Devlin Estate (Re), 2021 NSSC 151

SUPREME COURT OF Nova Scotia Citation: Devlin Estate (Re) , 2021 NSSC 151 Date: 20210507 Docket: SBW No. 493217 Registry: Bridgewater Between: Catherine Ruth Summerfield Applicant v. In the Matter of the Estate of Michael John Devlin, deceased and Hazel Rigby Respondents Judge: The Honourable Justice Diane Rowe Heard: November 16, 2020, in Bridgewater, Nova Scotia Counsel: Andrew Christofi, for the Applicant Ms. Hazel Rigby, self-represented By the Court: [ 1 ] Michael Devlin was an accomplished man, with caring friends and family in England and Canada.

He had settled in Nova Scotia’s South Shore upon immigrating to Canada from England, and became an active community member. He was retired at the time of his death, and well established financially. In Lunenburg County, he was known as a colourful “character”, who could be generous and kind. [ 2 ] He was also a man who struggled throughout his life with significant mental illness. This was managed with medication, but unfortunately from time to time he would decompensate. Then he would alternate into periods of suspicion, paranoia, and physical neglect.

He would rail against his neighbours, friends, and others in the community and many local businesses. [ 3 ] At the time of his death, he had decompensated significantly. His body was found in his home, where he lived alone, and was surrounded by garbage, feces and blood. [ 4 ] This is an application by Ms. Catherine Summerfield for proof in solemn form of a holographic will Mr. Devlin is purported to have made on October 4, 2018 (the “Holograph”). Upon proof of the Holograph, Ms. Summerfield seeks to receive a grant of probate and be named the administrator of the Devlin estate.

She is also the residual beneficiary of the Holograph. [ 5 ] The application is contested by Ms. Hazel Rigby, a cousin of the deceased. Ms. Rigby challenges the validity of the Holograph. Ms. Rigby is a retired senior citizen. She appeared without counsel throughout the proceeding, and did so remotely from her home in the United Kingdom during its Covid-19 lockdown. [ 6 ] She is supported in her submissions contesting the application by lifelong friends of Mr. Devlin, who include Mr. John Hensley and Mr. Declan O’Dowd. The depth and strength of their attachment to Mr.

Devlin was evident, as was their sorrow on the circumstances of his death. BACKGROUND [ 7 ] Mr. Devlin executed a formal will on February 25th, 2016 (the “Will”). Mr. Gordon Davidson prepared and witnessed this Will. [ 8 ] The Will provided for testamentary gifts to a number of individuals, including 5000 pounds sterling to Ms. Rigby, several registered charities, and St. Barnabas Anglican Church. It was quite specific in regard to his interment and funeral, which was to be held formally with a Church service. The Will provided specific bequests to the O’Dowd family, a local family who he trusted. [ 9 ] Mr.

Devlin executed a Power of Attorney, made in 2012, in which Mr. O’Dowd’s parents were appointed Mr. Devlin’s personal attorneys. Mr. O’Dowd’s parents are also quite elderly, and more recently unable to perform this function. [ 10 ] Some time after the Will was created in 2016, Mr. Devlin met Ms. Summerfield. Ms. Summerfield then owned a local café Mr. Devlin liked to visit. They became friendly.

[ 11 ] Ms. Summerfield became Mr. Devlin’s paid caregiver. In time, she closed her café. [ 12 ] In July 2018, Ms. Summerfield had a motor vehicle accident. Ms. Summerfield then left Nova Scotia, in November 2018, for British Columbia to visit her daughter. She made one short term visit back to Nova Scotia prior to Mr. Devlin’s death. [ 13 ] Mr. Devlin had continued a correspondence with her. He sent love poems, and entreaties for her return to live with him. [ 14 ] His correspondence was supportive in other ways. Ms. Summerfield shared with the Court a letter Mr.

Devlin wrote for her benefit, to an unknown person that is dated September 9, 2018, stating that he paid Ms. Summerfield a salary of $1000 a week, but had to cut it back to $100 a week due to the effect of her injuries. [ 15 ] Ms. Summerfield states that Mr. Devlin mailed her a copy of the Holograph. It is a one page handwritten document dated October 4, 2018, written in blue ink. She gave sworn evidence that Mr.

Devlin never discussed the Holograph with her or his intentions in making it at any time, not even when she did return to Nova Scotia at an unspecified time, which was after the date appearing on the Holograph. [ 16 ] Mr. Devlin died in his home on or about May 2, 2019 at Blue Rocks, Lunenburg County. Approximately seven months had passed after the date on the Holograph to the time of his death. [ 17 ] One month after Mr. Devlin’s death, the Court received an application for proof in common form, with a grant of administration, filed by Ms. Summerfield. A copy of the Holograph was also submitted by Ms.

Summerfield, affixed to her affidavit dated October 3, 2019, attesting that it was a valid holographic will. [ 18 ] The Registrar of Probate requested that it be submitted to the Court for proof in solemn form prior to issuing any grant of administration of the estate. [ 19 ] Some friends of Mr. Devlin were thereafter informed of the application, and they began contact with the Court and made enquiries of Ms. Summerfield. [ 20 ] Mr. John Hensley was first identified as a cousin of Mr. Devlin’s, as was Ms. Rigby.

