From Estate, 2019 ABQB 988

Court of Queen’s Bench of Alberta Citation: From Estate, 2019 ABQB 988 Date: 20191220 Docket: ES03 149077 Registry: Edmonton In the Matter of the Estate of Lorne Carl From also known as Carl Lorne From Between: Carla Papp Applicant - and - Randolph Carl From Respondent _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice J.H. Goss _______________________________________________________ 1.

Background [ 1 ] This is one of those unfortunate cases in which two siblings are divided over a parent’s will. [ 2 ] The Testator, Lorne Carl From ("Lorne"), died January 29, 2017, at the age of 75. He was survived by his two adult children, Carla Papp ("Carla") and Randolph Carl From ("Randy"). At the time of his death he had no spouse or adult interdependent partner.

[ 3 ] On September 15, 2015, Lorne executed a will (the "2015 Will") which left the entirety of his estate to Carla. Carla was appointed Personal Representative under the Will. [ 4 ] Carla filed an Application for Formal Proof of the September 2015 Will as Personal Representative, under Surrogate Rule 77(1)(a). [ 5 ] Randy has challenged the September 2015 Will on the basis that Lorne lacked testamentary capacity.

Specifically, Randy has alleged that Lorne's impaired cognitive function, paranoia and delusional beliefs influenced his testamentary dispositions, rendering his Will invalid. [ 6 ] For the reasons that follow, I find that the September 2015 Will is invalid . 2. Evidence [ 7 ] The evidence on this application includes both Affidavits and transcripts from Questioning on Affidavit.

There was no oral evidence. [ 8 ] In support of her application for Formal Proof of Will, Carla has filed the following affidavits: • February 2, 2018, Affidavit by Personal Representative of Carla Papp; • February 2, 2018, Affidavit in Support of Formal Proof of Will of Carla Papp; • July 12, 2018, Affidavit of Dr. Colleen Friesen; • July 18, 2018, Affidavit of Randall Osgood; • April 30, 2019, Affidavit of Dr. Gregor W. Jason (with Expert Opinion); and • September 16, 2019, Supplemental Affidavit of Dr. Gregor W.

Jason. [ 9 ] In response to Carla's application for Formal Proof of Will, Randy has filed the following affidavits: • September 5, 2017, Affidavit of Randolph Carl From; • October 9, 2018, Affidavit of Larry Woloshin; • October 9, 2018, Affidavit of Harry Sawh; • October 9, 2018, Affidavit of Harry Deonie; • October 9, 2018, Affidavit of Dawn LeMay; • October 22, 2018, Affidavit of Dawn From; • October 30, 2018, Supplemental Affidavit of Randolph Carl From; • December 6, 2018, Affidavit of Kendall From; and • January 23, 2019, Affidavit of Dr. Arlin Pachet (with Expert Opinion). [ 10 ] Dr.

Colleen Friesen, Randall Osgood, Dr. Gregor W. Jason, Larry Woloshin, Harry Sawh, Harry Deonie, Dawn LeMay and Randy were questioned on their affidavits, excepting the final Affidavit of Dr. Gregor W. Jason. Background Facts [ 11 ] The facts are not materially in dispute. There is no significant conflicting affidavit evidence. As will be seen, the key area of factual dispute is the conclusions drawn by the experts. [ 12 ] In 1987, Lorne founded Trailers Unlimited Inc., ("Trailers Unlimited"), a company that manufactures trailers for sale or rent. He was the sole owner.

The first business location for Trailers Unlimited was at 12235 William Short Road, NW Edmonton, Alberta (“William Short Property”), which lands were owned by Trailers Unlimited. Randy worked with his father at Trailers Unlimited throughout, starting at 12 years old, initially for no pay. In 1992, after graduating high school, Randy started working full-time in the business. Randy was only paid for his overtime hours once he turned 21. Randy deposes that to compensate for the low pay, Lorne always expressed full intentions to make Randy a part owner.

At questioning, Randy’s memory was that, “[Lorne’s] intention was always that I was going to own the company” – an intention that Lorne began discussing with Randy as early as 1988 (Randy’s Transcript, page 14, lines 2-8). [ 13 ] In 2000, Lorne transferred 40 percent of his Class "A" Common Voting Shares in Trailers Unlimited to Randy, who was then 25 years old. The shares were a gift.

Lorne retained the remaining 60 percent of the Class "A" Shares. [ 14 ] In 2001, Lorne made a will (the “2001 Will”) by which he gave his remaining shares in Trailers Unlimited to Randy and then divided the residue of his estate equally between Randy and Carla. It was prepared by his then solicitors, Schwab, Schwab and Schwab.

[ 15 ] On September 27, 2004 Lorne suffered a stroke. [ 16 ] It is Randy’s evidence that in January, 2007, the business was transferred to Randy through the sale of Lorne's three remaining Class "A" Shares, based on a process devised by Ronald Agar, the Trailers Unlimited accountant. Mr. Agar determined the fair market value of the assets of the company were $850,000 as at January 28, 2007.

The sale was conducted as two transactions. [ 17 ] Prior to the sale of the shares, Trailers Unlimited declared a stock dividend of $1,600,000 from the company’s retained earnings, for all Class "A" voting shares, which dividend was paid by the issuance of Class "E" Preferred Shares to Lorne and Randy. Lorne and Randy transferred their Class "E" Preferred Shares in Trailers Unlimited to their personal corporations, Shuttle Trailers Inc. (“Shuttle Trailers”) and 1291209 Alberta Ltd . (“129 Alberta”) respectively.

Trailers Unlimited then redeemed the outstanding Class "E" Preferred Shares, paying Lorne's corporation $960,000 and Randy's corporation $640,000. [ 18 ] In the second transaction, Randy's corporation, 129 Alberta, purchased Lorne's three Class "A" Voting Shares for $500,000, paying Lorne's corporation, Shuttle Trailers, two annual instalments of $250,000 each. Lorne reported the disposition of the common shares on his 2007 tax return, filed April 2008.

He claimed half the capital gains exemption on his 2007 return and the other half on his 2008 income tax return filed in April 2009. [ 19 ] Randy deposes and states at questioning that, according to Mr. Agar, the value to be paid for Lorne' s shares was based on "the highest amount Lorne could get without being audited" by Canada Revenue Agency. Randy was not involved in the valuation, and there were no negotiations between Lorne and Randy as to what Randy would pay for the shares.

When questioned on the method of valuing Lorne's shares, Randy stated "I believe my dad probably doesn't know how they came up with it." The evidence is that no fair market valuation of Lorne's shares in Trailers Unlimited was ever conducted. The business operated out of the William Short Property, lands owned by Trailers Unlimited. Randy deposes that the value of this business location was never appraised. Randy deposes that at no time was the company ever worth $10 million, as Lorne alleged several years later. Since he acquired control of the business, Randy has grown it.

Randy deposes that he allowed Lorne to remain as a signing authority on the company bank account held at Alberta Treasury Branches. [ 20 ] Lorne was known to his friends and coworkers as a private person who did not speak about financial matters. There is no evidence that Lorne discussed the specific terms of the sale of his shares in Trailers Unlimited with them. [ 21 ] Randy deposes that Randy and Lorne maintained their close relationship after the sale. Lorne continued to socialize at the business. Randy directed his staff to assist Lorne with whatever he may need, from time to time.

Lorne remained a little active in the business for a few years after the sale, but gradually decreased his involvement. Lorne continued to use a personal company gas card and still had his oil changes and other things done for him at the business location. Lorne might have delivered a trailer on occasion, but he largely removed himself from the business. [ 22 ] Randy deposes that after he paid Lorne for his shares, Lorne bought a boat, a motorhome and antique cars.

He spent about $600,000 and also lost about $200,000 on a bad investment. [ 23 ] In April 2008, Lorne filed his tax return wherein he declared one-half of the capital gains on the sale of his shares in Trailers Unlimited. [ 24 ] In April 2009, Lorne filed his tax return wherein he declared the other half of the capital gains on the sale of his shares in Trailers Unlimited. [ 25 ] On January 5, 2012, Randy opened a Servus Credit Union account and closed the company’s ATB account.

On August 28, 2012, Lorne was added as a signing authority on the Servus Credit Union account, even though there was no reason for him to be a signing authority. Randy deposes that he let him buy himself things with Trailers Unlimited money to keep him happy. [ 26 ] Randy deposes that in 2012, on the advice of the then corporate accountant, Ron Agar, a Rollover Agreement was entered into between Trailers Unlimited and 1291209 Alberta Ltd. with respect to the William Short Property. There were also some share transactions.

