator would have chosen, without or absent or but for the manipulation or fraud. [74] I agree with Renke J. [75] I emphasize that I am not trying the merits of this action. This application is about

summary dismissal. I am not making thesubstantive decision about Eileen’s capacity or whether she was unduly influenced. [76] Here, there are strong areas of opposition in the evidence. The positions of the Applicants and the Respondents are polarized.There are evidentiary determinations that can only be properly made through the trial process, including issues of credibility. As theSupreme Court of Canada held in Goudie v Ottawa (City), [2003] 1 SCR 141, 2003 SCC 14 at para 32: “[g]enerally, if there is an issueof credibility which is material,

summary judgment will be refused: Irving Ungerman Ltd v Galanis (1991), (ONCA), 4 OR (3d) 545 (CA).” [77] The facts are clearly contested in the conflicting Affidavits, some of which have not been tested on cross-examination. Aconflict between Affidavits cannot be disposed of in a

summary proceeding: Surrendi Estate v Surrendi, 2001 ABQB 1099 at para 48.Trial evidence has nuance and context. There will have to be a fulsome finding of facts, a weighing of the facts, inferences drawn fromthe facts, in order for the Court to make findings on the issues of capacity and undue influence. There are legal questions around howsuch determinations will be made. Where the evidence on the record supports the inference that better evidence will be available at trial,then dismissing the application for

summary judgment is warranted: Axcess Mortgage Fund Ltd v 1177620 Alberta Ltd, 2018 ABQB626 at para 43. [78] Finally, the evidence before me contains a great deal of hearsay about Eileen’s intentions and influences on her intentions. Atrial is necessary to consider whether the traditional or principled exceptions to the hearsay rule are engaged. This will require a trialjudge to apply the law to the facts as they emerge at trial: see Milavsky v Milavsky, 2015 ABQB 395 at para 65. [79] There is evidence that at minimum Eileen had a mild cognitive impairment at the time that the 2009 Will was executed.

Thiswas recognized by her lawyer and by family members. It is confirmed by her doctor. The evidence diverges strongly on points ofinterpretation and degree. [80] Teresa minimizes Eileen’s behavioural changes or explains them away, putting a benign

interpretation on, for example, theextraordinary steps taken by Eileen to keep cats out of her yard, denying the import or even occurrence of certain conversations, andinterpreting other evidence in ways favourable to her position. Teresa does, however, acknowledge in her cross-examination transcriptthat Eileen had “. . . trouble with finding the proper words, finding words, remembering names, misplacing things.” [81] The untested third party evidence strongly supports and corroborates the Respondents’ position. Since their evidence has notbeen tested on the record, that evidence has to be taken on face value. Applicants for

summary judgment must put their best foot forward(Windsor v Canadian Pacific Railway Ltd, 2014 ABCA 108), and here the Applicants have fallen short. [82] While Mr. McLaughlin’s efforts to create a strong evidentiary record to support his conclusions concerning Eileen’s capacityare commendable, he did not know Eileen prior to October 30, 2009. He had no comparators. He was aware of her “mild impairment”(as he characterized it on cross-examination) and initially suggested to Eileen that she enter into an immediate Enduring Power ofAttorney. Further, while seeking independent legal advice from Mr.

McLaughlin is a significant factor to be considered in determiningwhether the 2009 Will was the product of undue influence, “[s]eeing a lawyer is not an inoculation against undue influence” (KozakEstate at para 16). [83] The parties have different

interpretations about the degree to which the video supports or detracts from any conclusions aboutEileen’s mental state and testamentary independence. [84] The video is an important piece of evidence, but it is not by itself conclusive to a degree that makes the Applicant’s positionunassailable. It is not a basis for a fair and just determination of the issues. In fact, the video may raise questions about the strength of theApplicants’ case. In the video, Mr. McLaughlin had to remind Eileen that she was excluding Dennis as a beneficiary.

