Wilson v Wilson Estate, 2023 ABKB 655

Court of King’s Bench of Alberta Citation: Wilson v Wilson Estate, 2023 ABKB 655 Date: 20231121 Docket: SES06 19870 and SES06 19631 Registry: Lethbridge In the Matter of Wilson v Wilson Estate Between: Christine Elizabeth Wilson Applicant - and - Estate of Rita Joan Marie Wilson Also Known As Rita Marie Joan Wilson, Rita Marie Wilson, Reta Marie Wilson, Rita Wilson, Troy Kenneth Wilson, Tyler Wilson and Jason Wilson Respondents _______________________________________________________ Memorandum of Decision of the Honourable Justice D.V. Hartigan _______________________________________________________

[ 1 ] This matter involves the interplay between two estates. BACKGROUND [ 2 ] Rita Marie Joan Wilson (“Rita”) passed away on September 10, 2021. Having been predeceased by her spouse, Rita’s Last Will and Testament left the residue of her estate to her children in equal shares. There was a survivorship clause in Rita’s Will which stated: “The gift or share to which any beneficiary may be entitled is subject to the condition that the beneficiary shall survive me for fourteen (14) days.” [ 3 ] Gerald Alfred Wilson (“Gerald”) was Rita’s son.

He died approximately two weeks after Rita. [ 4 ] Christine Elizabeth Wilson (“Christine”) is Gerald’s widow. While Christine and Gerald have been separated for many years, they never divorced. Christine is the Applicant in this matter and the personal representative of Gerald’s estate. She received a Grant of Probate with respect to a document that purports to be Gerald’s Last Will and Testament. Christine is the beneficiary of the residue of Gerald’s estate according to that purported will.

As such, she seeks to be declared the beneficiary of Gerald’s share of Rita’s estate. [ 5 ] The Respondents are Gerald’s sons from prior relationships. They question the validity of Gerald’s will. They also question whether Gerald survived his mother long enough for his estate to receive his share of Rita’s estate. ISSUES [ 6 ] There are three issues to be determined in this case:

(1) Did Gerald live long enough after his mother’s death for his estate to receive a share of Rita’s estate?

(2) Are there sufficient suspicious circumstances surrounding Gerald’s purported will such that it can no longer be presumed valid?

(3) If so, has Christine established that the purported will is indeed valid? Did Gerald survive Rita for fourteen (14) days? [ 7 ] The Respondents’ position is that Gerald did not survive his mother for the requisite fourteen (14) days and therefore his estate should not receive his share of the residue of Rita’s estate. [ 8 ] Gerald was found dead in the kitchen of his rented home in Lethbridge, Alberta, on the morning of Saturday, September 25, 2021, by his roommate. Emergency medical personnel attended and despite efforts to resuscitate him, Gerald could not be revived.

The Respondents argue that Gerald could have died the previous night, September 24, 2023. They suggest adverse inferences can be drawn against the Applicant for the following reasons:

(1) The Applicant did not call the roommate, who discovered Gerald’s body, as a witness insofar as that witness could shed some light on whether he may have died the previous night;

(2) The Applicant did not call the emergency medical personnel who attended at the scene; and

(3) The Applicant led no medical evidence in relation to the time of death. [ 9 ] I do not find these arguments compelling. With respect to the roommate, there is nothing in evidence before me to suggest that that person has any training or expertise such that they would be in a position to provide helpful evidence as to whether Gerald died the morning of his discovery or sometime previous. Nor is there an adverse inference to be drawn on the alleged failure of the Applicant to call the emergency medical personnel who attended at Gerald’s home on the day he was discovered.

Their notes, which were entered as an exhibit in these proceeding, on their face contain no information that would suggest a date of death other than September 25 th . The Respondents note that the ambulance records do not contain any information regarding rigor mortis nor liver mortis . What I am to draw from is unclear. In their brief, the Respondents mention a Google search done about the timing and duration of rigor mortis . They do not advise what conclusion are to be drawn, either by the ambulance personnel or the Court, from this information.

