Bannister v. Allen and Forbes –, 2014 NBQB 082

M/M/138/2013 IN THE COURT OF QUEEN’S BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF MONCTON Citation: Bannister v. Allen and Forbes – 2014 NBQB 082 Date : 2014 02 18 BETWEEN: RUBY BANNISTER Applicant - and - KEVIN ALLEN and BRIAN F. FORBES Respondents BEFORE: Justice William T. Grant HEARING HELD: Saint John DATE OF HEARING: February 18, 2014 DATE OF DECISION: February 18, 2014 COUNSEL: Edwin G. Ehrhardt, Q.C. for the Applicant James E. Fowler for the Respondents DECISION GRANT, J (Orally)

[ 1 ] The applicant in this matter, Ruby Bannister, has objected to the admissibility of certain portions of the affidavit filed by the respondent, Brian Forbes, in opposition to her application. At a hearing held on February 4, 2014, the court heard submissions from counsel on the admissibility of the impugned evidence and struck the last two lines and the final four words of the third last line of paragraph eight of Mr.

Forbes’ affidavit as well as the last line and a half of paragraph nine. [ 2 ] In addition the court ruled that paragraphs 18, 21 and 23 were admissible and reserved decision on paragraphs 22 and 24-31 until this time. [ 3 ] Paragraphs 22 and 24 read as follows: 22. That at the time of the execution of this Will currently before the Court dated July 16, 2009, Sheldon Bannister and I had conversation about his expectations, should he predecease his wife, about her financial management and her expectations from his estate. Mr.

Bannister told me that he felt, on his death, Ruby’s financial expectations would be unreasonable in that she had funds that she should use for her own needs prior to using his resources, and that furthermore, he thought that she would look to take funds from his estate for the benefit of her children from her first marriage in certain circumstances and he was not in favor of that.

He made it clear to me that he would want funds in his estate to be used for her purposes as Kevin Allen and I considered reasonable for her and went so far as to say that he thought we should expect she would at least be unhappy with any fetters we put on the discretion that she would like to exercise with the expenditure of his estate during her lifetime. His specific instruction to me accordingly was that I should not allow that to happen but to exercise prudence and restraint in providing sums to her after his death. 24. That these discussions went so far as for me to recommend in the circumstances that Mr.

Bannister not have Kevin Allen as a joint executor with me, due to the optics of he being largely the residual beneficiary, and at the same time, responsible for decisions being made about income being paid to Ruby Bannister could present difficulty and potentially acrimony and he was very firm in his instructions that he wished Kevin to be responsible for these matters, as he felt Kevin was the member of his family who best knew his attitude towards these matters and best knew his personal finances and his desire to keep such matters private and confidential. [ 4 ] These paragraphs raise the issue of whether or not extrinsic evidence is admissible to assist the Court in construing a will.

The respondents argue that the issue here is not what the testator’s intention was when he included clause 9(

a) in his will but rather whether or not they are administering the estate as he directed them. In my view, the submission draws a distinction without a difference because regardless of how the issue is framed it will be necessary for the Court, in disposing of this application, to ascertain the testator’s intention as expressed in that clause of his will. [ 5 ] The law is clear on the issue of what evidence is admissible in determining a testator’s intention.

It is set out in Schnurr on Estate Litigation , 2 nd Ed., 1994 Carswell at page 12-8 where the authors state: The general rule is that the court will admit indirect evidence of a testator’s intention but will not admit direct evidence of intent. [ 6 ] In the following paragraph they continue: Direct extrinsic evidence which is inadmissible would include instructions which the testator gave to his solicitors for the preparation of the will. [ 7 ] And in the following paragraph: …although direct evidence is never admissible, the indirect evidence of surrounding circumstances is admissible in certain situations. [ 8 ] The authors then go on to deal with two streams of authority concerning the admissibility of surrounding circumstances but those do not apply here.

[ 9 ] In Rondel v. Robinson Estate 2011 ONCA 493 , the testatrix had made a will in Spain in 2002 to deal with her European assets as well as a will in Canada to deal with her Canadian assets. She made a new will in 2005 in Canada in which she revoked all other wills but the solicitor did not ask her about other wills. In her residual clause, she disposed of all her property of every nature and kind and wheresoever situate.

The validity of the 2002 Spanish will came before the court as did the issue of whether evidence of her intention to revoke or maintain it was admissible. [ 10 ] In excluding that evidence, Justice Juriansz of the Ontario Court of Appeal stated: 26 This evidence goes beyond attempting to establish the facts and circumstances surrounding the testator’s 2006 Canadian Will. Rather, it purports to directly address what she intended to include in her Will but did not include.

The evidence is conclusory in nature… 27 The law properly regards the direct evidence of third parties about the testator’s intentions to be inadmissible. There would be much uncertainty and estate litigation if disappointed beneficiaries like Dr. Rondel could challenge a will based on their belief that the testator had different intentions than those manifested in the will. … 37 Third-party evidence of a testator’s intentions gives rise to both reliability and credibility issues.