They each filed notices of objection to the application citing irregularities and concerns with the manner in which Mr. Devlin was buried and the dealings with the assets of his estate. [ 21 ] Upon Mr. Devlin’s death, Ms. Summerfield proceeded to clear out Mr. Devlin’s home. She sold his possessions. Further, she had entered into an agreement of purchase and sale with prospective buyers for Mr. Devlin’s home. The agreement was made conditional pending the outcome of the proof in solemn form application. The purchasers entered the home, and are living there, paying occupation rent. Ms.

Summerfield opened an estate account and states she has placed funds in this account. Mr. Devlin’s car was sold by Ms. Summerfield. There was an additional issue in regard to a motorcycle and accounting for its ownership. [ 22 ] Upon Mr. Hensley and Ms. Rigby filing notices of objection with the Probate Court, Ms. Summerfield moved first for security for costs as against Mr. John Hensley. She was not successful. I will refer to Justice Moir’s decision in regard to that motion more fully below. [ 23 ] Ms. Summerfield then moved for the removal of Mr. Hensley for lack of standing. Mr.

Hensley was discovered to not be a cousin of Mr. Devlin’s, but a very close family friend who mistakenly thought they were cousins due to their lengthy familial friendship from childhood. Ms. Summerfield’s motion also requested that the Court strike the affidavit of Declan O’Dowd, that had been filed in support of the objections of Mr. Hensley and Ms. Rigby. Mr. O’Dowd was summoned to Mr. Devlin’s home by the RCMP when his body was discovered. He had secured the property and found a copy of an amended version of the Will (“Amended Will”).

He also produced the Power of Attorney. [ 24 ] The Court was provided with a photocopy of the Amended Will, with handwritten amendments, consisting of strikethroughs and additional notations, that were initialled and dated on May 20, 2018. “Catherine” is referred to within these notations. The final page of the Amended Will is again countersigned by Mr. Michael Devlin, and a handwritten “Catherine Summerfield”, appears on the last page also dated May 20th, 2018. Ms.

Summerfield states in her affidavit evidence that she had no knowledge of the Will, the Amended Will, and had not signed the Amended Will. [ 25 ] Upon that motion, I found that Mr. Hensley was not an interested person, pursuant to the Probate Act , S.N.S. 2000, c.31 and he was removed as a party. I also held that Ms. Rigby could enter the affidavits of Mr. Hensley and Mr. O’Dowd in support of her objection, if she chose to rely upon them, as they contained both relevant and admissible evidence. [ 26 ] Upon the beginning of the hearing of the proof in solemn form, Ms.

Summerfield moved to strike portions of the Hensley and O’Dowd affidavits. Portions were found to be inadmissible, on the basis of objections to their contents due to hearsay, lay opinion, legal argument, and relevance. As the affidavits were drafted by the affiants personally, without the aid of counsel and with limited legal information to guide their efforts, this was not unexpected. However, portions of the Hensley and O’Dowd affidavits were found to be admissible and relevant to the application for proof in solemn form as providing evidence of Mr.

Devlin’s testamentary intentions, capacity and circumstances. [ 27 ] The two-day hearing of the application for proof in solemn form was impacted by the Covid-19 pandemic. The initial hearing dates were adjourned as the Court entered a period of essential services and rescheduled. Parties and witnesses participated in person, by video and by phone. Ms. Rigby and Mr. Hensley are resident in England. Mr. O’Dowd attended personally in Court. Ms.

Summerfield did not attend in person in Nova Scotia, as restrictions on travel from British Columbia required a two-week quarantine period in advance of attendance. [ 28 ] With this backdrop, the applicant, Ms. Summerfield, must prove to the Court that the handwritten document dated October 3,

2018 is a valid holograph will of Mr. Michael Devlin on the application for proof in solemn form. Application for Proof in Solemn Form of the Devlin Estate [29] Justice Gerald Moir’s decision in Devlin Estate (Re), 2020 NSSC 77, addressed the motion for security for costs by Ms.Summerfield as against Mr. John Hensley. The Public Trustee appeared before Justice Moir to make submissions. Mr.

Hensley, Ms.Rigby, and counsel for the Canadian Cancer Society and the Arthritis Society were parties but did not appear. [30] In considering the motion for security for costs, which was dismissed, Justice Moir made a series of observations on theProbate Act and the hearing of applications for proof in solemn form, finding that an application for proof in solemn form shouldproceed by way of a formal hearing akin to a trial, rather than a half-hour regular Chambers appearance. [31] I specifically refer to paragraphs 37 to 57, of Devlin, supra, as most directly applicable, to this hearing: [37] The regulations turn to the specific application that concerns us, the application for proof in solemn form, at s. 69 and s. 71. [38] Section 69(1) requires: If an original will is lost or destroyed, the validity and content of the will shall be proved inaccordance with

Section 31 of the Act upon an application for proof in solemn form, unless the court otherwise orders. [Emphasismine] · · · [45] Stuart Cunningham Macaskie, The Law of Executors and Administrators (1881, London, Stevens and Sons) introduces ChapterV “Of Proving the Will” with “Anciently wills were proved in the Ecclesiastical Courts.” (p.29). “Wills are proved in common form,where there is no dispute as to the probate, or in solemn form … where there is a dispute, or likelihood of dispute.” (p. 31). [46] Probate obtained by proof in common form is not conclusive: p. 32.

