Gordon Estate (Re), 2023 ABKB 132

Court of King’s Bench of Alberta Citation: Gordon Estate (Re), 2023 ABKB 132 Date: 20230502 Docket: ES01 127764 Registry: Calgary Court File Number ES01 127764 Court Court of King’s Bench of Alberta (Surrogate Matter) Judicial Centre Calgary Estate Name William Anthony Gordon Applicant Kenneth Thomas Gordon Respondents Personal Representative Beneficiaries (Residuary) Beneficiaries (Non-Residuary) Beneficiaries (Intestacy) Amanda Shirley Gordon Janet Lynn Cote Amanda Shirley Gordon Amanda Shirley Gordon Amanda Shirley Gordon Kenneth Thomas Gordon Janet Lynn Cote Kenneth Thomas Gordon Corrected judgment: A corrigendum was issued on May 2, 2023; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Decision

of the Honourable Justice R.W. Armstrong _______________________________________________________ Introduction [ 1 ] William Anthony Gordon (the “Deceased”) died leaving behind two children and three grandchildren. His children are Kenneth Thomas Gordon, the Applicant in this matter, and Janet Lynn Cote, the Respondent. All three grandchildren are the children of Ken Gordon. The Deceased had no spouse or adult interdependent partner when he died. [ 2 ] Shortly before he died, the Deceased prepared a will with the assistance of a lawyer.

One of the grandchildren, Amanda Shirley Gordon, was named as the Personal Representative of the Deceased’s estate. The will left a specified monetary gift to Ken Gordon and designated Amanda Gordon as the residual beneficiary. There was no provision in the will for Janet Cote or for Ken Gordon’s other two children. [ 3 ] Janet Cote contests the validity of the will. She asserts that the Deceased lacked testamentary capacity at the time his will was prepared and executed and that the will was a result of undue influence exerted over the Deceased by Amanda Gordon. Ken Gordon seeks

summary judgment, dismissing the application challenging the will. Issue [ 4 ] The Respondent, Janet Cote, has raised two issues with respect to the validity of the Deceased’s will: 1) Did the Deceased have testamentary capacity when he executed his will; and 2) Was the Deceased subject to undue influence when he made his will? [ 5 ] The Applicant argues that these issues can be fairly and justly resolved by way of

summary judgment. The Respondent argues that there are credibility and evidentiary issues that cannot be resolved on a

summary basis and that a just and fair determination of the issues can only be reached by way of a full trial.

Summary Judgment [ 6 ] Rules 7.2 and 7.3 of the Alberta Rules of Court govern the availability of

summary judgment: 7.2 On application, the Court may at any time in an action give judgment or an order to which an applicant is entitled when (

a) admissions of fact are made in a pleading or otherwise, or (

b) the only evidence consists of records and an affidavit is sufficient to prove the authenticity of the records in which the evidence is contained. 7.3(1) A party may apply to the Court for

summary judgment in respect of all or part of a claim on one or more of the following grounds: (

a) there is no defence to a claim or part of it; (

b) there is no merit to a claim or part of it; (

c) the only real issue is the amount to be awarded.

(2) The application must be supported by an affidavit swearing positively that one or more of the grounds described in subrule (1) have been met or by other evidence to the effect that the grounds have been met.

(3) If the application is successful the Court may, with respect to all or part of a claim, and whether or not the claim is for a single and undivided debt, do one or more of the following: (

a) dismiss one or more claims in the action or give judgment for or in respect of all or part of the claim or for a lesser amount; (

b) if the only real issue to be tried is the amount of the award, determine the amount or refer the amount for determination by a referee; (

c) if judgment is given for part of a claim, refer the balance of the claim to trial or for determination by a referee, as the circumstances require. [ 7 ] The importance of the

summary judgment rules was described by the Court of Appeal of Alberta in Weir-Jones Technical Services Incorporated v Purolator Courier Ltd , 2019 ABCA 49 at para 20 : Since Hryniak v Mauldin [2014 SCC 7 , [2014] 1 SCR 87] the presumption that most disputes could or should “go to trial” is seen as

being unrealistic. The parties’ resources often do not allow a trial on every issue. Indeed, our civil justice system would be deficient if it could not resolve most claims without a trial. Trials are too expensive for many litigants, and disproportionate for many disputes. Seeing a trial as the default procedure is therefore not realistic; the expense of trial may cause some plaintiffs to “simply give up on justice”: Hryniak v. Mauldin at para. 25 . We have to strive for a “fair and just process” recognizing that “alternative models of adjudication are no less legitimate than the conventional trial”: Hryniak v.