Randy’s accountants, Kingston Ross Pasnak, reviewed the transactions and identified that the transaction would generate a tax liability of approximately $800,000 as the transactions were not done properly. A Rectification Order was obtained from the Court of Queen's Bench of Alberta on August 27, 2014. Randy believes the notation in the notes made by Mr. Osgood, the lawyer who prepared Lorne’s 2015 Will, reading, "Fed Govt closed him Down" refers to this reassessment. [ 27 ] Lorne began seeing his doctor, Dr. Colleen Friesen, in October 2012 at age 70.

She practices family medicine at the Copeman Healthcare Centre (“Copeman”), in Edmonton. When Lorne joined the Copeman, a note in his medical file on October 4, 2012 states that his “current concerns” were as follows: “Had a stroke in 2004 and feels like he never fully recovered, shortness of breath, memory problems.” Under “support systems,” the medical file on the same date states “good relationship with his children.” Dr.

Friesen confirmed her entries to the records and that these were records within her control. [ 28 ] In February of 2013, Lorne had coronary artery bypass surgery. [ 29 ] Randy deposes that he noticed a significant change in Lorne’s behaviors in 2014. Lorne would attend at the business premises, pick fights with staff, and direct verbal abuse at Randy and at the staff. At times, Lorne would forget where he was or why he had come to the shop in the first place. Lorne had a key to the business premises and would attend both during business hours and after hours, and remove items that belonged to the company.

Randy was alerted by the alarm system to Lorne’s presence. Rather than get into an argument with him, Randy would just let him take the stuff. [ 30 ] Randy and Lorne maintained a close relationship and until the last couple of years of Lorne’s life Randy saw him almost daily. [ 31 ] Early in 2015, a related company owned by Randy purchased some lands in Parkland County, and Trailers Unlimited began to

operate primarily from that location (“Stony Plain Property”). Randy’s evidence is that Lorne was initially pleased that the business bought the second property, but a few days later Lorne became enraged and confronted Randy about the transaction. Lorne apparently believed that he owned the William Short Property and alleged that Randy had stolen it from Lorne by mortgaging that building to purchase the Stony Plain Property.

Randy said Lorne was “enraged,” “he was crazy,” “he wasn’t making any sense” and found “it was impossible to even talk to him” during this confrontation (Randy’s Transcript, page 52, lines 14 through to page 53, line 22). Randy deposes that he did not use those lands for financing to purchase the Stony Plain Property. There is no evidence that prior to this, for a period of eight years, Lorne ever expressed any belief that he was the owner of the William Short Property.

Randy said in questioning that it was “near 2015” that Lorne “all of a sudden” started believing that he was the owner of the William Short Property (Randy’s Transcript, page 51, lines 9-27). [ 32 ] On May 1, 2015 Lorne suffered another stroke and was hospitalized. [ 33 ] Randy stated at questioning that at some point before the May 2015 stroke, Lorne said he was forced to sell his motorhome because he claimed he had no money, which Randy opined “didn’t make any sense because he had money.” Randy believed Lorne “thought the whole world was out to get him” (Randy’s Transcript, page 68, line 13 through to page 69, line 10). [ 34 ] Randy deposes that Lorne became more abusive towards Randy and would tell the staff that Randy was an asshole.

Either a few weeks before he had his stroke, or possibly on the day of the May 2015 stroke, Randy told Lorne that he had to stop being abusive. Randy also told him that he was spending too much money on the company credit card. Lorne called Randy "a fucking asshole," formed a fist, swore at Randy again, told Randy that he owed Lorne $1 million and said he was going to keep standing there until Randy wrote him a cheque for that amount. Randy told Lorne that he was not going to pay Lorne $1 million.

At questioning, Randy recalled this incident and stated that Lorne “was throwing things and acting absolutely crazy” and that “he threw the pens and stuff,” observing that Lorne “was just not – not thinking right [...] It was just such a – such an aggression” (Randy’s Transcript, page 62, line 19 through to page 63, line 3). Lorne stormed out of the building telling Randy that he was going to ruin Randy. Randy was concerned that he would go to the bank and withdraw the monies he claimed Randy owed him so Randy immediately removed Lorne as a signing authority on the Servus Credit Union bank account.

Randy also cancelled the company credit card out of concern that Lorne would incur unreasonable charges in an attempt to collect the money he claimed Randy owed him. Lorne continued to maintain a belief that Randy owed him $1 million. Between 2007 and 2015, Trailers Unlimited had paid gas and other items for Lorne totalling over $73,000. [ 35 ] Randy stated that, following the May 1, 2015 stroke, Lorne continued to attend at the shop. His behavior towards Randy and the staff became more aggressive, demanding and rude. Randy stated that "some days [Lorne] was - some days he was perfectly fine.

He talked like everything was wonderful" (Randy's Transcript, page 59, at lines 21 – 25). Lorne continued to challenge Randy that he owed Lorne more money for the shares Randy had purchased. Lorne also complained that he had no money. These complaints became more common in the last six months of his life. [ 36 ] On May 14, 2015, Lorne scored 16/30 on the Montreal Cognitive Assessment (MoCA), version 1. Areas of deficit were design copy, attention, abstraction and delayed recall (0/5). [ 37 ] On June 15, 2015, Lorne scored 19/30 on the MoCA, version 2.

There were issues with copy design, attention, language, abstraction and delayed recall (1/5). [ 38 ] On September 4, 2015, Lorne attended at lawyer Randall Osgood's (“Osgood”) office to discuss planning his estate. Osgood has 34 years' experience in wills and estate law and has completed approximately 1,000 wills. Osgood deposes that he had not acted for Lorne previously.

Only Lorne and Osgood were present for the meeting which lasted approximately 1 hour and 40 minutes. [ 39 ] It is Osgood’s evidence that at the meeting, Lorne indicated that he had two children, Carla and Randy, and knew about his grandchildren. Lorne was able to list his assets and provided backup documentation. [ 40 ] Osgood deposed that Lorne also advised him that he had a history of gaps in his memory. He advised Osgood that he was recovering from strokes he suffered, but did not tell him how many strokes he had suffered, or when he had suffered them.

He told Osgood that his "brain [was] shot" (Osgood Transcript, page 2, line 10). [ 41 ] Lorne told Osgood that Lorne had sold his business, Trailers Unlimited, to Randy, but due to his memory gaps, he did not know the details of the business sale. He knew his son had his business and couldn't remember exactly how. Lorne felt that the business sale may have been unfair and that he may not have received fair market value for his shares. Lorne did not know the terms of the sale of Trailers Unlimited and could not recall the sale price.

He stated that he believed Trailers Unlimited had been worth $10 million in 2003 and was likely worth $1 to 2,000,000. Osgood could not say whether that was “in 2015 dollars or 2007 dollars” (Osgood Transcript, page 32, line 14). Lorne also stated that the federal government had shut down the company.

He had no paperwork regarding the January 2007 transactions but did provide Osgood with a balance sheet for Trailers Unlimited as at March 31, 2003, a bank statement ending January 31, 2004 and a statement of income for the 9-month period ending September 30, 2006, which showed: - The shareholder equity at March 2002 was $898,381; - The shareholder equity at March 2003 was $1,256,517; - The bank account balance at January 31, 2004 was $1,142,092.90; - The net income for the 9-month period ending September 30, 2005 was $213,984; and - The net income for the 9-month period ending September 30, 2006 was $229,678. [ 42 ] Osgood says he did not “review” and only “glanced” at the documents “because they were older documents” (Osgood Transcript, page 28, lines 20-27; page 29, lines 8-12).

Lorne asked that Osgood request documentation regarding the sale.

[ 43 ] Osgood’s notes taken at that meeting reflect Lorne stating, “I believe I own. Need to find out” regarding the William Short Property (Osgood Transcript, page 4, lines 11-12). Osgood later confirmed that Trailers Unlimited owned the business location and that Lorne still owned the property he resided on, known as the farm. [ 44 ] Lorne advised Osgood that he wanted Carla to be the sole beneficiary of his estate because he felt that the sale of his business to Randy may have been unfair to Lorne, and that Randy had benefitted greatly from the sale.

Lorne told Osgood that he did not want to include Randy as a beneficiary under his will because he “thought his son didn’t need the money,” “his son didn’t have any children, his daughter does” and "he didn’t think he got fully paid for what the company was entirely worth" (Osgood Transcript page 27, lines 24-25; page 28, lines 2-3, lines 4-6). Osgood states at questioning that he accepted Lorne’s narrative that Randy had been set up in a “profitable” business , because he did not see any financial records to confirm or deny the profitability of the business (Osgood Transcript, page 57, lines 4-19).