An interested party may require proof in solemn form orthe executor may go that route in the beginning, p. 32-33. [47] Mr. Macaskie says at p. 33-34: The old method of proof in solemn form was to summon all persons who would be interested inthe will being pronounced against, and to have witnesses examined, and cross-examined as to the will and its execution, whereuponprobate was granted or refused. Now the matter proceeds much as any other action under the Judicature Acts, with statements of claimand defence…, for the pleadings.

Persons, not parties to the cause, but interested, may intervene with the leave of the Court. · · · [52] I turn from the history of proof in solemn form to what must be proved. The controlling authority is Vout v. Hay, (SCC), [1995] 2 S.C.R. 876. Justice Sopinka wrote for the court. [53] The proponent of the will has to prove, on a balance of probabilities, that the formalities for execution were compliedwith (para. 19). In the case of an alleged holographic will, the requirement is for proof that the writing embodies “thetestamentary intentions of the deceased”: s. 8A(

a) of the Wills Act, R.S.N.S. 1984, c. 505 as amended by S.N.S. 2006, c. 49. [54] The proponent also has to prove “that the testator knew and approved of the contents of the will”: also para. 19 of Vout. [55] Thirdly, the proponent has to prove testamentary capacity. That is to say “the testator had a disposing mind andmemory”: para. 20 of Vout. [56] Finally, an opponent of a will proven as required under the first three principles bears the onus to establish fraud orundue influence: para 21.

However, proof of suspicious circumstances may negative knowledge and approval or, as well,testamentary capacity: para. 27 of Vout. [57] In my assessment, the Probate Act of 2000 and the Probate Court Practice, Procedures and Forms Regulations of 2001 do notloosen the procedural rights of next-of-kin and they do not water down the substantive requirements on a proof in solemn form. Nothingin the language of the statute or the regulations changes the substantive requirements set by the Supreme Court in Vout.

Ms.Summerfield bears the onus of proving: - The alleged holographic will embodies the testamentary intentions of Mr. Devlin; Mr.Devlin knew and approved of the contents; - Mr. Devlin had testamentary capacity in the sense of “a disposing mind andmemory”. [Emphasis added] ISSUES 1. Lost Will 2. Holograph Will 3. Proof of Testamentary Capacity and Suspicious Circumstances

LAW and ANALYSIS 1. Lost Will [ 32 ] Ms. Summerfield states in her affidavit dated October 21st, 2019, that she often received correspondence from Mr. Devlin. She says she received the Holograph, without comment, by mail. She also swears that she sent the Holograph, that had been copied and attached with her supporting affidavit, with a signed application for Probate, by registered mail to her counsel. [ 33 ] Mr. Andrew Christofi is Ms. Summerfield’s counsel. In his affidavit dated October 21, 2019, Mr.

Christofi swears that he has no record of having received the Holograph, and even if received, he cannot locate the original Holograph in his office, despite diligent searching. [ 34 ] The submission of counsel on this point, in the applicant’s submission filed in November 2019, is also equivocal: “… a number of possibilities may be imagined: the original signed holograph will was mailed out to the solicitor but it was lost in the mail; or the solicitor received the original signed holograph will and subsequently mislaid it.” [ 35 ] The affidavit of Andrea Johnson, a Notary Public in British Columbia, dated June 5, 2019, was provided to the Court.

Ms. Johnson swears that she prepared a photocopy of a document purporting to be the original holograph will of Michael Devlin, which she stamped and attached to Ms. Summerfield’s affidavit. [ 36 ] Ms. Summerfield has provided evidence to the Court that she had this writing in her possession, but she has not established that she received this writing by mail from Mr. Devlin. I find that her evidence is not wholly credible on this point. [ 37 ] It is possible to imagine that Mr. Devlin sent the writing to her, possibly in order to further what appears to be a romantic interest.

This aspect of his relationship with her is plainly evident in the poems he self-published about Ms. Summerfield in June 2018, coincident with her leaving Nova Scotia, and which Ms. Summerfield provided to the Court. That said, it is very difficult to believe that Mr. Devlin, who was so very expressive in regard to his affection and attachment for Ms. Summerfield, never expressed to her his intentions in regard to the Holograph. As she represented in her own affidavit evidence to the Court, Mr. Devlin proposed marriage to her. [ 38 ] If there was proof of the Holograph having been discarded by Mr.

Devlin, then the application would end here as the disposal would be indicative of the testator’s intention to not revoke his existing Will. As it is, there is not much more than a question posed by how Ms. Summerfield came into possession of the Holograph. [ 39 ] It is equally possible to imagine that Ms. Summerfield obtained the writing, where it may or may not have been discarded, from Mr. Devlin’s residence on the visit when she was in Nova Scotia, prior to his death. [ 40 ] In any event, the Holograph is not available in its original form. The best evidence available to the Court is a photocopy.