Mauldin at para. 27 . [ 8 ] While the expense of a full trial is, in many cases, disproportionate to the magnitude of the dispute, cost is not the only factor underpinning the importance of

summary judgment processes. Avoiding the delay associated with a full trial is also a key advantage of a

summary judgment application: See Hannam v Medicine Hat School District No. 76 , 2020 ABCA 343 at para 46 . Aside from the financial costs associated with delay, there is also an emotional cost that may be mitigated if a claim can be resolved expeditiously without the need for a full adversarial trial. This may be especially relevant in estate cases or other types of family disputes. [ 9 ] The Court of Appeal of Alberta set out the applicable consideration for a

summary judgment application in Weir-Jones at para 47: The proper approach to

summary dispositions, based on the Hryniak v Mauldin test, should follow the core principles relating to

summary dispositions, the standard of proof, the record, and fairness. The test must be predictable, consistent, and fair to both parties. The procedure and the outcome must be just, appropriate, and reasonable. The key considerations are:

a) Having regard to the state of the record and the issues, is it possible to fairly resolve the dispute on a

summary basis, or do uncertainties in the facts, the record or the law reveal a genuine issue requiring a trial?

b) Has the moving party met the burden on it to show that there is either “no merit” or “no defence” and that there is no genuine issue requiring a trial? At a threshold level the facts of the case must be proven on a balance of probabilities, or the application will fail, but mere establishment of the facts to that standard is not a proxy for

summary adjudication.

c) If the moving party has met its burden, the resisting party must put its best foot forward and demonstrate from the record that there is a genuine issue requiring a trial. This can occur by challenging the moving party’s case, by identifying a positive defence, by showing that a fair and just

summary disposition is not realistic, or by otherwise demonstrating that there is a genuine issue requiring a trial. If there is a genuine issue requiring a trial,

summary disposition is not available.

d) In any event, the presiding judge must be left with sufficient confidence in the state of the record such that he or she is prepared to exercise the judicial discretion to summarily resolve the dispute. [ 10 ] The record before me in this

summary judgment application is comprehensive. It includes affidavits from Ken Gordon, Janet Cote, and Amanda Gordon. There is also an affidavit from the lawyer, Ruth Olson, who assisted in the preparation and execution of the will. Janet Cote, Ken Gordon, Amanda Gordon, and Ruth Olson were all questioned on their affidavits prior to the

summary judgment application. In addition, the lawyer’s entire file relating to the Deceased’s will has been produced as have the Deceased’s medical records for the relevant period. It is difficult to imagine what additional relevant and material information or evidence could be adduced at a trial. [ 11 ] Janet Cote argues that a trial will allow her to adduce expert evidence regarding the Deceased’s capacity. Specifically, she refers to evidence from clinical neuropsychologist Dr. Arlin Pachet. Janet Cote attempted to file an expert report by Dr.

Pachet in these proceedings; however, the report was struck prior to this application being heard. The Court of Appeal of Alberta upheld the decision striking the report. [ 12 ] Considering the state of the record in this application and whether it is sufficient to permit me to fairly resolve the dispute between the parties, it is not clear how a report from Dr. Pachet could assist in determining the issues of capacity or undue influence. Dr. Pachet did not conduct any testing or perform any evaluations on the Deceased. He never met the Deceased.

His evaluation of the Deceased is retrospective in nature only, meaning that it is based on a review of the Deceased’s medical records. The value of a retrospective review of this kind is questionable. Dr. Pachet himself has expressed the limitations of retrospective assessments as the court pointed out in Burby v Ball , 2017 ABQB 300 at para 165 (aff’d 2018 ABCA 22 ): Dr. Pachet agreed on cross-examination that even if an individual has conditions such as Alzheimer’s or dementia they may still have decisional capacity at a particular time.