She exhibits whatmay or may not be capacity-related confusion during the video. The video does not show the witnessing of the Will. It is evident thatEileen initially signed the Will in the wrong place and then had to resign it. The trial judge will assess the degree to which Eileen’sdemeanour, responses and the tenor of the conversation in the video reveal (or do not reveal) Eileen’s mental condition and free choice inher estate intentions. [85] Without having Mr. McLaughlin present, giving live evidence and subject to cross examination, the video is not conclusiveeither way.

The entire circumstances of the video must be addressed, and this can only be done in a trial context. There are subtleties andnuances in behaviour that may not be fully captured by the video and audio. The angle, the quality, the view, and other factors related tothe physical and technical act of recording can affect the value of the recording as evidence. The trial judge will have to assess theprobative value of this evidence. [86] Further, there is evidence that Teresa was involved in introducing Eileen to Mr. McLaughlin, helping gather Eileen’s financialinformation and then providing it to Mr.

McLaughlin, who himself was “extensively involved” in gathering this information. The trialjudge will be able to assess Teresa’s explanation for why she brought Eileen with her to the initial meeting with Mr. McLaughlin andwhy she choose to consult him about a litigation matter when his practice focused on wills and estates. The trial judge will be bestpositioned to determine if and how that evidence impacts her or his findings around capacity and undue influence.

[87] Parenthetically, I note that while Teresa provides reasons for the reduction of Steven’s share and for Dennis’ completeexclusion from the estate, there does not seem to be any explanation for why Eileen choose to be generous to Junifer while excludingother grandchildren. Again, the trial judge will be best positioned to assess the relevance of this fact. [88] Finally, there are issues around the timing of Eileen’s assessment by Dr. Hosford and the signing of the letter, which wasprepared by her lawyer. The Respondents contend that Dr. Hosford’s opinion is not to be taken as an expert opinion.

The weight to be given to Dr. Hosford’s evidence, documentary or otherwise, will be a matter for trial. VI. Conclusion [89] Even on the broadest application of Rule 7.3 and Hryniak¸ I am not able to make a fair and just determination on the merits ofthis action based in a

summary proceeding. Although I am cognizant of the advantages of

summary proceedings given the resources ofthe Courts and the parties, the ultimate purpose of adjudication is to fully and properly reach a decision based on all of the evidence,including how the evidence is presented. That cannot be done in a

summary process in this case. [90] In sum, it is not possible to conclude on the evidence before me whether or not these tests respecting testamentary capacityand undue influence are met or not met, since they involve a complex and thorough, quasi-forensic analysis of the testatrix’s emotionaland psychological state, her intentions and the actions, and the intentions and motivations of several other people who were around her atthe time of the 2009 Will. There are genuine and significant points of variance in the evidence. A trial is necessary to determine the truth.On either of the tests currently promulgated by the Court of Appeal, the application for

summary dismissal under Rule 7.3 fails. [91] Applying the test in Composite Technologies Inc, the Applicants’ position is far from “unassailable”. It is not possible todetermine the likelihood of success on either side of the issues from the record (Composite Technologies Inc at para 76). [92] Applying the test in Stefanyk, the same conclusion is reached. In looking at the record, it would not be “fair and just” todecide this case on a

summary basis applying the civil standard of proof. I cannot make the fact findings that would be required. A trialis most certainly necessary as “ . . .there is a reasonable expectation that a better evidentiary record will be created by a trial . . . becausethere are disputed issues of material fact, or issues of credibility, that cannot fairly be resolved summarily (Stefanyk at para 15).Summary dismissal would not result in a “fair and just procedure for both parties” (Stefanyk at para 16, citing Abbey Lane Homes vCheema, 2015 ABCA 173 at para 22). [93]

Summary judgment can be, and sometime is, a proportionate, more expeditious and less expensive means to achieve a justresult than a trial. However, before that can occur, the court must have before it all of the necessary evidence to make findings of factand be able to apply the law to the facts. This is not the case here. Instead, this is a case of the sort referred to in Hryniak (at para 51) - acase where “given the nature of the issues and the evidence required, the judge cannot make the necessary findings of fact, or apply thelegal principles to reach a just and fair determination”. [94] Accordingly, the application for

summary dismissal is dismissed. VII.