It has been corroborated to have existed in an original form by the affidavit of Ms. Johnson, whose evidence I find credible as she has no self- interest in making the statement. 2. Holograph Will [ 41 ]

Section 8A(

a) of the Wills Act , R.S.N.S. 1984, c. 505 as amended by S.N.S. 2006, c. 49 , provides that a court may make an order recognizing that a document embodies the testamentary intentions of the deceased or the intention of the deceased to revoke, alter or revive a will of the deceased, as if it had been executed in compliance with the formal requirements of the Wills Act . [ 42 ]

Section 41 of the Nova Scotia Evidence Act, R.S.N.S., 1989, c. 154 provides that a court may make a comparison of disputed writing with any writing proved to the satisfaction of the judge to be genuine, and such writing, and the evidence of witnesses respecting the same, may be submitted to the Court as evidence of the genuineness or otherwise of the writing in dispute. [ 43 ] I reviewed the several letters written by Mr. Devlin, an entire address book that Mr. Devlin had handwritten, and samples of his handwriting from numerous Small Claims court proceedings that Mr.

Devlin initiated in the Southwestern District prior to his death. [ 44 ] On the basis of this comparison, I find that the Holograph was wholly in Mr. Devlin’s handwriting. [ 45 ] In regard to the Holograph’s content, it uses “will-like” language. There is a repetition of only two bequests found in the Will and continuing in the Amended Will, those made to Ms. Janet Findon and the Boy Scouts of Canada. The rest find no mention again. Ms.

Summerfield would be the beneficiary of the bulk of the Devlin estate if the Holograph is found to be a valid instrument in writing. [ 46 ] The issue of testamentary capacity is an element to be considered in regard to the validity of a holograph will.

It is a rebuttable presumption that the testator had capacity, however evidence concerning the circumstances in which a holograph will is prepared may require the Court to consider whether it was created in the context of suspicious circumstances, which may extinguish the presumption that the deceased had testamentary capacity at the time of creating the instrument. [ 47 ] In Casavecchia v. Noseworthy , 2015 NSCA 56 , the applicant sought the Court’s determination of whether a handwritten letter from her father was a testamentary instrument.

Oland J.A., wrote at paragraph 21: [21] As authority for her submission that ascertaining the intention of William Casavechia as expressed in the letter is a question of law so the applicable standard of review is correctness, the appellant relies on ¶8 of Prevost Estate v. Prevost Estate, 2013 NSCA 20 . She does not, however, address its ¶ 9. Following is an extract from Bryson J.A.’s decision: [7] Much has been written about the principles governing the

interpretation of wills. Often there is a debate about how far the court

may stray beyond the language used by the testator in her will. But there is unanimity on the beginning (Smithers v. Mitchell Estate,2004 NSCA 149): [19] The first duty of the court is to ascertain the intention of the testator from the language used in the will. Regard mustbe had, not only to the whole of any clause in question, but to the will as a whole, which forms the context of the clause. Effect must begiven, if at all possible, to all parts of the will.

A fair and literal meaning should be given to the actual language of the will, the ordinaryand grammatical sense of the words to be assigned unless the context otherwise dictates. The context may well include “surroundingcircumstances”. Only after the language employed by the testator has been approached in this fashion need resort be had to case law andlegal rules to see if any modification is required. These principles were referred to with references to relevant authorities by Davison, J.in Carter Estate Re: (1991), (NS SC), 109 N.S.R. (2d) 384 (T.D.).

The role of “surrounding circumstances” in thisexercise was discussed by this Court in Re: Murray Estate (2001), 2001 NSCA 25 , 191 N.S.R. (2d) 63, at paras. 20-25. [Justice Bryson’s bolding] [8] One might have thought that ascertaining intention is a question of fact. But courts have long held that ascertaining the intentionof a deceased as expressed in her will is a question of law (Thomas G. Feeney and Jim Mackenzie, Feeney’s Canadian Law of Wills, 4thed., looseleaf (Toronto: Butterworths, 2000) ¶10.1).

The Supreme Court has described it this way: ... in construing a will, deed, contract, prospectus or other commercial document, the legal effect to be given to the language employed, isa question of law and in the construction of such a document, ... [R. v. Alberta Giftwares Ltd., (SCC), [1974] S.C.R. 584, at p. 588] [9] Sometimes it is necessary for the court to consider “surrounding circumstances” and to make findings of fact or mixed fact andlaw. When this occurs, the Court of Appeal can only interfere if the trial judge makes a palpable and overriding error. (See for example,McCormick v.

MacDonald, 2009 NSCA 12 at ¶ 61.) [48] I must turn now to whether there is proof that the Holograph expresses Mr. Devlin’s testamentary intention, in light of thesurrounding circumstances of its creation. [49] Ms. Summerfield does not offer corroborative proof concerning Mr. Devlin’s testamentary intentions. Her evidence is that Mr.Devlin had never spoken with her at any point about the Holograph. It is submitted that the Holograph in itself is demonstrative proof ofMr.

Devlin’s intention, and establishes a rebuttable presumption of his capacity. [50] The language of the Holograph does not revoke prior Wills, however there is a reference to specific bequests of $10,000 to fourbeneficiaries, and the “… remainder of my Estate, including all goods, chattels and monies…” to Ms. Summerfield. It is dated, andcontains legalistic language used somewhat correctly for a non-lawyer that, on its face, would demonstrate an intention of Mr.