He also agreed that a retrospective assessment is unable to definitively state whether a person had decisional capacity at a certain time. [ 13 ] There are cases where Dr. Pachet’s evidence is accepted and where it forms part of the overall assessment of capacity conducted by the court, including in the recent case of James v Belanger , 2023 ABKB 34 referred to by Janet Cote after argument in this matter was heard. The fact that Dr. Pachet’s evidence may be accepted in some cases does not mean it is necessary for the determination of this case. All the information that Dr.

Pachet would have had available to him is available to the court in this application and it is for the court to draw its own conclusion as to the issue of capacity. Dr. Pachet’s report is not necessary for the court to make a fair decision. The retrospective assessment that he could provide, given the limitations of such evidence, most certainly does not justify a full trial. [ 14 ] In any event, capacity is not a medical diagnosis. It is a legal construct: Stevens v Morrisroe , 2001 ABCA 195 at paras 19 and 20 (leave to appeal denied [2001] SCCA No 483).

Whether or not an individual had testamentary capacity is a finding of fact that the court must make based on the available evidence. [ 15 ] I am therefore satisfied that the record available in this

summary judgment application is adequate to enable a fair and just determination of the issues. It is sufficient to allow for the necessary findings of fact and application of the law required to determine this matter summarily. The Formal Execution of the Will

[16] Where a will meets the formal requirements for validity and has been read by or to a testator who appears to understand it, apresumption of testamentary capacity arises: Vout v Hay, (SCC), [1995] 2 SCR 876 at para 26. The proponent of thewill bears the burden to establish the formal requirements for validity have been met on a balance of probabilities. [17] The formal requirements for validity are set out in the Wills and Succession Act, SA 2010, c W-12.2, ss 14-15.

A will that is inwriting, that is signed by the testator in such a way that makes it apparent on the face of the document that the testator intended to giveeffect to the will, and that is signed in the presence of two witnesses who are both present at the same time and who both sign the will inthe presence of the testator, will be valid. [18] The Deceased’s will is in writing and it is signed by him and two witnesses, Ruth Olson and Garth Goertz.

One of thosewitnesses, Ruth Olson, swore an affidavit of witness to a will that confirmed “The deceased, myself and the other witness to the Will,were all present together when the witnesses and the deceased signed the Will.” Furthermore, where the witnesses signed the will it says:“Signed by the Testator William Anthony Gordon, in our presence and attested by us in the Testator’s presence and in the presence ofeach other.” Given the sworn evidence of Ms.

Olson and the statement on the will as to the signatories, I accept that the will was signedby the Deceased in the presence of two witnesses who also signed the will in the presence of the Deceased. [19] It is apparent on the face of the document that when the testator signed the will, he intended to give effect to the will. Itclearly states it is his last will and testament, it appoints a Personal Representative to carry out the wishes expressed in the will, and itdivests all the Deceased’s property to his Personal Representative to distribute in accordance with the instructions in the will. [20] Ms.

Olson also gave the following evidence regarding the Deceased’s understanding when he signed the will: “Whenreviewing the contents of William’s Will, I asked William to read through the Will and confirm that the Will reflected his true intentions.William confirmed to me that the Will was correct and reflected his true intentions. I verily believe it to be true that William understoodthe contents and effects of his Will.” The evidence of Ms.

Olson, coupled with the plain words of the Deceased’s will and the formalexecution of that will in the presence of two witnesses satisfies me that the formal requirements for validity have been established on abalance of probabilities. Presumption of Testamentary Capacity and SuspiciousCircumstances [21] Having found that the Deceased’s will meets the formal requirements for validity, a presumption of testamentary capacityarises. So long as the presumption persists, the burden of proof shifts to Janet Cote.

As the party challenging the validity of the will, it isup to her to prove on a balance of probabilities that the Deceased lacked testamentary capacity, was subjected to undue influence or thatthe will is otherwise invalid. [22] However, the presumption of testamentary capacity may be rebutted where suspicious circumstances are present.