Osgood suggested to Lorne that Randy likely purchased the shares through a rollover arranged by his accountant at his direction, so it might be possible that if he did not pay what he thought the business was worth, it was the value he likely agreed to, based on information from the accountant. [ 45 ] Lorne was also unhappy that he no longer had some of the "perks" from owning the business, such as the gas card or the car. Lorne was hurt by what he thought was a misrepresentation by Randy, perhaps on a website, that Randy was the founder of Trailers Unlimited.

Randy denies that he ever held himself out as the founder of the company on a website or at all. [ 46 ] Osgood’s takeaway from that meeting was that Lorne felt that his son had not paid fair market value, or at least what Lorne thought it was worth, for the business that Lorne felt he had grown. Lorne was also slighted that his son was calling himself a founder.

Lorne wasn't challenged on that (Osgood Transcript, page 32, line21 through to page 33, line 12). [ 47 ] Due to Lorne advising of his memory gaps, Osgood deposes that he was alive to the issue of whether Lorne had testamentary capacity and the possibility the will might get challenged. Osgood recommended Lorne undergo a mental state evaluation with a medical professional. Lorne advised that his doctor had given him a clean bill of health on his current capacity but acknowledged his memory remained bad. Osgood wanted Lorne to obtain a medical opinion in writing.

Lorne declined. [ 48 ] On September 15, 2015, Lorne attended Osgood's office to review and sign the Will (the "2015 Will"), along with Power of Attorney and Personal Directives which Osgood had prepared. Osgood had no direct communications with Lorne between these two meetings. At the meeting Osgood asked again about a doctor's opinion and Lorne was adamant his son would not challenge the Will. Lorne did not want to pursue a report. Lorne did not permit Osgood to contact his doctor (Dr. Friesen) directly to confirm the doctor’s assessment of Lorne (Osgood Transcript, page 34, lines 2-19).

Osgood states at questioning that he relied on Lorne’s assurance that he had met with his doctor and that his doctor had confirmed Lorne’s capacity to make a will (Osgood Transcript, page 57, lines 20-24). [ 49 ] Osgood reviewed each provision of the Will individually with Lorne while Lorne read along. It appeared to Osgood that Lorne read the entire Will. [ 50 ] Osgood deposes that he drew specific attention to paragraph 6(

g) of the Will, reading: I have carefully considered and believe I have already more than adequately provided for my son, RANDOLPH LORNE FROM, during my lifetime and therefore leave none of my estate to him or his children, should he have any. [ 51 ] Osgood advised Lorne that this meant Randy would not receive a gift under the Will. Lorne then indicated verbally that he did not want Randy to receive a gift as Lorne felt that Randy had benefitted enough from the business sale. From Lorne’s statement, Osgood understood that paragraph 6(

g) of the Will accurately reflected the reasoning behind removing Randy as a beneficiary. Once the Will was reviewed, Osgood's assistant Gayle Ness entered the room and the Will was duly signed by Lorne, Osgood and Gayle Ness, in the presence of each other. This second meeting lasted 1.1 hours. Osgood deposes that when Lorne signed the Will, Osgood believed Lorne was competent to sign the Will. Lorne was then 74 years of age. [ 52 ] At both the September 4 and September 15, 2015 meetings, Osgood found that Lorne spoke politely and articulately, and did not seem confused or angry.

He appeared to Osgood to be fully functioning mentally. His memory was still "not great," but Osgood had no reason to believe that he did not have the requisite mental capacity to provide directions or sign the Will. Nothing in his demeanor nor his statements led Osgood to believe he lacked testamentary capacity at these two meetings.

Osgood deposed that “[i]f Lorne was labouring under a misconception he had not received adequate compensation for his business, we suggested that was unlikely but would seek the information and we did provide the same to him after receipt of the same.” Osgood acknowledged that his notes from his meetings with Lorne were not thorough. [ 53 ] It was Osgood’s opinion that at the initial meeting with Lorne when he gave Osgood his instructions and again at the time the Will was executed, Lorne had testamentary capacity, because • he appeared to have full and accurate knowledge as to the extent of his assets; • he was aware that children are typically included as beneficiaries under a will; • he understood that Randy would not be a beneficiary under the Will; • he understood that it would be considered atypical to not provide Randy a gift in the Will; and • he provided orderly instructions for the distribution of the estate. [ 54 ] Osgood deposed that he believed that Lorne may have been initially confused about the terms of the business sale, but he was aware, due to Osgood’s discussions with him, that the purchase price was determined by him and likely had been paid in full.

No witness was able to state positively whether or not Lorne was having a good day or bad day on either September 4, 2015, or September 15, 2015.

[ 55 ] Osgood states at questioning that he did not recall speaking to Lorne in person again after the meeting on September 15, 2015 (Osgood Transcript, page 49, lines 12-18). [ 56 ] On S eptember 21, 2015, Lorne advised Dr. Friesen that his lawyer recommended that he undergo a mental assessment to be sure that he did not have cognitive issues that could affect the validity of a will. For that reason alone, Dr. Friesen conducted a Mini Mental State Examination (“MMSE”), in which Lorne scored 28 out of 30, which is in the "normal" range. [ 57 ] Dr. Friesen agreed that the MMSE is not a test for executive function.

Dr. Friesen usually only conducts these types of tests as a screening tool to assess the degree of the cognitive impairment in order to determine treatment options. The test contains questions and tasks for the subject, and takes about 10 minutes to complete. The functions tested are recall, orientation, registration, attention and calculation, and language. [ 58 ] In her affidavit, Dr. Friesen stated that of all the questions and tasks contained in the MMSE, “the only items [for] which Lorne did not receive a perfect score was the “Recall”

section of the test, which required that he recall the names of 3 objects which were discussed in an earlier section. He was able to recall 1 of the 3 items.” Dr.

Friesen made the following notations in Lorne's medical file: • states is going through stressful period with his son; • his son [sic] has been taking money out of the business without speaking to him; • now his son is avoiding him; • on the day of his stroke, he had gone to discuss business with his son who ignored him and upset him; • was when he got home that he developed symptoms; and • has gone to a lawyer to help with the situation and update his will, power of attorney and [sic]. [ 59 ] After execution of the will, Osgood requested from Randy all relevant documents relating to the transaction for the purpose of investigating the purchase transaction.

Osgood received and reviewed a number of documents, including the corporate minute book for Trailers Unlimited and the January 4, 2007 share purchase agreement between Lorne and Trailers Unlimited. This was done "[t]o verify what our client understood to be the case - to be the case and to verify what I understood to be the case. What I advised him is that he planned the - I assumed he planned the transition." (Osgood Transcript, page 41, lines 13-19). [ 60 ] In a letter to Lorne dated October 22, 2015 , Mr.

Osgood enclosed photocopies of documents from the corporate minute book of 129 Alberta and advised Lorne to review the documents and Lorne’s bank statements “as it may very well be that you had been paid for all of your shareholdings at fair market value.” Lorne was encouraged to review the share restructuring with Lorne’s current and new accountant. Osgood stated: You might like to consider revising your Will if you are satisfied you have received full market value for your shares.

We note you signed some of the Share exchange documentation and therefore, presumably, were satisfied at that time with the series of transactions to be performed. You may also conclude you have set your son up in a profitable business and have adequately provided for him. [ 61 ] No response to the letter was received by Osgood.

A copy of the letter was found in Lorne’s belongings after his death. [ 62 ] Carla deposes that in her discussions with Lorne subsequent to the date of the letter, and up to his death, Lorne advised her that Randy had received enough from Lorne, that Randy was already well-off, and that the remainder should go to Carla. [ 63 ] Randy deposes that after the fall of 2015, Lorne became even more irrational.

He started calling Elder Abuse and accusing "someone" of embezzling one million dollars. [ 64 ] On April 27, 2016, Lorne suffered a third stroke. [ 65 ] Lorne passed away on January 29, 2017, approximately a year and a half after executing the Will. Up to his death, Lorne resided alone at his home in Edmonton, paid his own expenses, drove himself and operated tractors at his farm in rural Thorhild County, Alberta.

At the time of his death, Lorne had cash and investments totaling $645,251, and Shuttle Trailers had cash and investments of approximately $796,829. [ 66 ] Randy’s evidence is that after Lorne’s strokes Lorne became more abusive towards Randy. Lorne would become enraged, abusive and make no sense. In the last two years before his death, Randy saw his father less to avoid conflict. Randy knew his father was removing items from the shop because the alarm system would alert him, but he said nothing, again to avoid conflict.

Randy deposed that in the last six months before Lorne’s death, his father’s behaviour went from bad to worse. At questioning Randy explained that during this time Lorne “just didn’t make any sense” and “he was violent sometimes.” Lorne would forget “why he was somewhere” and would instruct someone to “do something to [his] motorhome and then he would come and scream that, you know, who touched my motorhome” (Randy’s Transcript, page 77, lines 3-19).