Devlin todispose of his property upon his death. [51] However, as part of determining the validity of this Holograph, and upon reviewing the totality of the evidence before me, Iam required to consider whether Mr. Devlin had testamentary capacity at the time of the Holograph’s creation, taking into account thesurrounding circumstances and the objection of Ms. Rigby. 3. Proof of Testamentary Capacity and Suspicious Circumstances [52] As LeBlanc J., writing in Robitaille v.

Robitaille Estate, 2011 NSSC 203, at paras 22-24 noted: [22] At the hearing of this application, I raised, on my own motion, the issue of testamentary capacity. The lawyer who prepared thewill never questioned the testator on the issue of capacity because he received his final instructions over the phone and his normalpractice was to do so when the will was executed.

Where a will complies with the formalities of execution and was reviewed by thetestator, there is a rebuttable presumption of testamentary capacity (Willis Estate (Re), 2009 NSSC 231, 51 ETR (3d) 304; Vout v.Hay, (SCC), [1995] 2 SCR 876, 7 ETR (2d) 209). [23] Should the same rebuttable presumption apply in the context of a writing that does not comply with the formalities ofexecution?

In my view, the same rebuttable presumption should apply to a writing that a party seeks to enforce as valid andeffective. [24] I see no principled reason why “a writing” should be treated differently simply because it does not comply with the formalitiesof execution. This is not to say that the circumstances in which the writing is prepared cannot raise the “suspiciouscircumstances” necessary to extinguish the presumption. [Emphasis mine in bold] [53] More recently, Hood J., was required to consider whether a deceased testator’s delusion was such that the testamentarydisposition in their will was invalid.

As she observed in Fawson Estate (Re), 2012 NSSC 55 at paras 195: [195] In Re Marsh Estate (1990), (NS SC), 99 N.S.R. (2d) 221 (Probate Court), (upheld on appeal (1991), 104N.S.R. (2d) 266 (C.A.)), Bateman, J. (as she then was) said at paragraphs 14 and 15: 14 A person can suffer from delusions yet maintain testamentary capacity provided those delusions do not affect the testator’s decisionas to the bequest. 15 It is further stated that if insane delusions on any subject prove to have existed, the burden of proving that the delusions under whichthe testator labored were of such a character that they could not be reasonably supposed to affect the disposition of his property is uponthose who support the Will, although the terms of the Will itself may be sufficient to discharge the onus (The Canadian Law of Wills, 3rd

edition, Thomas Feeney). [196] In Vout v. Hay, (SCC), [1995] 2 S.C.R. 876, the Court considered the issue of suspicious circumstances.Sopinka, J. said in paras. 26 and 27: 26 Suspicious circumstances in any of the three categories to which I refer above will affect the burden of proof with respect toknowledge and approval. The burden with respect to testamentary capacity will be affected as well if the circumstances reflect on themental capacity of the testator to make a will.

Although the propounder of the will has the legal burden with respect to due execution,knowledge and approval, and testamentary capacity, the propounder is aided by a rebuttal presumption.

Upon proof that the will wasduly executed with the requisite formalities, after having been read over to or by a testator who appeared to understand it, it willgenerally be presumed that the testator knew and approved of the contents and had the necessary testamentary capacity. 27 Where suspicious circumstances are present, then the presumption is spent and the profounder of the will reassumes the legal burdenof proving knowledge and approval. In addition, if the suspicious circumstances relate to mental capacity, the profounder 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. This burden can be satisfied by adducing or pointing to some evidence which, ifaccepted, would tend to negative knowledge and approval or testamentary capacity.

In this event, the legal burden reverts to theprofounder. [197] The rebuttal presumption of testamentary capacity means that those attacking the will must bear the burden of showing someevidence that could tend to negative testamentary capacity. If that is done, then the burden shifts back to the proponent of the will toshow, on a balance of probabilities, that the testator had testamentary capacity. [198] In this case, James Fawson must rebut the presumption of testamentary capacity by adducing some evidence of suspiciouscircumstances.

If he does so, then Sandra Deveau must establish testamentary capacity on a balance of probabilities. [199] In Re Keddy Estate, 2002 CarswellNS 451 (Probate Court), Hall, J. referred to the burden of proof and suspiciouscircumstances at para. 25 as follows: 25 The propounder of a will has the burden of proving on a balance of probabilities, among other things, that the testator had the mentalcompetence or capacity to make a will. Once due execution of the will is established, the propounder has the benefit of a rebuttalpresumption that the testator had the capacity to make a will.

Where ‘suspicious circumstances’ are present, however, the presumptionmay not be relied upon. The question then becomes, what constitutes suspicious circumstances and how do they affect proof of themental capacity of the testator. [54] Ms. Rigby submits that the Holograph was created in suspicious circumstances. While she sets this out in the more regularsense of the word “suspicious” (rather than in its legal sense in estates law) it is clear that her objection is founded on her view that Ms.Summerfield benefitted from a relationship of dependency with Mr.