As to the assertion that the Applicant has failed to lead any medical evidence that might establish the time of Gerald’s death, this assertion is not entirely correct. [ 10 ] In evidence is the Certificate of the Medical Examiner and the confidential autopsy report completed by the medical examiner. Both records clearly state a date of death of September 25, 2021. Nothing in the autopsy report suggests that the date of death indicated therein was in any way in question.

The Respondents submit that I cannot rely on the medical examiner’s date of death (nor, for that matter, the Alberta Certificate of Death and the funeral director’s Statement of Death, which also show a date of death of September 25 th ). They submit “It is likely the authors of those three documents used the date Gerry was found as his date of death

without further investigation.” Such a suggestion or allegation is purely speculative. There is no evidence that the authors of thosedocuments, and in particular, the medical examiner, made any such assumption. [11] The only evidence I have before me from a medical practitioner, who examined Gerald’s body post mortem, is that of themedical examiner. The medical examiner puts Gerald’s date of death at September 25, 2021. Nothing else in the evidence would lead meto question that conclusion.

I therefore find on a balance of probabilities that Gerald Alfred Wilson died on September 25, 2021 in theCity of Lethbridge, Alberta. [12] Given that finding, I need not proceed to an interpretive analysis of the fourteen (14) day clause of Rita’s will. Whether oneuses a “clear days” approach or any other

interpretation of the clause, Gerald survived his mother long enough to allow her gift to pass tohis estate. Are there sufficient suspicious circumstances surrounding Gerald’s purposed will,such that it could no longer be presumed valid? [13] The Respondents assert that the evidence shows suspicious circumstances surrounding the creation and the execution ofGerald’s will. In particular, they point to the following:

(1) Evidence that Gerald told others that he did not have a will.

(2) Evidence that prior to his death Gerald removed Christine as a beneficiary of his life insurance policy.

(3) Concerns raised by an expert forensic document examiner in relation to handwriting and other properties of the purported will. [14] The leading authority on suspicious circumstances in the context of wills is Vout v Hay (SCC), [1995] 2S.C.R. 876 (“Vout”). That case establishes the following principles: - The propounder of a will has the burden to establish due execution, knowledge and the approval, and testamentary capacity. - Notwithstanding that burden, the propounder is aided by a rebuttable presumption.

Upon proof that the will was duly executedwith the requisite formalities, it will generally be presumed that the testator knew and approved of the contents and had the necessarytestamentary capacity. - In the presence of suspicious circumstances, the above presumption no longer applies, and the proponent of the will reassumes thelegal burden of proving knowledge and approval. (Similarly with respect to suspicious circumstances surrounding testamentary capacity;however, that is not an issue in this case.) - With respect to allegations of fraud or undue influence, the burden of proof on a balance of probabilities lies with those attackingthe will. (Vout, pages 889 – 890) [15] Given that framework, I will examine the alleged suspicious circumstances in this case. (

i) Gerald claims he did not have a will [16] On two occasions Gerald told individuals he did not have a will. Both of these conversations took place long after December3, 2005, the date of the alleged will in issue. [17] Gerald told Steven Osmond, a solicitor, that he did not have a will during a conversation about another legal matter. Mr.Osmond was not Gerald’s lawyer at the time and the issue arose in the context of general questions to a potential client. [18] Gerald also told his son, Troy Wilson, that he did not have a will. Mr.

Wilson is one of the Respondents in this matter. [19] The Respondents suggest that these assertions by Gerald would lead to or contribute to an inference that Gerald either did notexecute the will at issue or that he subsequently revoked the same. I find that I am unable to draw those inferences. [20] With respect to any inference of revocation,

section 23 of the Wills and Succession Act, SA 2020, sets out the requirements for revoking a will. There is no evidence before the court of Gerald taking any such steps in relation to the December 3rd will. Furthermore,“Orally expressing a desire to revoke a will without taking any of the actions required by the legislation is no sufficient to revoke anotherwise valid will.” (McLean Estate, Re, (SK SU), cited in Meunier Estate, 2022 ABQB 83). [21] Gerald’s representations to his son and Mr.