Randy also stated that Lorne became more paranoid towards the end, which included “thinking that the government was coming” (Randy’s Transcript, page 79, lines 23-25). [ 67 ] Carla deposes that she did not perceive any effect on Lorne’s mental capacity or emotional state resulting from the strokes. She saw no change in his emotions or his personality following the strokes. Carla resides in Cochrane, Alberta.

In the five years prior to Lorne’s passing, Carla would see Lorne approximately two to three times a year, and spoke to him on the phone approximately once a month and on special occasions like Christmas and birthdays. [ 68 ] Carla also deposes that Lorne had stated to her that he felt that he was "ripped off" in the 2007 share sale transaction, as the written agreement did not reflect the verbal agreement between Lorne and Randy. Lorne believed that he would still receive additional

income and have a role in Trailers Unlimited, and that Lorne was not paid everything he was supposed to be paid by Randy. Further, there was a dispute between Lorne and Randy in regards to the ownership of certain assets and whether they belonged to Trailers Unlimited or Lorne personally. [ 69 ] Dr. Friesen, Lorne’s family doctor, deposes that as a result of the strokes, Lorne had some weakness in his left arm and hand, which caused him to have somewhat shaky handwriting. Dr. Friesen refers to the strokes as minor as she did not believe they resulted in any significant cognitive problems. Dr.

Friesen acknowledged on questioning that her opinion regarding his capacity was based solely on Lorne’s self​reports (Friesen Transcript, page 32, line 10-12). Along with his history of strokes, Lorne suffered from an ulcer, hypertension, kidney and heart disease. [ 70 ] On August 30, 2016, Dr. Friesen made the following notation in Lorne's medical file: States is having a lot of stress with his son over business and finances and money that has been inappropriately taken, causing him great upset. [ 71 ] Dr. Friesen noted in the file that she encouraged Lorne “to discuss the situation with his daughter.” Dr.

Friesen stated that she had no knowledge that Lorne had sold his interest in Trailers Unlimited to Randy in January 2007, and she had no knowledge of the details of the transaction. Her primary concern was to provide Lorne with health services. [ 72 ] Dawn From (“Dawn”), Lorne’s brother, and Lorne had a close relationship and saw each other frequently, at least once a week, if not more up until Lorne died. He describes Lorne as fair and honest, but, like auto body mechanics kind of gruff. He said Lorne was not a mean person at all. Lorne was enjoying his farm, fishing and moose hunting.

Dawn observed that after Lorne's heart surgery, he was "like a pretty different guy" (Dawn Transcript, page 12, lines 1-4). Following his stroke in 2015, Lorne’s moods deteriorated and his anger increased. Dawn elaborated during questioning regarding Lorne “just kind of becoming not the same guy,” noting “[Lorne] was short” with people and “just talking about different things” (Dawn Transcript, page 14, lines 22-27). Dawn deposes that initially, when Lorne told him that he sold his trailer business to Randy, Lorne was satisfied with the change of ownership with no mention of any concerns with money exchanged.

However, following the deterioration of his health, he indicated to Dawn that he may not have been paid enough for the business. The week of his death, Lorne told Dawn he believed everybody was stealing millions of dollars from him and he had no money in the bank. Lorne said he was barred from the bank and asked Dawn to call the Elder Abuse Line. [ 73 ] Kendall From (“Kendall”), another brother of Lorne's, also had a close relationship with Lorne. Kendall resides in Manitoba. He used to help Lorne in his business and with his farm, going back and forth between Manitoba and Edmonton.

Throughout the years, Kendall talked frequently with him on the phone. In 2013 Lorne told Kendall he was going to leave the farm and house to Carla and the business to Randy. Lorne appeared to believe he still owned the company. Kendall observed a difference in Lorne before and after his strokes. Lorne was quick to anger and his memory was poor. From around May 2012 to February 2013, when Kendall stayed with Lorne, Kendall observed Lorne to lose his temper for no reason at all, yelling loudly and becoming belligerent. In 2017, while Lorne was in Winnipeg, he stayed at Kendall’s house.

During this visit, he suddenly, out of nowhere and for no reason, became so angry to the point of wanting to fist fight Kendall. [ 74 ] Harry Deonie (“Deonie”) knew Lorne for approximately 28 years as an employee since 1989 and as a close friend. He described Lorne as a fair person, hard working and decent. He stated that Lorne always told him his estate would be divided 50-50 between Randy and Carla. Until 2007, Deonie worked with Lorne “basically every day” (Deonie Transcript, page 4, lines 4-6).

After 2007, Deonie saw Lorne approximately two to three times a week before the May 2015 stroke and about once a week after the May 2015 stroke. Deonie personally observed a change in Lorne's personality and behavior before and after his strokes. He admits Lorne could be gruff at times but after his strokes, Lorne became more agitated, aggressive, yelling (at times) and just mean-spirited . At questioning Deonie said that Lorne told him “once or twice that his brain doesn’t work the same” (Deonie Transcript, page 26, lines 9-13).

After the stroke, Lorne would remove supplies from the shop, such as trailers and random tools, and take them to the farm and later forget that he had taken them. Lorne would go to the back of the shop where Deonie worked and forget why he was there. Deonie observed Lorne at the business location conducting himself in a manner described as “like he still owns it” (Deonie Transcript, page 21, lines 6-10; page 29, lines 1-23).

Neither Lorne nor Randy discussed the details of the 2007 Share Transaction with Deonie but after May 2015, Lorne would say that Randy still owed him money for the business and that he never got paid enough for the business. He would rant that he had no money and did not know where his money went. [ 75 ] Harry Sawh (“Sawh”) began working for Trailers Unlimited in about 2013. He saw Lorne approximately once a week. He deposes that Lorne's behaviour took a drastic turn after he had a stroke in May 2015. Lorne became very demanding with the staff.

He did not seem to grasp the concept that the customers had to be served first. He would get visibly upset with Sawh and complain that Sawh treated him badly. Occasionally, when Lorne asked Sawh and/or the staff for assistance, he would forget that he already made the request and then get mad. After his tantrum episodes, Lorne would return to the shop, typically within a day or so, and be the nicest person ever, acting as if nothing ever happened.

When asked if he remembered what had happened on his last visit, he would reply, "I have no clue what happened yesterday ." Lorne would take supplies from the shop, never return them and deny taking them. Sawh found Lorne’s decision-making process lacked clarity and that he sometimes made no sense. At questioning, Sawh explained that post-stroke, Lorne had trouble explaining what he wanted and how he wanted things to be done – something Sawh noted “almost every time” that Lorne came by the shop in the time period after his stroke.

Lorne “[c]ould be fine one moment and the next moment he could not” (Sawh Transcript at page 21, line 17 through to page 22, line 13). [ 76 ] Dawn LeMay ("LeMay" ) is the Office Manager for Trailers Unlimited and has worked there since 2011. LeMay saw Lorne about three to four times a week for an hour to two hours, until she transferred to the Stony Plain location of Trailers Unlimited in 2015.

LeMay said during questioning that Lorne would attend at the business location and sometimes tried to take over her job (LeMay Transcript, page 8, lines 14-20): A: When I would work because at the time I was working doing the rentals, I would start filling out a rental and he would kind of push me off to the side and he would want to do it, so just out of courtesy and respect, I would let him do it because he was talking to the customers and stuff like that.

[ 77 ] LeMay stated that Lorne continued to show up and interact with customers after May 1, 2015 (LeMay Transcript, page 9, lines 1-4). LeMay describes Lorne as being pleasant to be with, but after his stroke in May 2015 he was easily agitated, erratic, forgetful, more impatient and sometimes mean .

For example, LeMay explained at questioning that Lorne would get mad at her when she had difficulty understanding what he was asking her to search for on the internet, noting that before the stroke “he was usually pretty nice to me” and would not get frustrated with her like that (LeMay Transcript, page 23, line 25 through to page 24, line 13). Lorne would also frequently show up at the shop and not know why he was there or would show up at the shop to meet his brother or a friend for lunch, but would have the wrong day or the wrong week (LeMay Transcript, page 25, lines 15-18; page 29, lines 10-20).

He complained to LeMay that he could not think. Lorne told LeMay he did not know where his money was and that he needed to sell his motorhome to get money. At questioning LeMay stated “Just towards the end there when [Lorne] was trying to sell some of his stuff he kept saying, I have no money, I need to sell this” (LeMay Transcript, page 9, lines 18-20).