In Vout, atparas 25-27, the Supreme Court of Canada reviewed the interplay of the presumption of testamentary capacity and suspiciouscircumstances: The suspicious circumstances may be raised by (1) circumstances surrounding the preparation of the will, (2) circumstances tending tocall into question the capacity of the testator, or (3) circumstances tending to show that the free will of the testator was overborn by actsof coercion or fraud. … Suspicious circumstances in any of the three categories to which I refer above will affect the burden of proof with respect to knowledgeand approval.

The burden with respect to testamentary capacity will be affected as well if the circumstances reflect on the mentalcapacity of the testator to make a will. Although the propounder of the will has the legal burden with respect to due execution, knowledgeand approval, and testamentary capacity, the propounder is aided by a rebuttable presumption.

Upon proof that the will was dulyexecuted with the requisite formalities, after having been read over to or by a testator who appeared to understand it, it will generally bepresumed that the testator knew and approved of the contents and had the necessary testamentary capacity. Where suspicious circumstances are present, then the presumption is spent and the propounder of the will reassumes the legal burden ofproving knowledge and approval. In addition, if the suspicious circumstances relate to mental capacity, the propounder of the willreassumes the legal burden of establishing testamentary capacity.

Both of these issues must be proved in accordance with the civilstandard. There is nothing mysterious about the role of suspicious circumstances in this respect. The presumption simply casts anevidentiary burden on those attacking the will. [23] Janet Cote asserts that there are suspicious circumstances in all three categories identified in Vout. With respect to thecircumstances surrounding the preparation of the will, she points to the involvement of the main beneficiary, Amanda Gordon, in thepreparation of the will.

She also argues that the medical records call into question the testamentary capacity of the Deceased and finally,she argues that the circumstances under which Ken Gordon became a beneficiary under the will demonstrates that the testator wassubject to undue influence at the hand of Amanda Gordon. [24] I am satisfied that the medical issues the Deceased was facing at the time the will was executed raise the prospect ofsuspicious circumstances. Given the deteriorating physical and mental condition of the Deceased in and around the time the will wassigned, a presumption of validity cannot stand.

It is necessary for the proponent of the will to establish the validity of the will on abalance of probabilities. [25] Suspicious circumstances do not, however, in and of themselves equate with a finding that there was a lack of testamentarycapacity or that undue influence was exercised over the Deceased. At this stage of the analysis, the existence of suspicious circumstancessimply means the presumption of validity has been rebutted and the burden to prove that the Deceased had testamentary capacity and wasnot unduly influenced rests once again with the proponent of the will, Ken Gordon.

Testamentary Capacity [26] The classic statement of testamentary capacity is from Banks v Goodfellow,

(1870) LR 5 QB 549 at 565, [1861-73] All ERRep 47 (Eng QB): It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects: shall understand theextent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect;and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent theexercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal ofit which, if the mind had been sound, would not have been made. [27] As more recently articulated, a testator must possess clarity with respect to (1) the nature and extent of his property; (2) thepersons who are the natural objects of his bounty; and (3) the testamentary provisions he is making.

The testator must appreciate thesefactors in relation to each other in forming “... an orderly desire as to the disposition of his property”: Re Schwartz, (ONCA), [1970] 2 OR 61, 10 DLR(3d) 15 (ON CA). [28] The Deceased’s medical records are detailed and comprehensive for the period leading up to and immediately following theexecution of his will on January 25, 2019.

The Deceased was suffering from advanced cancer, was in significant pain that was beingmanaged by medication and he was contemplating Medical Assistance in Dying (MAID). [29] The Outpatient Consult Report dated January 11, 2019 documents a minor surgical procedure to remove a recurrent squamouscarcinoma from the Deceased’s right temple. The Consult Report identifies issues of ongoing back pain and poor oral intake and relateddehydration. The writer of the Consult Report concludes that the Deceased would likely require an ongoing placement due to himappearing unable to care for himself.

The issues identified relate to the Deceased’s back pain and his poor eating and drinking. There isno mention of confusion, dementia, or other cognitive issues. [30] The Physician’s Progress Notes indicate the Deceased was confused on January 13, 2019, but the next day the Progress Notesdocument a conversation with the Deceased regarding placement in a seniors’ residence.