Devlin, a person who was lonely, of means, and who was strugglingwith his mental health profoundly. [55] Further, Ms. Rigby indicates in her submission that Mr. Devlin lacked the requisite testamentary capacity to complete aholographic will at the time of its writing as he was not taking his medication, and was incompetent due to his fully unregulated bipolardisorder. [56] I do note that Ms. Summerfield acknowledges in her evidence that Mr. Devlin had bipolar disorder but that she thought he tookhis medications. She states she returned Mr.

Devlin’s “…unused medications to a pharmacy for disposal” after his death, but there isnothing provided to corroborate this. There is no way to ascertain if he was or was not medicated and whether the medications wereunused due to his discontinuing taking them or unused as he had passed away. [57] In regard to points to consider in regard to suspicious circumstances, Kershman J in Yeas v. Yeas, 2017 ONSC 7402, writes atparas 246-248: [246] He cites the case of Faulkner v. Faulkner (1920), (SCC), 60 S.C.R. 386, in which five members of the SupremeCourt cited Parker v. Felgate with approval.

b) Suspicious Circumstances [247] The persons propounding the will, in this case, Kevin and Charlie, have the legal burden of proof with respect to the execution,knowledge, approval and testamentary capacity. As noted above in Vout v. Hay, upon proving that the will was duly executed and that itwas read to or by the testator who appeared to understand it, it will generally be presumed that the testator knew and approved of thecontents of the will and had the necessary testamentary capacity. At that point, the evidentiary burden shifts to the person attacking thewill, in this case, to Dan.

The evidentiary burden can be satisfied by introducing evidence of suspicious circumstances which wouldnegative knowledge and approval or testamentary capacity. In that case, the burden would shift again, this time to the propounders of thewill, being Kevin and Charlie (Scott v.

Cousins, [2001] O.T.C. 9 (S.C.), at para. 39). [248] When considering whether or not there are suspicious circumstances, the Court may consider: 1) The extent of physical and mental impairment of the testator around the time of the will was signed; 2) Whether the will in question constituted a significant change from the formal will; 3) Whether the will in question generally seems to make testamentary sense;

4) The factual circumstances surrounding the execution of the will; 5) Whether a beneficiary was instrumental in the preparation of the will. See Brian A. Schnurr, Estate Litigation, loose-leaf, 2nd ed. (Toronto: Carswell, 1994) (2016, revision 8), ch. 2.1(c). [58] Direct evidence on a number of the points above is on the record, with some evidence established by the corroboration ofwitnesses.

I have also had to weigh the credibility and reliability of the witnesses accordingly. [59] Justice Davison, writing in Murphy Estate (Re), (NS SC) noted that corroborative evidence is appropriatelyconsidered in estates matters when such evidence assists the judge to believe one or more of the material statements or facts deposed to.As he noted, the weight of the evidence will vary, but its admissibility cannot depend on its weight. It must be sufficient to corroborate,that is, to strengthen, the evidence of the party. [60] More recently, Warner J in Trimar Promotional Products Limited v.

Milner, 2021 NSSC 98, concisely reviewed evidentiaryprinciples concerning reliability and credibility in a civil matter at paragraphs 15-20 as follows: [15] To assist in the assessment of reliability and credibility of evidence, courts have approved several tools. [16] For reliability, courts look at: 1. the accuracy and completeness of observations; 2. the circumstances of observations; 3. memory; and 4. the presence of collaborative or supporting evidence. [17] As O’Halloran J.

A. wrote in Faryna v Chorny, (BC CA), 1951 CarswellBC 133 (BCCA), (“Faryna”) at paras.9, 10 and 11: … Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, aswell as other factors, [relate to reliability.] … a witness may testify what he sincerely believes to be true, but he may be quite honestlymistaken. … The trial judge ought to go further and say that evidence of the witness he believes is in accordance with the preponderanceof probabilities in the case … [18] For credibility, courts look at: 1. honesty, 2. whether a witness has an interest in the matter or a motive to give certain evidence, 3. the consistency or inconsistency over time amongst a witness’ different iterations of the facts, 4. internal inconsistencies in a witness’ evidence, 5. consistency or inconsistency with other evidence, 6. demeanor, but considered with caution, and 7. the inherent reasonableness of the evidence, that is, whether it makes common sense. [19] O’Halloran wrote in Faryna: If a trial judge’s finding of credibility is to depend solely on which person he thinks he made the better appearance of sincerity in thewitness box, we are left with a purely arbitrary finding and justice would then depend upon the best actors in the witness box … The realtest of truth of the story of a witness in such a case must be in harmony with the preponderance of the probabilities which a practical andinformed person would readily recognize as reasonable in that place and in those conditions. [20] It is not required that a trier of fact believe or disbelieve a witness’ evidence in its entirety.

On the contrary, a trier may believenone, part, or all of a witness’ evidence and attach different weight to different parts of it. [61] Several affidavits were filed in this matter by Ms. Summerfield, and she gave oral testimony which Ms. Rigby cross-examinedher upon. [62] Further, the affidavits of Mr. Hensley, and Mr. O’Dowd, were before the Court. Both of these individuals gave oral testimonyand were cross-examined on their evidence by Ms. Summerfield’s counsel. [63] Ms. Summerfield, Mr. Hensley and Mr. O’Dowd corroborated each other’s evidence concerning the severity and lengthynature of Mr.

