2003 ABQB 286, 2003 ABQB 286

Re Tchir (Estate), 2003 ABQB 286 Date: 200303 26 Action No. 110715 IN THE COURT OF QUEEN'S BENCH OF ALBERTA JUDICIAL DISTRICT OF EDMONTON COURT FILE NUMBER 110715 COURT Court of Queen’s Bench of Alberta (Surrogate Matter) JUDICIAL DISTRICT Edmonton ESTATE NAME Anna Mariana Tchir, also known as Anna Maria Tchir APPLICANT (PLAINTIFF) Maria Anna Tchir RESPONDENT (DEFENDANT) Danuta Muszak _______________________________________________________ MEMORANDUM OF RULING of the HONOURABLE MR. JUSTICE W. J. GIRGULIS _______________________________________________________ APPEARANCES: Mr. Michael L.

Furman for the Applicant (Plaintiff), Maria Anna Tchir Mr. Ihor Broda for the Respondent (Defendant), Danuta Muszak

[ 1 ] This is an application for a Consent Order directing that the deceased’s Will and Codicil dated respectively the 27 th of September, 1989 and the 4 th of June, 1998 (hereinafter collectively called the first Will) be submitted for a Grant of Probate and that the Will apparently signed by the said deceased dated the 9 th of August, 1999 (hereinafter called the second Will) be declared void and therefore not be submitted for Grant of Probate. [ 2 ] An Order carrying this intent out has been consented to by counsel on behalf of each of the Executrixes named in both Wills. [ 3 ] With respect to the steps taken in this matter, C.

P. Clarke, J. made an Order on the 20 th of March, 2000, with consent of the two Executrixes’ solicitors, directing the trial of a number of issues:

a) Did the deceased have testamentary capacity on August 9 th , 1999 [the date of the second Will];

b) Was the deceased unduly influenced by the Plaintiff;

c) Whether the Defendant should be responsible to pay rent in relation to her occupation of residential property owned by the deceased, and if so, what is the appropriate amount and from what date should it be made payable;

d) Whether the Will of August 9 th , 1999 is void for uncertainty. The Plaintiff was directed to be the Executrix named in the second Will, Maria Anna Tchir and the Executrix named in the first Will, Danuta Muszak, was to be named as Defendant.

This Order directing a trial of the issues resulted from the Plaintiff submitting the second Will for Probate which was not proceeded with because of the filing of a caveat on behalf of the Defendant as Executrix under the first Will. [ 4 ] Various Affidavits were filed which included exhibits which supported the lack of testamentary capacity of the deceased at the time of the making of the second Will.

In addition certain statements were made in Affidavits by the Plaintiff with respect to the issues raised and also with respect to negotiations for settlement, which was finally achieved. [ 5 ] The Consent Order if granted will dispose of all of the issues between the parties as the Executrix named in the first Will is entitled to apply for a Grant of Probate and since the second Will is declared void, the requirements of the Executrix named in the second Will to proceed to prove that Will in solemn form, as directed by the Order of Clarke, J., will no longer be necessary.

The proceedings will be at an end. [ 6 ] The deceased died on the 3 rd of October, 1999, less than two months after apparently executing the second Will. In the number of Affidavits filed, reference is made to the opinion letter of the treating physician of the deceased, Dr.

Szymanski and it is clear from reading these exhibits dated the 26 th of July, 1999 and the 23 rd of November, 1998, that there were serious concerns about the mental facilities and capabilities of the deceased with respect to the making of the second Will. [ 7 ] I am satisfied on the material filed that there is strong evidence which is capable of challenging the deceased’s mental capability of making the second Will.

Furthermore, the wording of the second Will, obviously not drawn by a lawyer, is so broadly drawn that it is difficult to say that there is sufficient certainty as to what the instructions are as to the trust imposed upon the Plaintiff and it is doubtful whether such could be enforceable. The Affidavits of the Plaintiff filed herein clearly expresses the reasons for her concerns about the viability of her case, on all grounds.

[ 8 ] The estate is a small one and would obviously be eaten up in litigation. I am of the view that the Consent Order is a proper and reasonable method of disposing of the issues and accordingly I am prepared to sign it. [ 9 ] I will now proceed with the matter of considering the Application for Grant of Probate submitted by the Executrix, Danuta Muszak. DATED at Edmonton, Alberta this 26 th day of March, 2003. __________________________ J.C.Q.B.A.