The note states: “he might be receptive toseniors living but when mentioned he will have to pay, he said ‘I will go home then.” The conversation demonstrates his awareness ofhis situation and a reaction consistent with his longstanding reputation of being strong willed, intensely private, and very independent. [31] On January 15, 2019, the Physician’s Progress Notes indicate that the Deceased’s cognition is fluctuating with mention ofdelirium. [32] The January 16, 2019 Physician’s Progress Notes document a coherent conversation with the Deceased about the optionsavailable to him, including MAID.

The Notes state “...I do not think that he is delirious but possibly depressed.” [33] On January 17, 2019, the Deceased was noted to be depressed, with possible altered mental status noted. He was described aswithdrawn and confused but was noted to have insights into his deficits. [34] On January 18, 2019, the Physician’s Progress Notes document an attempt to assess the Deceased for depression. The assessorwas instructed by the Deceased to go away and not come back. The Progress Note concludes that the Deceased was not actively deliriousat that time.

Further notes from January 19, 2019 indicate that the nurses have consistently documented the Deceased as CAM(Confusion Assessment Method) negative. As at that date, the assessor concludes: “Overall the best I can say is I don’t think he isdelirious.” [35] On January 21, 2019, the Physician Progress Notes document further discussions with the Deceased regarding MAID. Thewriter queries whether the Deceased would qualify for MAID given his underlying depression. There is no concern documentedregarding his capacity, dementia, or delirium in relation to his ability to consent to MAID.

After refusing to speak to anyone from thepsychiatry department for several days, the Deceased did agree to speak to someone so that he could be assessed for MAID. [36] On January 22, 2019, the Deceased was expressing that he was tired and that he wanted his life to end. He indicated he justwanted to be comfortable, and he requested MAID again.

The notes indicate that the Deceased was very clear and consistent in hiswishes for his life to end. [37] By January 23, 2019, Amanda Gordon was working on finding a lawyer to complete a will for the Deceased as part of theplan to engage MAID. [38] On January 24, 2019, there is a report from the spiritual care provider at the hospital who was providing support for theDeceased and Amanda Gordon as they discussed end of life affairs.

The report documents “The patient feels happy that things are goingin the right direction now and are progressing.” [39] The January 25, 2019 entry in the Physician Progress Notes indicates that Amanda Gordon continues to work on the MAIDapplication and that the Deceased is detached and disinterested in conversation. He advised the assessor that he “feels the same.” Thewill was executed on this date. [40] The next entry in the Physician Progress Notes is January 26, 2019, the day after the will was signed.

The note refers topossible depression but states that the Deceased is “currently not delirious” but is at high risk. A later entry on that same day indicatesthat the Deceased’s issues were stable. [41] The January 27, 2019 Physician Progress Notes do not identify any new issues. The Deceased continued to express his desireto die, and Amanda Gordon continued to work on the MAID application.

[ 42 ] The Physician Progress Notes for January 28 and 29, 2019 indicate that the Deceased was waiting for a psychiatric evaluation and for the MAID team to reach out as the paperwork for MAID had been completed. [ 43 ] The psychiatric consult occurred on January 30, 2019. The report from the psychiatric evaluation in the Physician Progress Notes indicates that the patient was not able to meaningfully participate in the assessment and as such he was not likely a candidate for MAID.

The Multidisciplinary Progress Report for January 31, 2019 indicates that the Deceased was deemed by psychiatry to lack capacity. [ 44 ] Janet Cote relies heavily on the finding that the Deceased lacked capacity on January 31, 2019 to support her argument that the Deceased did not have testamentary capacity on January 25, 2019. However, the relevant date for the inquiry into the Deceased’s capacity is the date the will was executed and not a date nearly a week later. The medical evidence, the evidence of Ms.

Olson and the evidence of Amanda Gordon all support a finding of the Deceased having capacity on January 25, 2019. [ 45 ] The best evidence of the Deceased’s capacity are the medical records. While the records show the Deceased’s care team had queried whether the Deceased was delusional earlier in January, by January 18, 2019, the medical records clearly show that the Deceased had been assessed as possibly depressed but not delusional. Between January 16 and January 25, 2019, the Deceased continued to pursue MAID with the support of Amanda Gordon and the spiritual care team at the hospital.