Devlin’s bipolar disorder. Ms. Summerfield herself indicated that it interfered with his living a peaceful and healthful life,and that she observed that he had descended into a spiral as his physical and mental health deteriorated. [64] Ms. Summerfield’s evidence in her affidavit sworn January 16, 2020, indicates that Mr. Devlin’s antisocial behaviors weresignificant enough to result in arrest, remand and a sentence with probation resulting.

[ 65 ] She further notes in the same affidavit that just after Mr. Devlin’s death: In May 2019, I asked Robert Demone to start by checking on the Property. Afterwards he would cut the lawn and plow the driveway and sidewalk of snow. He disposed of bloodstained sheets, moldy dishes, fecal and blood-stained carpet and urine and blood-stained mattresses, and cleaned out the fridge. He also met with the purchasers when they were first interested in purchasing the Property. [ 66 ] Mr. Declan O’Dowd’s affidavit of March 17, 2020 contained the statement that he observed Mr.

Devlin’s bipolar disorder as “wildly out of control” in the last two years of his life. He also stated that Mr. Devlin had told him that he was not taking his prescribed medicine as “it messed with his true state of mind”. [ 67 ] Mr. Hensley provided similar evidence of Mr. Devlin telling him he was not taking his prescribed medication. He also indicated that from January 2019 that Mr. Devlin’s physical health also deteriorated with edema of the legs. [ 68 ] Mr. Hensley’s evidence concerning Mr. Devlin’s physical health was corroborated when I read correspondence between Mr. Devlin and Mr.

Murray Ritch, QC, date stamped by the Bridgewater Court on May 1, 2019 and that was provided by Ms. Summerfield as a handwriting sample. In this letter, Mr. Devlin indicates he has just left hospital and that he was having difficulty with “COPD” or congestive heart failure and edema, plus “three whiplash injuries”. He requests that they adjourn “without day”. [ 69 ] I found both Mr. Hensley and Mr. O’Dowd to be credible witnesses. I found that their evidence corroborated one another’s and Ms. Summerfield’s concerning the severity of Mr. Devlin’s physical and mental challenges at about the time of the Holograph.

Mr. Devlin was experiencing serious physical and mental impairments around the time the holographic will was made. This emerged in the interplay of evidence between these three witnesses. [ 70 ] I am satisfied that Mr. Devlin had serious physical impairments, that were becoming more aggravated during the time he is purported to have made the Holograph. The degree of his mental impairment was demonstrated as striking upon reviewing the many Small Claims Court actions Mr.

Devlin filed in the two years leading up to his death. [ 71 ] To begin, I noted that the Holograph constituted a very significant change from the intentions expressed in the Will, and even from the Amended Will, in terms of beneficiaries and funeral planning. St. Barnabas Anglican Church was initially a beneficiary and a central part of Mr. Devlin’s funeral planning. The Church was later deleted from the Amended Will, with a new notation for a First Baptist church. [ 72 ] This new disavowal of St. Barnabas Anglican Church was further shown in Mr. Devlin’s Small Claims court actions.

In the course of two years prior to his death, he filed four claims against St. Barnabas Anglican Church. In one matter he claimed damages of $25,000 for loss of income for a fall due to placement of a prayer lectern. [ 73 ] These four actions against his former Church were part of forty-two Small Claims actions that Mr. Devlin filed with the Bridgewater Court, that were still current at the time of his death. They begin in April of 2017, starting with two actions filed that month.

He continued with his filings, and in October 2017 he filed seven actions against various defendants. [ 74 ] This litigious pattern in Small Claims accelerated the following month, as he filed fifteen actions in November, averaging two or three actions per day. On November 15th, 2017 he filed seven actions. [ 75 ] The following year, Mr. Devlin filed an additional eighteen Small Claims actions starting in March and into November, 2018. [ 76 ] This is not rational behaviour.

The defendants ranged from health care providers, telecommunications companies, large retailers, small local businesses, and private individuals. [ 77 ] In November 2018, at about the time of the Holograph’s creation, Mr. Devlin filed claims seeking cumulative damages of $75,000 in three matters filed against a couple as their dog barked too loudly over the course of 12 years.

It had disturbed his sleep. [ 78 ] Poor cell service prompted three more claims, against two different providers, each with an unrealistic claim for damages. [ 79 ] Bridgewater Honda was the subject of a claim for $25,000 for throwing him off the premises, and failing to customize a car. The Biscuit Eater was also subject to a claim for $25,000 for “original ideas unlimited”. [ 80 ] In June, 2018, Mr. Devlin sought damages in the amount of $25,000 against a plumbing company because the plumber who came told him he “peed on the floor”, and that Mr.

Devlin charged an “hourly consultancy rate of $1000”. [ 81 ] In another action, $4000 was claimed for loss of income and that “2 cartons of milk that were past due” were sold to him. Again, the base of “$1000” for his hourly rate is listed. [ 82 ] As referenced earlier in this decision, an exhibit was provided of a letter Mr. Devlin wrote indicating that $1000 per week was the amount of funds he paid Ms. Summerfield weekly when she was employed as his caretaker. [ 83 ] Mr. Christofi submitted these Small Claims forms as handwriting samples for the consideration of the Court, attached to his own affidavit.