LeMay remembered that in the spring or summer of 2015, she helped Lorne sell his motorhome by advertising it on Kijiji for him, after Lorne came into the shop and demanded that one of the “fiberglass guys” fix it for him, saying “I need to sell this because I have no money” (LeMay Transcript, page 9, line 18 through to page 10, line 17; page 27, lines 8-13). Prior to his stroke in May 2015, Lorne was "on the ball" (LeMay Transcript, page 29, lines 21-23). LeMay describes an incident in about July 2015 when Lorne complained he could not think anymore (LeMay Transcript, page 28, lines 18-24): A: Yes.

He drew me a face and he was pointing on to the front of his (Indiscernible) and says, this doesn't work anymore, He goes, this doesn't work. I can't think, I don't know what's going on. Ms. Belzil: Can the transcript show that the witness is tapping her finger against her forehead, please. [ 78 ] LeMay says Lorne at times would “just yell at Randy” and would explode over frivolous matters and Randy would walk away (LeMay Transcript, page 12, line 23 through to page 13, line 15).

In August 2015, she noticed his anger with Randy was "more and more " (LeMay Transcript, page 13, 25-27 through to page 14, lines 1-4). [ 79 ] Larry Woloshin (“Woloshin”) was a business associate of Lorne's. He knew him for 28 years and they had weekly contact. Their relationship was more than a business relationship. Woloshin described Lorne as quiet, reserved and steady. He deposes that Lorne seemed proud that Randy took over the business. Woloshin never got the impression from Lorne that he was unhappy about selling it to Randy.

Woloshin saw Lorne less and less as Lorne removed himself farther and farther from the business. He noticed that Lorne was different in the few years before he died, he seemed out of it, not as sharp. He seemed aggravated. He got more adamant, more forceful, more intense, almost obsessed. Woloshin summed it up (Woloshin Transcript, page 13, lines 24-27 through to page 14, line 1): A: No, no. I mean, all I can tell you is that in the early to middle stages of our relationship, there was a sharpness and a coherence and a rhyme or a reason to Lorne, and at the end, that wasn't there.

It just wasn't the same Lorne. [ 80 ] Woloshin said Lorne also became more agitated with Randy in the few years before his death and thought that Randy was abusing him. Within a few months of Lorne's death, Lorne called Woloshin requesting some information about Trailers Unlimited (his wife was the bookkeeper for Trailers Unlimited) and seeking information about elder abuse. Expert Evidence [ 81 ] Dr. Arlin Pachet is a neuropsychologist and recognized expert in the area of capacity evaluations in Alberta. He is a specialist in decisional capacity assessment.

He has completed over 1,500 capacity evaluations, of which 125 were retrospective evaluations. He has dealt with a couple of hundred cases of delusion. [ 82 ] Dr. Pachet's repeated experience is that delusions are “circumscribed” and typically focused on only one family member. During questioning Dr. Pachet explained: A: My repeated experience has been that it’s typically a very circumscribed area of delusion, and that it’s often a family member – one family member in particular who’s being subjected to it, and it’s typically around paranoia and concerns about actions of a member of the family.

Being moved form the home, not being accessed to money, those kind of things. [ 83 ] Dr. Pachet opined further that because such a delusion is circumscribed and typically directed at one person, the appearance of that person will trigger the behaviour associated with the delusion, but “[w]hen that person removes themselves from the situation, we see a significant settling of that behaviour.” Dr.

Pachet noted that, according to the Diagnostic and Statistical Manual of Mental Disorders, 5th Edition (the “DSM-5”), one of the criteria of a delusional disorder is the fact that the delusion is pervasive and impactful in only one area of the person’s life, and that the individual otherwise retains functional abilities in other aspects of their life. In this context, Dr.

Pachet pointed to the fact that Lorne “was able to achieve quite a bit, from a functional perspective, post-stroke” including accomplishing day-to-day tasks, such as driving (Pachet Transcript, page 25, line 10 through to page 27, line 15). [ 84 ] Dr. Pachet completed a retroactive testamentary capacity evaluation of Lorne. In conducting the evaluation, he reviewed Lorne's medical records and stroke history and the Affidavit and questioning evidence. Dr.

Pachet opines that Lorne "likely" did not have testamentary capacity when he signed the Will dated September 15, 2015 because he appears to have struggled to accurately identify his assets, it is likely that significant cognitive and neurobehavioral issues persisted at that time, and it appears that Lorne's removal of Randy as a beneficiary of his Will was based upon malcontent and unjustified delusions of wrongdoings. Lorne appears to have a specific delusion directed toward Randy that influenced the disposition of his estate (Pachet Report, page 12). Dr.

Pachet confirmed at questioning that if there was no delusion of malfeasance then his opinion would be different. He would have wanted more information about Lorne’s assets as the rationale for change would have been “substantial benefit for Randy, without the delusional component” (Pachet Transcript, page 51, line 9-21). [ 85 ] Dr. Pachet discussed the criteria in Banks v Goodfellow

(1870) LR 5 QB 549, 39 LJQB 237, [1961-73] All ER Rep 47 (the “Banks Test”) and applied it to his understanding of the facts. In regards to the first branch of the Banks Test, understanding the nature of a will, Dr. Pachet indicated that Lorne likely would have had the ability to understand the nature of the will and its effect. Dr. Pachet agreed on examination that this branch of the test did not require perfect accuracy, only a general understanding of the assets.

[ 86 ] Dr. Pachet noted concerns with the second element of the Banks Test, understanding the general extent of one's assets. Dr. Pachet believed that Lorne's uncertainty as to the ownership of the William Short Property was a concern but, clarified on examination, " [t]he thrust of delusions of the mind is the main area for me, not the assets" (Pachet Transcript, page 20, lines 17-25).

The "thrust of the matter" is whether or not there was a delusion of malfeasance such that "[i]f Lorne thought he only was given an unfair amount, and if that is ending up being the proof that the courts accept, by the trier of fact or however it goes, then potentially it is justified that Lorne thought he was wronged, then the delusion of malfeasance would be no longer." (Pachet Transcript, page 33, lines 13 -22). In Dr.

Pachet’s opinion, regarding the second element of the Banks Test, Lorne's misunderstanding of his assets only put him on the "cusp of failure" – noting that it was an area of concern about which Dr. Pachet would have wanted more information (Pachet Transcript, page 19, line 4 through to page 20, line 25; page 50, lines 8-15). [ 87 ] In Dr. Pachet’s opinion, Lorne failed with regards to the last element of the Banks Test – “providing sound rationale for a change in the will” – due to Lorne’s delusions and paranoia about Randy (Pachet Transcript, page 50, line 23 through to page 51, line 8).

He stated that “the delusions were pervasive and…would have been impactful” (Pachet Transcript, page 51, lines 6-7). When asked to describe or define what he meant by the term delusion, Dr. Pachet answered “having a belief or a concern that isn't based in reality, that isn't substantiated, that he believes it to be true.” (Pachet Transcript, pages 21, lines 12 through to page 22, line 6). Dr. Pachet stated that delusional capacity has two fundamental components: the inability to understand the relevant facts and an inability to appreciate the consequences of taking or not taking actions. [ 88 ] Dr.

Pachet opines that Lorne's belief that he had been somehow financially wronged by his son in the sale of the shares was a delusion “because there’s no founding or basis for it” (Pachet Transcript, pages 23, lines 4- 5). The delusions affected Lorne's ability to appreciate the claims of those who may benefit from the Will. Since Lorne could not recall the details of the share sale transaction, Lorne could not have known how he had benefitted his son, Randy. Dr.

Pachet stated, “I question his ability to provide a sound and justified rationale for the significant and dramatic change in the distribution of his estate after death,” and “I expect that he would have struggled to substantiate or provide any evidence that would warrant such a change in his perceptions of Randy” (Pachet Report, page 9). Dr. Pachet concluded “it appeared that Lorne maintained the false belief that he is wronged financially by son Randy.

This delusion accounted for the significant change in Lorne's 2015 will, and appears to been based on incorrect and false rationales and assumptions, and would preclude him from changing the bequests in his will” (Pachet Report, page 12). At questioning, Dr. Pachet opined that Lorne’s decision to change the Will is more likely attributable to his delusion about Randy than to a belief that Randy had sufficiently benefitted through the business sale (Pachet Transcript, page 42, line 7 through to page 43, line 11). He states: A: I think it’s—even Dr.

Friesen alludes to it very clearly in one of her notes that – where she talks about him being upset with money taken by Randy, going to the lawyer to sort things out, change my legal documents. To me, there’s a repeating theme of his perception that Randy was unfair to him, and that changed his disposition, not that Randy had benefitted and had benefitted enough. Q: So you don’t believe that that’s a legitimate belief that Lorne could have held, that Randy benefitted enough? A: It might be a belief that he held, yes. Q: Wouldn’t that be a good rationale for changing the will?