Preparations for MAID included the Deceased completing his will. At no time before the will was executed did the MAID application have to be suspended or discontinued based on the Deceased’s lack of capacity. The first time that the Deceased was assessed as lacking capacity was January 31, 2019. [ 46 ] Additional evidence regarding the Deceased’s capacity was provided by Ms. Olson, the lawyer responsible for the preparation of the Deceased’s will. Ms. Olson met with the Deceased in person on January 25, 2019. Janet Cote is critical of Ms. Olson’s evidence, arguing that Ms.

Olson did not conduct any significant systematic cognitive assessment or seek or receive any professional medical advice regarding mental competency. Ms. Olson was not a member of the medical team responsible for assessing and diagnosing the Deceased. It was not her role to conduct a significant and systematic cognitive assessment of the Deceased and there is no evidence that she was even qualified to do so. Ms.

Olson is an estates lawyer; however, her observations as a layperson, independent of the medical information, are relevant and material to the question of whether the Deceased had capacity when he executed the will. [ 47 ] In her affidavit sworn on November 27, 2020, Ms. Olson states: “At no time during my meeting with William [the Deceased] for the signing of his Will, did I notice any signs of incompetence on the part of William. William was clear in giving his instruction.

William was aware that the Applicant, Janet Lynn Cote, was not going to be receiving anything under his Will and this is what he wanted.” Later in her affidavit she states: “I was at all times satisfied that William was competent to execute the Will and to provide full instructions to bequest his entire estate to Kenneth Thomas Gordon and Amanda Shirley Gordon.” [ 48 ] I accept Ms. Olson’s evidence regarding her observations of the Deceased. First and most importantly, her evidence is consistent with the medical records that do not indicate any lack of capacity or delusional behaviour on January 25, 2019.

Second, Ms. Olson was uniquely situated to observe the Deceased. She met with him alone and then in the presence of the other witness who was a social worker at the hospital. As an estates lawyer, she would have been aware of her obligation to satisfy herself of the Deceased’s capacity when the will was executed. She observed no signs of incompetence and proceeded to have the will executed by the Deceased.

There is simply no reason for her to have gone ahead and had the will executed if she had concerns regarding the Deceased’s capacity. [ 49 ] The evidence confirms that the Deceased was able to identify his assets for distribution in his will. Ms. Olson’s legal assistant sent Amanda Gordon a list of questions for the Deceased to answer to aid in the preparation of the will.

When Amanda Gordon responded, she advised that the Deceased told her that he had accounts with Canadian Western Bank with a balance of approximately $500,000, he had a house, and he was the beneficiary of two pensions: one from Syncrude and the other from the air force. The estate inventory indicates that the Deceased did in fact have cash assets totalling just over $422,000, the vast majority of which were held at the Canadian Western Bank. The remaining funds were in accounts with the CIBC.

Based on the information he provided to Amanda Gordon, I am satisfied that the Deceased was well aware of the nature and extent of the property available for him to distribute in his will. [ 50 ] In terms of the persons who are the natural objects of his bounty, the uncontradicted evidence is that the only relative the Deceased was close to his granddaughter, Amanda Gordon. She lived in the same city as him, would visit him regularly and when he was ill, she was the one who visited with him and helped him when he needed help. [ 51 ] Janet Cote, on the other hand, had very limited contact with her father.

She lived outside of Ottawa while the Deceased lived in Calgary. Janet Cote travelled to Calgary to see her father at his home a total of eight times over twenty-seven years. The Deceased did not travel to see Janet Cote in Ontario at all since 2000. They did not see each other at all for the ten-year period between June 2000 and February 2010. In the fall of 2018, she did travel to Calgary three times to visit the Deceased while he was in hospital.

Given the very sporadic nature of the contact between Janet Cote and her father, there is nothing suspicious or concerning about Janet Cote’s exclusion from the Deceased’s will. [ 52 ] Janet Cote herself was aware that she was an unlikely beneficiary in her father’s will. During questioning on her affidavit, she testified that she never had expectations about her father’s will. In November 2018, Janet Cote and Ken Gordon discussed the Deceased’s estate. Janet Cote expressed her view that the Deceased may give his money to a worthy cause or to her cousin David, of whom the Deceased was very fond.