In argument, he characterized the content of the documents as frivolous, or vexatious, but not as evidence that Mr. Devlin was struggling with a severe unregulated mood disorder from 2017 and into the latter part of 2018. Upon reading the contents of the forty-two claims it clearly indicates that Mr. Devlin was beyond “colourful” in 2017 and 2018. Mr. Devlin’s writing may have shown adept use of legalistic language but it was used in a formulaic manner, devoid of real meaning.

[ 84 ] That concurs with the content of the Holograph. [ 85 ] Ms. Summerfield, Mr. Hensley and Mr. O’Dowd, all agree in their evidence that Mr. Devlin suffered from a serious mental illness. Ms. Summerfield’s affidavits reference Mr. Devlin having significant personal dysfunction at the time just prior to and coincident with his death. This is corroborated by Mr. O’Dowd’s affidavit and oral evidence. This is sufficient to have rebutted the presumption Mr.

Devlin had capacity, and proof of his capacity must be established by the applicant. [ 86 ] It is true in law that a person with a mental health issue is not deemed to be incapable, however the proponent of the holograph will must demonstrate that, on a balance of probabilities, the person had the requisite capacity at the time the testamentary disposition took place. If anything, Ms. Summerfield has provided evidence that Mr.

Devlin did not have the capacity to make a valid testamentary disposition about the time of the purported Holograph’s creation. [ 87 ] I note that the Will set out a very formal Anglican Church service, with interment and headstone as per Mr. Devlin’s instructions. When he did pass, in the absence of any information concerning his wishes as set out in the Will, Ms. Summerfield authorized his cremation, with ashes placed in a Branston pickle jar. This was also a dramatic difference. [ 88 ] Ms. Rigby is an interested party in the prior Will, however she is not a beneficiary in the Holograph.

She appears to be motivated primarily by a sense that an injustice may occur without the intervention of Mr. Devlin’s friends, as she perceived he was vulnerable due to his mental illness. I found her submissions to be persuasive, and her commitment to her friend was consistent. [ 89 ] Ms. Summerfield was not a credible witness in relation to proving the Holograph. I do, however, accept her evidence that the two were engaged in a relationship of dependency, and with some affection. However, the burden on her was substantial to prove that Mr. Devlin had testamentary capacity in the circumstances. [ 90 ] Ms.

Summerfield gave evidence that she was “moving to Lunenburg when she is able…”. I must conclude then that she isn’t resident in Nova Scotia. Her evasiveness on this point is concerning, as residency is a requirement under the Probate Act . [ 91 ] The proceedings have demonstrated to the Court that Ms. Summerfield has actively administered the estate, without authority, beginning within a month of Mr. Devlin’s death and in a manner that may be to her own benefit. [ 92 ] As was noted, prior to the proof in solemn form and the opening of the estate, a conditional agreement of purchase and sale was concluded by Ms.

Summerfield. Ms. Summerfield states in her initial affidavit with the Court that the assessed value of Mr. Devlin’s home in Blue Rocks, Lunenburg County is $140,000 and it was then unencumbered. The Agreement of Purchase and Sale submitted to the Court by a subsequent affidavit of her counsel discloses a sale price of $250,000. There are related issues in regard to vehicles that formed part of the estate, but which were purported to be gifts or purchased. [ 93 ] Justice Mona Lynch, on the Motion for Directions, cautioned Ms.

Summerfield that this was premature, and requested that the applicant inform the Court of the status of the estate assets. [ 94 ] By correspondence to the Court, in response to this enquiry, Ms. Summerfield indicated that the monthly payments on the house went first into an account in her name, and then she transferred the money to an account she established for Mr. Devlin’s estate. This was not authorized by the Court, and is neither prudent, nor rational. Conclusion [ 95 ] I find that the applicant has not led evidence that is credible or reliable to prove that Mr.

Devlin had the requisite testamentary capacity to create a valid holograph will about the time of its writing. I dismiss the application for proof in solemn form of the Holograph. [ 96 ] I further find that the Will concluded in 2016 is not invalidated by virtue of the amendments which Mr. Devlin made upon it in May 2018, nor are those amendments of any force or effect. [ 97 ] On a consideration of all the evidence before me, it is clear that Mr. Devlin was struggling with maintaining his physical and mental health.

It is unfortunate that an intervention did not take place in a timely manner to assist him. [ 98 ] Ms. Rigby seeks that the Court infer that the residual beneficiary acted in an inappropriate manner when she attended at Mr. Devlin’s home and disposed of his medications in 2018. There is no evidence of this. [ 99 ] There is however evidence in the proceeding that Ms. Summerfield proceeded to act as if a grant of probate had occurred with her appointed as the administrator.

There is a concern that the subject matter of the estate may be dissipated entirely, pending the determination of the proof in solemn form. [ 100 ] The Court will provide a copy of this decision to the Public Trustee concerning the disposition of this matter, so that it may undertake further steps in administering Mr. Devlin’s estate. Rowe, J.