Osmond are equally consistent with Gerald having forgotten about the will.However, forgetting about an otherwise valid will does not equate to revocation of same. (Tessier v Ware 2000 CarswellOnt 2632(OSCJ) at paras 81 and 82) (ii) Change of insurance policy beneficiary

[ 22 ] Prior to his death, Gerald replaced Christine as the beneficiary of his life insurance policy with his son, Trevor Wilson. The Respondents submit that this action on Gerald’s part demonstrates that he did not want Christine to benefit from his estate. [ 23 ] Respectfully, such an inference would be a stretch. The change to the beneficiary is equally consistent with Gerald wanting to provide something for his son as well as Christine in the event of his death.

The fact that he was capable of executing the change of beneficiary in the insurance policy suggests he would have been equally capable of amending his prior will or creating a new one. (iii) Expert evidence regarding the December 3, 2005 will. [ 24 ] The Respondents called Mr. Leslie L. Peace, BA, a forensic document examiner. Mr. Peace was qualified, without objections to give expert testimony as a forensic document examiner with expertise in the examination and comparison of documents, including handwriting and the creation, history, and production of documents. Mr.

Peace conducted a thorough examination of Gerald’s alleged will of December 3, 2005. Mr. Peace noted a number of concerns with respect to the document.

Those concerns include the following: • While the “Jerry Wilson” signature would appear to be Gerald’s, he could not say the same about the “Jerry Wilson” signatures on pages 2, 3 and 4. • A different pen was used to create the page 1 signature than that used on the other three pages. • Page 1 of the will demonstrated differences in storage and handling than the other three pages. • The stapling/disassembly history of the pages does not appear consistent. • There were differences between the pages regarding printing inks and toners. • The print margins with respect to page 4 are skewed as compared to pages 1, 2 and 3. [ 25 ] As a result of the examination above, Mr.

Peace was able to make the following conclusion: “Although the testator’s signature on page 1 is very likely genuine, the pattern of minor and significant inconsistencies in paper, inks, prink quality, indentation patterns, print formatting, signatures and staple punctures, have established that the disputed will, in its present form, is probably a composite document comprised of various pages from different iterations of one or more machine printed documents alleged to be Mr. Wilson’s will.” [ 26 ] The applicant did not present any expert evidence contrary to Mr. Peace’s. In general therefore, I accept Mr.

Peace’s evidence. I am therefore satisfied that that evidence is evidence of suspicious circumstances sufficient to rebut a presumption of Gerald’s knowledge of the contents of the will (again, testamentary capacity is not at issue). As a result, the Applicant reassumes the legal burden of proving Gerald’s knowledge and approval of the contents of the will. Has the Applicant established that the purported will is indeed valid? [ 27 ] Christine testified as to the creation of the will. At the time, she and Gerald were still living together.

They were living in Blairmore, Alberta. [ 28 ] She testified she created the will on a Dell computer, which she no longer possesses. She stated at the time she was having numerous difficulties with her printer. She would often have to reprint specific pages of documents she created when there were printer or other errors on those pages. She reprinted individual pages rather than reprinting the entire document. [ 29 ] He stated that on the day the will was executed, she invited her neighbours over to be witnesses to the will.

Those witnesses where Penny and Richard Lamey. [ 30 ] She stated that she and Gerald and the Lameys were friendly neighbours; however, they did not frequently attend at one another’s homes. Most of the time their interactions were outside their homes. Gerald and Richard were closer than she and Penny, and Gerald would spend time with Richard working on projects in Richard’s garage. [ 31 ] The Lameys were invited into the Wilson’s home to witness the will.

Previously, Christine had thought the Lameys witnessed wills for both her and Gerald, although she now feels it is possible it was only Gerald’s will that was witnessed that day. She stated they sat around the kitchen table and she was in charge of passing the document among the parties to obtain the requisite signatures and initials. She stated that the will that was signed on that day by Gerald and witnessed by the Lameys is the will that she submitted for probate.

She testified that she did not alter or change the will in any way, and that the signatures and initials on the will are those of the persons they purport to be. [ 32 ] Penny Lamey testified. She stated that when she and her husband were neighbours of the Wilsons, Gerald had asked her and her husband to witness his will. She recalled “sitting around a kitchen table and going through the pages.... and initialing them.” Although she did not recall the date, she stated she knew that it was before 2008, as that was when the Lameys moved from that house. She did not recall witnessing a will for Christine.