She also told Ken Gordon that she had previously told their father to leave all his money to the kids. [ 53 ] This is not a case where Janet Cote had always expected to benefit in the will and then there was some sudden and unexplained reversal of the Deceased’s intentions. Even at the time of the reading of the will, upon learning that she received nothing, Janet Cote said it was what she expected. I am satisfied, based on the evidence, that Janet Cote never expected to benefit under her father’s will.

Given their relationship, or lack thereof, she was simply not a natural object of his bounty and her exclusion from the will in no way suggests a lack of capacity on the part of the Deceased when he executed the will. [ 54 ] I am equally satisfied that the Deceased was aware of the testamentary provisions he was making. He appointed Amanda Gordon as his Personal Representative. She was his closest relative and the one who had assisted him throughout his illness. It was a

logical choice. [ 55 ] The distribution of the Deceased’s estate was not complex. The will contained essentially two gifts: the sum of $400,000 to his son, Ken Gordon and the residue of his estate, including his house, to Amanda Gordon. If Amanda Gordon was to predecease the Deceased, her share of the estate was to go to the Deceased’s other two grandchildren. When Ms. Olson met with the Deceased to go over the will, she asked him to read the will and confirm that it was correct and reflected his intentions.

He confirmed that the will expressed his true intentions and specifically acknowledged not wanting to leave any gift to his daughter, Janet Cote. [ 56 ] Based on the foregoing, I am satisfied that the Deceased understood the nature and extent of the property at his disposal, he considered the natural objects of his bounty, being his children and grandchildren and made considered and not unexpected decisions regarding the testamentary provisions. I therefore find, on a balance of probabilities, that the Deceased had testamentary capacity when he executed his will.

Preparation of the Will and Undue Influence [ 57 ] Janet Cote’s position is that Amanda Gordon exercised undue influence over the deceased. She points to the fact that Amanda was assisting the Deceased with decision making towards the end of his life and the fact that Amanda Gordon was a primary beneficiary under the will as evidence of the undue influence.

She also points to the fact that Amanda Gordon had a discussion with the Deceased about including Ken Gordon as a beneficiary in the will as evidence of undue influence. [ 58 ] In Kozak Estate (Re) , 2018 ABQB 185 , this court equated undue influence with coercion and said, at para 5: Proving coercion is a stringent undertaking.

In Scott v Cousins , 2001 CarswellOnt 50, [2001] OJ No 19 , Justice Cullity stated at para 113 (OJ) that The following comment in Williams and Mortimer, Executors, Administrators and Probate , (17 th edition, 1993), at page 184 ... is, I believe, an accurate statement: Thus undue influence is not bad influence but coercion. Persuasion and advice do not amount to undue influence so long as the free volition of the testator to accept or reject them is not invaded.

Appeals to the affections or ties of kindred, to the sentiment of gratitude for past services, or pity for future destitution or the like may fairly be pressed on the testator. The testator may be led but not driven and his will must be the offspring of his own volition, not the record of someone else’s. There is no undue influence unless the testator if he could speak his wishes would say “this is not my wish but I must do it.” [ 59 ] A claim of undue influence must be supported by more than innuendo and speculation. There must be evidence of undue influence: Moncrieff v Hayne Estate , 2014 ABCA 297 .

The Court of Appeal of Alberta articulated the principle in Keller v Luzzi Estate , 2010 ABCA 127 at para 32 as follows: The test for undue influence is not a matter of merely influence, nor is it met by evidence that the testator may have been operating under an inaccurate understanding of some relevant circumstances.

The “suspicion” necessary to force a trial on undue influence, putting an entire will into question, requires more than the mere belief by disappointed potential beneficiaries that the repute with a competent testator must have been unfairly hurt such that their hoped for specific legacy was not included. [ 60 ] In the present case, Janet Cote has not offered any evidence of undue influence. Her claim of undue influence is based primarily on the fact that Amanda Gordon had the most to gain from the Deceased’s will and that she was involved in assisting the Deceased have his will prepared.

Janet Cote also relies on the evidence that Amanda Gordon had to “convince” the Deceased to leave something in his will for Ken Gordon. [ 61 ] Janet Cote’s theory is internally inconsistent. If Amanda Gordon was exerting undue influence to maximize her benefit under the will, why would she have “convinced” the Deceased to do something that was directly averse to her best interest, that is to divert $400,000 to another beneficiary? It simply does not make sense. [ 62 ] I accept that Amanda Gordon had a discussion with the Deceased about including her father, Ken Gordon in the will.