Costs [95] The traditional approach by which all costs in estate litigation were ordered to be paid out of the estate has been displaced.The modern approach is to scrutinize the litigation carefully to restrict unwarranted litigation and protect estates from being depleted bysuch litigation: McDougald Estate v Gooderham (2005), (ON CA), 199 OAC 203 at para 80, 255 DLR (4th)435, 17 ETR (3d) 36 (CA). [96] In a leading case, Foote Estate (Re), 2010 ABQB 197, aff’d 2011 ABCA 1, leave to appeal denied, , 2011CarswellAlta 1125 (SCC), Graesser J summarized the principles governing costs in estate litigation (at para 16): 1.

The Court has a discretion with respect to costs, but that discretion must be exercised judicially (Babchuk [v Kutz, 2007ABQB 81] at para. 5); 2. The “modern” approach to costs in estate litigation requires careful scrutiny of the litigation to restrict unwarrantedlitigation and protect estates from being depleted by such litigation (Babchuk at para. 6); 3. Payment of an unsuccessful party’s costs out of the estate requires analysis of a number of factors: A. Did the testator cause the litigation? B Was the challenge reasonable? C. Was the conduct of the parties reasonable? D.

Was there an allegation of undue influence? E. Were there different issues or periods of time in which costs should differ? F. Were there offers to settle? (Babchuk at para. 8); 4. There is a residual discretion where factors such as who initiated the proceedings (Babchuk, para. 70), and the size of the estate

( Babchuk , para. 72) may be relevant; 5. Costs for a successful claimant in family relief claims are generally awarded on a solicitor and client basis ( Petrowski [ v Petrowski Estate , 2009 ABQB 753 ] , para. 62); 6. Costs in favour of an unsuccessful family relief claimant are an exception to the basic rule that costs follow the event ( Petrowski , para. 68 and para. 74); 7. Estate litigation is no longer treated as an exception to the basic rule that costs follow the event, approving St. Onge Estate v. Breau , 2009 NBCA 36 ( Petrowski , paras. 76 - 78 ); 8.

Costs will normally follow the event in estate litigation, unless the challenge to the estate was reasonable ( Petrowski at para. 78 ), or on the basis of a public policy exception recognizing society’s interest in only probating valid wills ( Petrowski at para. 79 ). [ 97 ] Graesser J reiterated these principles in another decision, Schwartz Estate v Kwinter , 2013 ABQB 147 at paras 111-124 . [ 98 ] In Kozak Estate , Renke J indicated that these principles apply equally to parties who have unsuccessfully challenged a will and to parties who have unsuccessfully defended a will found invalid because of their undue influence (at paras 20-22). [ 99 ] In my view, the application of the modern principle in this case is straightforward because the validity of the will has not yet been assessed.

I must simply ask whether the Applicants acted reasonably in bringing this application for

summary dismissal? The foregoing review of the parties’ positions leads inexorably to the conclusion that they did not – the Applicants should have known that the evidentiary record is incomplete, that issues of credibility and the evidence in conflicting Affidavits could not be resolved by

summary judgment, and that the irreconcilable factual allegations on evidentiary issues invite a trial. The most effective way to obtain an expeditious resolution of this dispute would be to pursue diligently the trial ordered by Ackerl J. This application was unwarranted and not a reasonable step. The estate (and the potential beneficiaries) should be protected from depletion. [ 100 ] The Respondents’ costs of this application shall be paid by the Applicants forthwith and I direct that these costs not be taken from the estate. Heard on the 17th day of August, 2018.

Dated at the City of Edmonton, Alberta this 5 th day of December, 2018. S.N. Mandziuk J.C.Q.B.A. Appearances: Erin Lafuente Dentons Canada LLP for the Plaintiffs/Respondents Robert A. Neilson Felesky Flynn LLP for the Defendants/Applicants