Credibility is a concern because would-be beneficiaries can, without fear of contradiction by the deceased, exaggerate their relationship and fabricate the promises of requests. Reliability is a concern because testators are not obliged to write their wills to accord with the sincere or mendacious assurances they may have given to those close to them. Until they die, testators may freely revoke or vary the directions they have given for the distribution of their estates.

The evidence of third parties, who cannot directly discern the mind of the testator, is logically incapable of directly proving the testator’s intent. 38 In my view, there is no question about the good sense of the common law rule excluding direct extrinsic evidence of a testator’s intent. [ 11 ] Paragraphs 22 and 24 of Mr. Forbes’ affidavit are clearly direct extrinsic evidence and are therefore inadmissible. They are hereby struck from the record. [ 12 ] Paragraph 25 of Mr. Forbes’ affidavit reads as follows: 25.

That it was my understanding from conversations with Sheldon Bannister that on the death of Sheldon Bannister that the $25,000.00 life insurance policy was to be paid to Ruby Bannister to pay for his funeral and hers as well and that I now understand from Ruby Bannister that she has used the $25,000.00 otherwise than to pay for his funeral and she has not prepaid her own funeral.

Furthermore, I know it to be the fact that the estate has paid the cost of Sheldon’s funeral, over and above the payment of the $25,000.00 insurance proceeds to her. [ 13 ] The $25,000 life insurance proceeds were not part of the estate but the fact that Mrs. Bannister received that money could be relevant to the issue of whether or not she is being maintained in the lifestyle to which she was accustomed. However, I order the paragraph, as it is written, be struck because it is based on Mr.

Forbes’ conversation with the testator and is therefore direct extrinsic evidence and inadmissible as such. [ 14 ] Paragraph 26 of Mr. Forbes’ affidavit reads: 26. That I know the bank account in excess of $17,000.00 that was paid to Ruby Bannister on Sheldon’s death by the Bank of Nova Scotia on the principle of survivorship was, in fact, funds that had been generated by Sheldon Bannister and had always been his funds alone and to which she had no access or use of until approximately a year and a half before his death and I believe

consequently that there is a very strong argument that those funds are not marital property or hers by succession, but nevertheless, the executors chose to allow her to have those funds as we chose to do with the insurance proceeds rather than impose any undue or unreasonable hardship on Ruby Bannister.

Those two funds represent in excess of 20% of the net value of Sheldon Bannister’s estate at the time of his death and she received them without any obligation from the estate, despite valid reason that we could have challenged her on either one or both of them and chose not to, for her benefit. [ 15 ] That paragraph is clearly argument and largely irrelevant with the possible exception of the first line and a half down to the words “Bank of Nova Scotia” which I will allow. The remainder of paragraph 26 is struck. [ 16 ] Paragraphs 27 to 31 read as follows: 27.

That at the time Sheldon and Ruby Bannister were preparing to marry in the fall of 1993, I was requested by Sheldon Bannister to prepare a Domestic Contract, a copy of which is annexed hereto as Exhibit “A” to this my affidavit. 28. That as it was a second marriage for each of these parties and they had certain assets they wished to protect for themselves and their heirs under their Wills on their death, the document was prepared and Ruby Bannister had independent legal advice at that time from barrister and solicitor John Murray in the preparation and execution of the document. 29.

That subsequent to their marriage and at a time they were considering making revisions to their Will, an amendment to the Domestic Contract was prepared and executed in December of 2006, a copy of which is annexed here to as Exhibit “B” to this my affidavit. 30. That at that time, Ruby Bannister had independent legal advice from her solicitor, John Murray, on the preparation and execution of this document. 31.

That I wish to confirm to the Court the contents of paragraph 5 of the amendment to the Domestic Contract dated the 11 th day of February, 2006 in which Ruby Bannister confirms that she wishes to receive 100% of the income from his estate after his death under the terms of this document and that to the best of my knowledge and belief, Ruby Bannister is currently receiving considerably more than 100% of the income from Sheldon Bannister’s estate, receiving in excess of three times the income from his estate from the Guaranteed Investment Certificates invested on behalf of the estate, and in fact, the reason she is receiving more than the income is because the executors choose to encroach on the capital of his estate in their discretion in her personal interest and to the detriment of the residual beneficiaries of the Sheldon Bannister estate. [ 17 ] The applicant submits that those paragraphs are irrelevant as they refer to documents that pre-date the will, are not referenced in the will and would be superseded by the will. [ 18 ] The respondents submit the information set out in those paragraphs is factual and within Mr.

Forbes’ personal knowledge and that it is relevant to the issue of Ms. Bannister’s reasonable expectations of her lifestyle. [ 19 ] In my view, there is potentially some relevance to those paragraphs but there remains an issue as to how much weight will be given to them. I therefore find that they are admissible. ___________________________________________ William T. Grant Judge of the Court of Queen’s Bench of New Brunswick