I accept that she may have even had to press the Deceased to include Ken Gordon in his will. I do not, however, accept that the Deceased was coerced into doing something that did not reflect his true intentions when the will was executed. Discussing the contents of the will and even advocating for the inclusion of Ken Gordon in the deceased’s will does not amount to coercion or undue influence. [ 63 ] Based on the evidence, I find that Amanda Gordon was not doing anything outside what a normal family caregiver would do in the circumstances. She did not convince the Deceased to prepare a will.

The Deceased had made his mind up to pursue MAID and to do so, he needed a will. There is nothing untoward or unusual about that. Amanda Gordon simply helped facilitate him obtaining the will that he needed by relaying his information and his wishes to legal counsel. I am satisfied that the information she conveyed to the lawyer’s office reflected the Deceased’s own wishes.

When the will was ready to be signed, legal counsel met with the Deceased separate and apart from Amanda Gordon and the lawyer satisfied herself that the will as drafted, accurately reflected the Deceased’s wishes. [ 64 ] As discussed earlier in these reasons, the Deceased’s will accorded with Janet Cote’s expectations. When the will was read, she said “It’s what I expected.” She had discussed the potential estate with Ken Gordon in the months preceding the Deceased’s death and she had concluded that she was not likely to be included as a beneficiary in the will.

She even advised the Deceased at one point to leave everything to the kids. Nothing in Janet Cote’s evidence is consistent with her theory that the Deceased had fully intended to leave her part of his estate and was then coerced into removing her as a beneficiary. [ 65 ] Amanda Gordon did not make decisions for the Deceased. She assisted him in decision making as reflected in the medical

records. However, there is no evidence that the Deceased ever ceded all his decision making to Amanda Gordon or that she ever exercised her capacity as his caregiver to override the Deceased’s wishes. [ 66 ] Uncontroverted evidence establishes that the Deceased was a fiercely independent man right up to the time of his death. His medical records demonstrate that he was an individual who would not be convinced to do anything he did not want to do, even if it was in his best interests.

From recommendations regarding home care, to residing in a seniors’ facility to participating in consults with medical specialists, the Deceased could not be persuaded to do anything he did not want to do, even in his medically vulnerable state. [ 67 ] Considering all the circumstances surrounding the preparation and execution of the will, I am satisfied on a balance of probabilities that the will is valid. When the will was executed, the Deceased had testamentary capacity. There was no undue influence exercised over the Deceased and the testamentary decisions he made were his and his alone.

Conclusion [ 68 ] Janet Cote brought an application challenging the validity of the Deceased’s will. Ken Gordon commenced this

summary judgment application seeking dismissal of Ms. Cote’s application. [ 69 ] Having found that this matter is suitable for disposition by way of

summary judgment, I grant the application for

summary judgment. The Deceased’s will meets the formal requirements for validity under the Wills and Succession Act . The Deceased had testamentary capacity when the will was signed, and he was not subject to undue influence. I am satisfied that the Deceased’s will is valid and that Janet Cote’s application challenging the validity of the will has no merit. [ 70 ] If the parties are unable to agree on costs, they may apply to me, in writing, for a determination. Heard on the 17 th day of January 2023. Dated at the City of Calgary, Alberta this 7 th day of March 2023. R.W. Armstrong J.C.K.B.A.

Appearances: Shannon James and Jennifer Lamb Carscallen LLP for the Applicant, Kenneth Gordon J. Edward Crane and Jenna M. Bever DD West LLP for the Respondent, Janet Lynn Cote Paul M. LeClair and Greg Kaladeen Mergen Law LLP for the Respondent, Amanda Shirley Gordon in her capacity as Personal Representative of the Estate of William Anthony Gordon, also known as William A. Gordon

_______________________________________________________ Corrigendum of the Reasons for Decision of The Honourable Justice R.W. Armstrong _______________________________________________________ Mr. Greg Kaladeen was added as counsel in the appearance

section of this decision.