A: If that was the only thing at play, potentially, but it’s not. [ 89 ] Dr. Pachet notes that there were not acute pathological changes noted in Lorne’s brain before the stroke on May 1, 2015. In April 2009 an MRI showed “nonspecific areas of increased T2 signal bilaterally, although somewhat more prominently in the right frontoparietal subcortical white matter and in the cortex,” but there was no indication of adverse acute intracranial pathology revealed in further neuroimaging on July 15, 2013 (CT scan) and no acute superimposed intracranial abnormality on August 1, 2013 (MRI).

However, after the stroke on May 1, 2015, neuroimaging showed pathological changes in the right frontal parietal region of Lorne’s brain and changes within the cerebral hemisphere, which Dr. Pachet considered to be the “most salient” changes (Pachet Report, pages 3-4; Pachet Transcript, page 7, line 8 through to page 9, line 11). Damage in this area of the brain is implicated in the onset of delusions and associated paranoia. These changes were not pre-existing. Under cross-examination, Dr.

Pachet discussed his opinion that Lorne's injuries shown in the imaging study, cerebellar lesions in the right frontal lobe, could result in a "labile" mood and the person being more cantankerous. At questioning, Dr. Pachet elaborated on what he meant by “labile” mood, saying “a person can be quite responsive to a situation more so than they would have in the past. They get angry faster, be more irritable, a bit quicker than they would have prior to their stroke.” Some people can "bounce back to a degree" from these injuries. Dr.

Pachet also opined that the damage obvious from this imaging study was not in itself determinative of incapacity (Pachet Transcript, page 8, line 9 through to page 10, line 25). Dr. Pachet was asked to approximate the prevalence of delusions or paranoia in people who had suffered strokes similar to Lorne's. Dr. Pachet put the figure between 4 and 7 percent. [ 90 ] Dr.

Pachet discussed the perceived changes in Lorne's behaviour following the May 1, 2015 stroke, noting that Lorne was “more agitated, meaner, not as friendly as he was prior to stroke." When the issue of “lucid intervals,” meaning Lorne was having good days and bad, was put to Dr. Pachet, he noted that the issue is not relevant to capacity as “[t]he underlying issues would still be present.” Dr. Pachet stated that the existence of these behavioural changes alone would not be determinative of capacity (Pachet Transcript, page 15, lines 8 -23, and page 17, lines 6 – 11). In Dr.

Pachet’s opinion, the strokes that Lorne suffered should be characterized as “more moderate” rather than “mild” (Pachet Transcript, page 45, line 22 through to page 46, line 20). Dr. Pachet reports that a MoCA score of equal to or less than 26 is indicative of cognitive impairment, but noted in questioning that a MoCA test cannot indicate whether someone suffers from delusions or paranoia – it only examines cognitive functioning (specifically memory orientation and aspects of executive functioning) (Pachet Transcript, page 48, lines 19-23). [ 91 ] On cross-examination, Dr.

Pachet said that it is pretty rare for a person of Lorne's age to recover cognitive function. Dr. Pachet also discounts the suggestion that a person can recover lost cognition, noting that a recent study suggesting that intermittent lucidity can occur has been discredited. Dr. Pachet notes that when someone has paranoia or a significant personality change, certain persons or situations may trigger behavior. Remove the person from the situation, and the individual can appear quite intact.

[ 92 ] Dr. Gregor Jason is a clinical neuropsychologist. He was retained to provide his expert opinion in regards to the mental capacity of Lorne and provide a rebuttal to the Pachet Report (“Jason Report”). Dr. Jason has completed more than 5,300 neuropsychological evaluations, more than 400 combined neuropsychological and vocational evaluations, approximately 10 retrospective capacity evaluations and 50 regular capacity assessments in his clinical practice. [ 93 ] Dr.

Jason reviewed Lorne’s medical history and documentation, the Affidavit and questioning evidence, some Trailers Unlimited documents including the corporate minute book from January 3 to 8, 2007, and Dr. Jason conducted a series of telephone interviews. Randy notes that the telephone interviews provided Dr. Jason with hearsay and anecdotal material, not sworn to in the Affidavits, upon which Dr. Jason relied. Randy further notes that some of the evidence and anecdotal information on which Dr. Jason relied was incorrect , including that Lorne advised Mr.

Osgood that he thought Trailers Unlimited owned the William Short Property (Jason Transcript, page 96, line 17 through to page 98, line 16). Lorne actually told Mr. Osgood that he thought he owned the property. [ 94 ] Dr. Jason was of the opinion that Lorne had sufficient knowledge of his assets, particularly once ownership of various assets was clarified by Osgood, to meet the first criteria of the Banks Test (Jason Report, page 17). [ 95 ] Dr. Jason challenged Dr.

Pachet's view of the existence of underlying paranoia and suspiciousness regarding Lorne’s intentions on the basis that there was no indication in all of the medical documentation of Lorne ever being paranoid or delusional intentions? Dr. Jason noted that there could be reasons for Lorne to have harboured negative feelings towards Randy regarding the circumstances of the sale of shares, including the fact that the share price did not appear to be based on a true evaluation of the company but rather on a desire to avoid being audited. Dr.

Jason raised a concern in his report about whether the sale of shares “was done in a proper manner” and noted the fact “that no lawyers were involved” (Jason Report, page 17-18). However, after evidence of Lorne’s communications with his solicitor regarding the 2007 Transaction was put to him during questioning, Dr. Jason conceded that Lorne did in fact contact his corporate solicitor about the 2007 Transaction (Jason Transcript, page 84, line 11 through to page 90, line 8). In an affidavit filed September 16, 2019 (after the questioning), Dr.

Jason added that, although it does appear that Lorne contacted his solicitor at the time of the 2007 Transaction, “there is nothing in these documents which indicate to me that [the lawyer] reviewed the terms of the transaction, such as the purchase price of the transaction or valuation of the lands which were owned by Trailers Unlimited, with Lorne” (para 12) and consequently Dr. Jason affirmed his opinion that Lorne could have reasonably believed that he did not receive proper value for his shares. Dr.

Jason also conceded during questioning that he had very little information about whether the valuation of the business was done properly or not, and stated he had no information about whether the 2007 Transaction was “legally concluded” (Jason Transcript, page 95, line 11 through to page 96, line 3; page 110, lines 17-20). Dr. Jason commented that, although Lorne agreed to the transactions at the time, it did not seem unreasonable that he may later have had misgivings about the fairness of the sale. Dr.

Jason notes that there are a number of reasons to question the assumption that there was no reason for Lorne to be suspicious or to lack trust. Dr. Jason then references hearsay evidence in addition to the affidavit evidence of Carla. Dr. Jason further commented that the actual wording of the Will reflected Lorne's belief that Randy was well taken care of, which could be a reasonable thought as the financial documentation that Lorne showed Mr. Osgood indeed suggested that Randy was doing well.

The idea that Lorne had already more than adequately provided for Randy does not require that he be deluded about the value of what Lorne had provided for him over the years through these means (Jason Report, pages 17, 18, 22, 23). Dr. Jason, however, agrees that if Lorne did not know the details of the 2007 Transaction at the time of making his Will, and if he was wrong about the belief that he had not been paid fair market value, he could not have understood whether or not he had already provided for his son, Randy (Jason Transcript, page 104, lines 20-25). [ 96 ] During questioning, Dr.

Jason agreed that at the time when Lorne gave instructions to Mr. Osgood for the preparation of his Will, he could not remember the details of the 2007 Transaction, nor could he recall whether he owned the William Short Property, but Lorne nevertheless maintained a belief that he was not paid fair market value for his company (Jason Transcript, page 101, line 18 through to page 102, line 2; page 103, line 27 through to page 104, line 10). Dr.

Jason admitted that if Lorne could not remember the details of the 2007 Transaction, it is “possible” that Lorne’s perceptions about whether he had received fair market value were unsound, and may have been delusional beliefs that affected his testamentary dispositions (Jason Transcript, page 104, lines 11-19). Dr. Jason’s definition of a “delusion” is when a reasonable person continues to hold irrational beliefs in the face of clear contradictory evidence (Jason Transcript, page 105, line 22 through to page 106, line 11). Dr.

Jason also agreed that, generally speaking, anyone who had interacted with Lorne would not have been able to detect whether or not he was suffering from a delusional belief unless that person had full information and was able to compare that delusion with the actual facts (Jason Transcript, page 114, lines 10-20; page 116, lines 21- 26). In an affidavit filed on September 16, 2019 (after questioning), Dr.