She testified as having a specific memory of she, her husband, and Gerald signing the will contemporaneously around the kitchen table. She identified her signature and stated her husband was sitting beside her when he signed the document. She stated she witnessed no other wills for Gerald and as far as she knew, neither did her husband.

ANALYSIS [ 33 ] I must therefore consider the evidence called by the Applicant in light of the concerns raised by the expert analysis of the document. In so doing, I must assess the credibility of the witnesses. Having regard to Christine’s evidence, aside from her confusion with respect to her will being witnessed at the same time as Gerald’s, I find her story internally consistent.

I also find her descriptions of the printing processes and replacement of pages reasonable. [ 34 ] Clearly, as a potential beneficiary from Rita’s estate I must be cognisant of her interest in having the will authenticated, and while I do not find that too much turns on her confusion regarding how many wills were dealt with by the Lameys on that day, it does raise some concerns with respect to the quality of her memory. [ 35 ] However, I have no reservations with respect to the truthfulness of Penny Lamey’s testimony. Ms. Lamey does not stand to gain from the interaction of these estates.

While she and her husband were friendly with the Wilsons, their relationship was not so close that I could in any way suspect collusion on her part with Christine. Since the parties moved from Blairemore, they have had very little interaction with one another. I therefore accept her evidence and Ms. Wilson’s evidence insofar as it is corroborated by Ms. Lamey. [ 36 ] I also consider Christine and Ms. Lamey’s evidence in the context of the expert evidence as a whole. Mr. Peace testified that the initials identified by Ms. Lamey as her husband’s left markings on the pages beneath them.

That is, the initials identified as Mr. Lamey’s on page 1 made an indentation on page 2. Similarly, the initial from page 2 made an indentation on page 3, and the initial from page 3 made an indentation onto page 4. The following exchanged occurred in cross-examination: MR. RONAN: “..at least in the case of Mr. Lamey doesn’t that suggest to you it was made in a contemporaneous... one sitting? MR. PEACE: “yes.” [ 37 ] When I consider this expert evidence in conjunction with Ms.

Lamey and Christine’s recollections of the day the will was signed, and the fact that the expert does not appear to be in any doubt that the signature on page 1 of the will (which contains the gift to Christine) is indeed that of Gerald Wilson. I am satisfied on a balance of probabilities that the Applicant has established the proper execution of the will. [ 38 ] I therefore make the following findings of fact:

(1) That the December 3, 2005 will attributed to Gerald Wilson was created by Christine Wilson;

(2) That Gerald Wilson executed that will in the presence of two witnesses, Penny and Richard Lamey;

(3) That all four pages of the document were signed and initialled at one sitting; and

(4) As no issues were raised as to testamentary capacity, Gerald Wilson had the requisite knowledge and capacity to execute the will on December 3, 2005. [ 39 ] I further find that the Respondents have not established on a balance of probabilities any fraud, undue influence, or other malfeasance with respect to the creation of the will. CONCLUSION [ 40 ] In conclusion, I find (1) that Gerald Wilson survived Rita Wilson for a sufficient period of time such that his estate is a beneficiary of the estate of Rita Wilson; and (2) that Christine Wilson is the residual beneficiary of Gerald Wilson’s estate; and therefore

(3) Christine Wilson is the beneficiary of the estate of Rita Wilson pursuant to clause 5.2 of her Last Will and Testament. COSTS [ 41 ] If the parties cannot agree as to costs they may, within 60 days of receiving this judgement, arrange to have the matter of costs brought before me for an oral hearing. Heard on the 06 th day of April, 2023, the 21 st day of July 2023, and the 30 th day of August, 2023. Dated at the City of Lethbridge, Alberta this 21 st day of November, 2023.

D.V. Hartigan J.C.K.B.A. Appearances: Kevin D Ronan, MMH Lawyers LLP for the Applicant, Christine Elizabeth Wilson Greg K. Norman, Norman Law Offices for the Respondents, Troy Wilson, Tyler Wilson and Jason Wilson Steven Osmond, Stringam LLP for the Respondent, Estate of Rita Wilson