Jason maintained, however, that “even if Lorne was suffering delusions about the [sic] Randy regarding the transfer of the business, the actual wording of the will itself, which states that Lorne felt he adequately provided for Randy during his lifetime, was based on non-delusional reasons, so Lorne would not have lacked capacity” (para 15). [ 97 ] Dr. Jason also discussed Lorne's potential for improvement in cognitive function between the May 1, 2015 stroke and September 2015. There is an improvement by 3 points of the MoCA testing from May 14 to June 15, 2015. Dr.

Jason noted that the improvement could have continued over the next three months. Further, Dr. Jason noted that there are studies that show there is no proximate correspondence between the MMSE in the MoCA, noting that an MMSE score of 28 out of 30 most closely corresponds to a MoCA score of 24 or 25 (Jason Report, page 19). During questioning, Dr.

Jason agreed that it would be “possible” for someone to have cognitive capacity (to even score 30 on the MoCA, be capable of living independently, and be able to drive a car) and still be suffering from a delusion (Jason Transcript, page 44, lines 6-12; page 55, line 22 through to page 56, line 6). [ 98 ] Both experts agree that the MMSE is a poor instrument in evaluating capacity, the MoCA was a superior test to the MMSE and that neither the MMSE nor the MoCA measure executive function nor could they have detected any delusional beliefs held by Lorne. However, Dr.

Jason pointed out that as no concurrent capacity evaluation was carried out, the MMSE can still be helpful in monitoring cognitive decline. The fact that Lorne was able to present himself well on multiple visits with Dr. Friesen over a period of a number of years, dating back to October 2012, speaks against the likelihood that he had pervasive and severe neurobehavioral changes as a result of his strokes, even if it is not definitive evidence that he was cognitively normal (Jason Report, page 18). [ 99 ] Both experts agree that a person suffering from a delusion could live independently and could drive a car.

3. Issues A. What is the process in a

summary application for formal proof of a Will? B. Did the 2015 Will comply with the formalities? C. Did Lorne have the requisite capacity? D. Did Lorne suffer a delusion which prevented him from possessing the requisite capacity? 4. Law The process for formal proof of a Will [100] A personal representative or a person interested in the estate may apply to the court to obtain formal proof of a will pursuant to r75(1)(

a) of the Surrogate Rules (SR). Rule 64(1) of the SR provides that the court, on hearing an application, may, inter alia, receiveevidence by affidavit or orally; dispose of the issues arising out of the application as it considers appropriate; and direct a trial of issuesarising out of the application.

Pursuant to r 83(1) of the SR, the hearing in an application for formal proof of a will must be in the form ofa trial before the court and must not be held in chambers if, in the opinion of the court, several witnesses are necessary or if the courtorders a trial. [101] Rule 64(1) of the SR grants the Court a wide discretion to determine the appropriate procedure for formal proof of a will: Charles v Young, 2014 ABCA 200, para 7; Quaintance v Quaintance (Estate), 2006 ABCA 47, para 18.

The scheme under r 75(1)(a)of the SR is permissive and it is in the discretion of the court whether to order that the will should be formally proved at trial, or someother form of hearing: Mawhinney v Scobie, 2019 ABCA 76, para 36, leave to appeal denied (SCC). [102] The test for determining whether a trial is necessary to formally prove a will or whether an application can be determinedsummarily is whether there is a genuine issue for trial. A genuine issue requires an evidentiary foundation: Quaintance, para 19.Whether there is a genuine issue to be tried is not a high threshold.

This threshold is met if there is conflicting affidavit evidence on keyfacts such that the court must assess issues of credibility and reliability of witnesses to make findings of fact.

Inconsistencies in affidavitevidence, however, can sometimes be resolved on the existing record by applying the law such as that respecting onus of proof, therequirement for corroboration, or the general rule that unsworn evidence is to be given little weight: Mah v Zukas Estate, 2016 ABQB587, para 43, citing Goehring v Lightbrown, 2013 ABQB 709, para 44. [103] Rule 13.18(3) of the Alberta Rules of Court (AR) states that if an affidavit is used in support of an application that may disposeof all or part of a claim, the affidavit must be sworn on the basis of the personal knowledge of the person swearing the affidavit.(Pursuant to r 2 of the SR, the AR apply to an application to the court if the matter is not otherwise dealt with under the SR or the contextindicates otherwise.) However, a responding affidavit is entitled to include hearsay evidence.

The onus of establishing an entitlement to adecision that will finally determine the rights of the parties is on the person who is applying for such relief. The person who is opposingsuch relief can be given much more latitude in the quality of the evidence led on the motion. If the quality of the evidence is insufficient,because it is hearsay, that can be considered by the presiding judge: Murphy v Cahill, 2012 ABQB 793, para 25, 26 and 30. [104] In Sweetnam v Lesage, 2016 ONSC 4058, paras 768–773, aff’d 2017 ONCA 991, leave to appeal denied, (SCC), the court considered the admissibility of hearsay evidence.

A great deal of evidence of a hearsay nature was introduced by bothparties, particularly many statements made by the testator while he was alive. Both parties seemed to operate under a shared assumptionthat all evidence of a hearsay nature, particularly as it related to statements made by the testator, was admissible.

The court concludedthat the shared assumption by both parties was correct, noting that, fundamentally, the evidence is admissible as it relates to the state ofmind of the declarant, citing Sopinka, Lederman & Bryant, The Law of Evidence in Canada (3rd Ed., 2009), at page 330: "If the mentalstate of the declarant is directly in issue at trial, then statements of his or her mental state are generally admissible in proof of the fact";and at page 337: "[d]eclarations of intention or state of mind by testators stand on a special footing.

Courts have traditionally taken amore liberal stance in will cases and have admitted a testator's post-testamentary statement of memory or belief to establish antecedentfacts." The court went on to note that the authors of that text further stated at page 339: In addition to admitting pre- and post-testamentary declarations of state of mind as evidence of the contents of a will and to establishwhether the testator possessed an animus revocandi, courts have also admitted them to impeach the validity of a will on the ground offraud, duress, undue influence or lack of testamentary capacity. [105] The court then concluded that, since no one actually objected to hearsay evidence being admitted and considered, the courtwould proceed on the basis that the evidence is properly admissible.

The process in a

summary application [106] In Hryniak v Mauldin, 2014 SCC 7, the Supreme Court of Canada set the procedural framework of the modern law of

summaryjudgment. 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 amotion 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 justresult. In Weir-Jones Technical Services Incorporated v Purolator Courier Ltd, 2019 ABCA 49, para 21, the Court of Appeal clarifiedand elaborated on the three-part test as follows:

“...the record before the court and the issues must: (

a) Allow the judge to make the necessary findings of fact. An important thing to observe about this part of the test is that it assumesthe

summary judgment judge (or Master) is able to make findings of fact. The judge is entitled, where possible, to make those findingsfrom the record and draw the necessary inferences...

Summary judgment is not limited to cases where the facts are not in dispute. If thesummary judgment judge is not able to make the necessary findings of fact, that is an indication that there is a “genuine issue requiring atrial”… (

b) Allow the judge to apply the law to the facts. There are cases where the facts are not seriously in dispute, and the real question ishow the law applies to those facts. Those cases are ideally suited for

summary judgment… If the record allows the judge to make thenecessary findings of fact (as contemplated by the first part of the test), applying the law to those facts essentially comes down to aquestion of law… (

c) Assuming the first two parts of the test are met,

summary disposition must be a proportionate, more expeditious and lessexpensive means to achieve a just result. This third criterion is a final check, to ensure that the use of a

summary judgment procedure(rather than a trial) will not cause any procedural or substantive injustice to either party.

Summary judgment will almost always be “moreexpeditious and less expensive” than a trial. In the end, if the judge finds that

summary adjudication might be possible, but might not“achieve a just result” there is a discretion to send the matter to trial. This discretion, however, should not be used as a pretext to avoidresolving the dispute when possible. [107] These foundational criteria ...set the procedure for determining whether there is “no merit” or “no defence” to the claim ...”(para 21) [108] If the record allows the judge to make the necessary findings of fact and apply the law, then the

summary procedure should beused, unless there is a substantive reason to conclude that

summary disposition would not “achieve a just result.” Presuming thatsummary disposition will always be “unjust” unless it meets some high standard of irrefutability defeats the whole concept of the“culture shift” mandated by Hryniak; Weir-Jones, para 25. [109] A party faced with an application for

summary judgment must put its best foot forward, and present evidence on the record toshow sufficient merit to establish a genuine issue requiring a trial with respect to the outstanding issues: Canada (Attorney General) vLameman, 2008 SCC 14 at para 11; Stefanyk v Sobeys Capital Incorporated, 2018 ABCA 125 at para 12. A

summary judgment motioncannot be defeated by vague references to what may be adduced in the future, if the matter is allowed to proceed: Lameman at para 19.The mere assertion of a position or the mere hope or speculation that something will turn up at a trial, does not suffice: 776826 AlbertaLtd v Ostrowercha, 2015 ABCA 49 at para 11; Windsor v Canadian Pacific Railway Ltd, 2014 ABCA 108 at para 21. [110] In Hryniak, the Supreme Court determined that some conflict in affidavit evidence of opposing parties in an application forsummary judgment does not mandate setting the matter for trial in every situation.

The key is whether the necessary findings of fact canbe made on the record. The chambers judge may make inferences of fact based on the undisputed facts before the court, as long as theinferences are strongly supported by the facts: Guarantee Co of North America v Gordon Capital Corp, (SCC),[1999] 3 SCR 423 at para 30; Lameman at para 11. It may be that the conflicts do not arise on essential facts. It may be that analysisshows no factual conflict exists, but only a conflict of the litigants' separate opinions.

It may be that issues can be resolved on the basis ofthose portions of the affidavits which are not in dispute. It may be that one party relies on several affidavits containing internallyconflicting evidence, including some evidence which agrees with or supports the evidence led by the opposite party, amounting toadmissions against interest: Sandhu v Siri Guru Nanak Sikh Gurdwara of Alberta, 2015 ABCA 101 at paras 79-81, leave to appealdenied, [2015] SCCA No 184.

The key is whether it is essential to the determination of the issues in dispute that the court see thewitnesses in order to assess their credibility and reliability. [111] It is clear that the approach to

summary disposition of civil matters generally dictated by Hryniak and Weir-Jones can beapplied in estate cases in dealing with allegations of suspicious circumstances: Logan Estate (Re), 2019 ABQB 860; KraczkowskiEstate, 2017 ABQB 175. [112] A self-serving affidavit is not sufficient in itself to create a triable issue in the absence of detailed facts and supporting evidencein the record: Guarantee Co v Gordon Capital, (SCC), [1999] 3 SCR 423 at para 31. Self-serving opinion evidence isinadmissible and is properly ignored by the chambers judge on a

summary judgment application: Pyrrha Design Inc v Plum and PoseyInc, 2016 ABCA 12 at para 22. [113]

Section 11 of the Alberta Evidence Act, RSA 2000, c A-18, states that evidence in an action by or against the heirs, next of kin,executors, administrators or assigns of a deceased person, an opposed or interested party shall not obtain a verdict, judgment or decisionon that party’s own evidence in respect of any matter occurring before the death of the deceased person, unless the evidence iscorroborated by other material evidence. [114] In Mah v Zukas Estate, McCarthy J did not consider the alleged existence of a pre-existing will in determining whether therewas a genuine issue for trial as there was no corroborating evidence.

McCarthy J noted that inconsistencies in affidavit evidence could beresolved on the existing record (para 43). He also stated that the self-serving uncorroborated testimony of the Respondent cannot defeatthe Will: para 51.

A valid Will [115] Sections 14 and 15 of the Wills and Succession Act, SA 2010, c W-12.2, provides that a formal, valid will must be made inwriting, contain a signature of the testator that makes it apparent on the face of the document that the testator intended, by signing, togive effect to the writing in the document as the testator’s will, the testator makes or acknowledges his or her signature in the presence of2 witnesses who are both present at the same time, and each of the witnesses signs the will in the presence of the testator.

The shifting onus [116] The propounder of a will has the legal burden with respect to due execution, knowledge and approval, and testamentary capacityand the propounder is aided by a rebuttable presumption. On proof that the will was duly executed with the requisite formalities, afterhaving been read over to or by a testator who appeared to understand it, it will generally be presumed that the testator knew andapproved of the contents and had the necessary testamentary capacity: Vout v Hay, (SCC), [1995] 2 SCR 876 at paras26.

However, where suspicious circumstances are present, then the presumption is spent and the propounder of the will reassumes thelegal burden of proving knowledge and approval. In addition, if the suspicious circumstances relate to mental capacity, the propounder ofthe will reassumes the legal burden of establishing testamentary capacity. Both of these issues must be proved in accordance with thecivil standard.

Suspicious circumstances may be raised by (1) circumstances surrounding the preparation of the will (ie, beneficiaryinstrumental in its preparation or significant change from the former will), (2) circumstances tending to call into question the capacity ofthe testator (ie, physical and mental impairment), or (3) circumstances tending to show that the free will of the testator was overborne byacts of coercion or fraud: see Royal Trust Corp of Canada v Saunders, at para 28, [2006] OJ No 2291, 2006CarswellOnt 3478.

The evidentiary burden on those attacking the will can be satisfied by adducing or pointing to some evidence which,if accepted, would tend to negative knowledge and approval or testamentary capacity: Vout, at paras 25 27. [117] The Court of Appeal clarified in Mawhinney v Scobie, para 35, that a two-stage process to challenging the will is contemplatedin Vout. First, if the presumption of testamentary capacity is triggered, this puts an evidentiary onus on the challenger to raise thesuspicious circumstances to rebut the presumption.

If the challenger succeeds by establishing a genuine issue to be tried, and a trial isordered about the issue of testamentary capacity, then the onus shifts to the personal representatives to prove capacity. At each stage, theissue remains the same: did the testator have testamentary capacity? The difference is the evidentiary onus, the scope of the hearing, thenature of the evidence, the ability to determine credibility, and the nature of the relief granted. [118] The civil standard of proof on a balance of probabilities applies.

The extent of the proof required is proportionate to the gravityof the suspicion and the degree of suspicion varies with the circumstances of each case: MacGregor v Martin Estate,(SCC), [1965] SCR 757 at 766. Testamentary Capacity [119] The test for testamentary capacity was set long ago in Banks v Goodfellow,

(1870) LR 5 QB 549 at 565, 39 LJQB 237, [1861-73] All ER Rep 47 (Eng QB), as follows: …the possession of the intellectual and moral faculties common to our nature should be insisted on as an indispensable condition.

It isessential to the exercise of such a power that a testator shall understand the nature of the act and its effects: shall understand the extent ofthe property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with aview to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of hisnatural faculties - that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if themind had been sound, would not have been made.

Here, then, we have the measure of the degree of mental power which should beinsisted on.

If the human instincts and affections, or the moral sense, become perverted by mental disease, if insane suspicion or aversiontake the place of natural affection, if reason and judgment are lost, and the mind becomes a prey to insane delusions calculated tointerfere with and disturb its functions, and to lead to a testamentary disposition, due only to their baneful influence, in such a case it isobvious that the condition of testamentary power fails, and that a will made under such circumstances ought not to stand. [120] The test was restated in Re Schwartz, , 2 OR 61 (OntCA), aff'd (SCC), [1972] SCR 150, asfollows (at para 34): The testator must be sufficiently clear in his understanding and memory to know, on his own, and in a general way (1) the nature andextent of his property, (2) the persons who are the natural objects of his bounty and (3) the testamentary provisions he is making; and hemust, moreover, be capable of (4) appreciating these factors in relation to each other, and (5) forming an orderly desire as to thedisposition of his property. [121] Testamentary capacity is a legal construct, medical evidence is not required: Stevens v Morrisroe, 2001 ABCA 195 at paras 19and 20, leave to appeal denied, [2001] SCCA No 483; Mah v Zukas Estate, para 56.

Whether a testator has the requisite capacity tomake a will is a question of fact to be determined in all of the circumstances. The assessment is a highly individualized and fact-specificinquiry. In Lazio v Lawton, 2013 BCSC 305, the court stated at para 198: Testamentary capacity is not a medical concept or diagnosis; it is a legal construct. Accordingly, scientific or medical evidence - whileimportant and relevant - is neither essential nor conclusive in determining its presence or absence. Indeed, the evidence of lay witnessesoften figures prominently in the analysis.

Where both categories of evidence are adduced, it is open to the court to accord greater weightto the lay evidence than to the medical evidence, or reject the medical evidence altogether: Baker Estate v. Myhre (1995), (AB KB), 28 Alta. L.R. (3d) 428 at para. 39 (Q.B.); O'Neil v. Brown Estate, (SCC), [1946] S.C.R. 622 [O'Neil];Spence v. Price (1945), (ON CA), [1946] 2 D.L.R. 592 at 595-96 (Ont. C.A.); James [James v. Field, 2001 BCCA 267]at para. 77; Miliwat v. Gagné, 2009 BCSC 1447, aff'd 2010 BCCA 323 [Miliwat]. [122] Indeed, the evidence of lay witnesses can be preferred to the evid

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