WENDY RICHARDSON APPLICANT - v. -, 2018 SKQB 201

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2018 SKQB 201 Date: 201 8 07 16 Docket: SUR 585 of 2014 Judicial Centre: Regina BETWEEN: WENDY RICHARDSON APPLICANT - and - BARRY HOOKER, EXECUTOR OF THE ESTATE OF ADA FLORENCE HOOKER RESPONDENT Counsel: Timothy Stodalka for the applicant James Garden for the respondent JUDGMENT BARRINGTON-FOOTE J. JULY 16, 2018 [ 1 ] On September 14, 2014, probate was granted for a will executed by Ada Florence Hooker [testatrix] on October 17, 2008 [October 2008 will]. The applicant Wendy Richardson is a daughter of the testatrix. The respondent executor, Barry Hooker, is a son.

Both are residuary beneficiaries under the October 2008 will. The applicant has challenged the validity of the October 2008 will and applied for the following relief: 1. An order pursuant to Rule 16-47 of The Queen’s Bench Rules revoking the letters probate; 2. Further, or in the alternative, an order pursuant to Rule 16-46 requiring that the October 2008 will be proved in solemn form; and 3.

Further or in the alternative, an order directing a trial with respect to the validity of the testatrix’s wills dated June 2, 2003 [2003 will] and July 4, 2006 [2006 will]. [ 2 ] For the reasons that follow, the application is denied.

I. BACKGROUND 1. The Wills and the Ada Hooker Estate [ 3 ] The applicant and respondent are two of the nine children of the testatrix. There is evidence the testatrix executed five wills between 2003 and 2008. The applicant says the 2003 will is valid, but that the testatrix lacked testamentary capacity when she executed the 2006 will and October 2008 wills. Her application does not seek relief in relation to wills executed in January and August 2008. [ 4 ] The various wills made significant changes as to the extent to which the testatrix’s children would share in her estate.

Some of the children, including the applicant and the respondent, fell in and out of favour. In brief, they provided as follows: • October 2008 will : $500 to Mark Hooker, nothing to her sons Paul Hooker and Darin Hooker, and the residue divided equally between her six other children. The respondent was appointed as the sole executor, and the testatrix’s daughter, Sandra Wiseman, as alternate. • August 6, 2008 [August 2008 will] : $500 to Mark, nothing to the applicant or her son Darin, and the residue divided equally between her other children.

Paul and the respondent were appointed as joint executors. • January 11, 2008 [January 2008 will] : The draft of the will, and handwritten instructions, indicate this will left $500 to Mark, specific bequests to six of her children, the residue to Barry, and nothing to the applicant or her son Darin “because of the grief they have caused the family over the years”. It appears Paul and the respondent were named as co-executors. • 2006 will : $20,000 to the applicant, $2500 to five other children of the testatrix, nothing to Darin and the respondent, and the residue to Paul.

Paul was named as executor, and the applicant as the alternate. • 2003 will : The applicant deposed that this will mirrored a will executed by the testatrix’s husband, which left $10,000 to Paul, $500 to each of five other children of the testatrix, nothing to Darin and the respondent, and the residue to the applicant. The husband’s will named the testatrix as executrix, and the applicant as the alternate. [ 5 ] There is correspondence from applicant’s counsel which says there was a will prepared in 2007 which named Paul Hooker as executor. The respondent’s evidence also refers to a 2007 will.

However, the affidavit of Lisa Horvath, the lawyer who prepared all of the 2008 wills, says the testatrix gave her instructions December 28, 2007 to prepare the January 2008 will. It appears likely that is the document described as a 2007 will. [ 6 ] The affidavits address the relationship between the testatrix, the applicant, the respondent, Sandra Wiseman, and other children of the testatrix. They describe family conflict, allegations of theft from the testatrix, periods of estrangement, and an apparent competition for the favour of the testatrix in the last years of her life.

Some of those allegations conflict. The applicant deposed as follows: • From 1980 until November 2008, she and her brother, Paul, looked after their parents, including medical appointments, shopping and other aspects of their day-to-day living. • Her brother, Mark, has Downs Syndrome. She took over his care from her parents in 1995. He continues to live in her group home. • There was a great deal of conflict between the respondent and her parents for an extended period. They did not speak from the early 1980’s to 2005. They spoke just before her father’s death in January 2006.

The respondent and the testatrix had a dispute after the funeral, and they had again had no contact until July 2007. • Her brother Darin stole $11,000 from her parents in 1999. • The testatrix and her husband lived with the applicant from July 2005 to July 2007. She lived with Paul from July 2007 to October 2008, and then with Sandra.

The testatrix said she moved because the respondent and Sandra told her Paul and the applicant were stealing from her. • From October 2008 to November 21, 2008, the testatrix lived with the applicant. [ 7 ] The respondent deposed as follows: • Paul Hooker admitted he stole $4,000 from the testatrix. As a result, the testatrix replaced Paul with the respondent as her power of attorney on October 6, 2008. • The respondent and his parents did not speak from 1995 to May 2004. He visited them weekly after that. • In July 2007, the applicant and the testatrix had a bad argument.

As a result, the testatrix moved to live with Paul, and the testatrix and applicant did not speak for months. • In October 2008, the testatrix reported to Ms. Wiseman that Paul stole from her and hit her. As a result, the testatrix moved in with Ms. Wiseman. A week later, the applicant took the testatrix on a day trip, and refused to return her for six weeks. She then returned the testatrix to Sandra’s residence and said she could keep her. • He did not tell the testatrix the applicant was stealing from her. Paul told the respondent and his wife the applicant was stealing, and showed them cancelled cheques.

[ 8 ] The testatrix, who lived in the Santa Maria Nursing Home from not later than June 2009, died November 1, 2013. On November 13, 2013, applicant’s counsel advised respondent’s counsel it was the applicant’s position the testatrix lacked capacity to execute the 2008 will, and that the 2003 will was the only valid will. In response, respondent’s counsel sought to resolve the issue. He forwarded documents to applicant’s counsel, including the complete file of Lisa Horvath, who prepared and witnessed the October 2008 will.

He wrote several letters to counsel for the applicant in an attempt to initiate settlement discussions. The final letter, dated May 26, 2014, said that in the absence of a response by June 30, 2014, respondent’s counsel would recommend that his client apply for probate. [ 9 ] Counsel for the applicant did not respond. In the result, the respondent applied for probate on August 25, 2014. He gathered in the assets of the estate, and paid debts, taxes, and accounting and legal fees. The net assets were $105,851.41.

Each of the six residuary beneficiaries was entitled to a distribution of $17,558.57 under the October 2008 will. [ 10 ] Counsel for the respondent, as estate counsel, first offered to distribute those funds August 19, 2015. He asked all beneficiaries to provide releases, in order to dispense with the passing of accounts. All beneficiaries other than the applicant provided releases, and were paid their shares. The applicant failed to respond to repeated requests to do so, and did not cash cheques that were sent to her for her share. Estate counsel finally sent the funds remaining in the estate to the respondent.

On April 19, 2017, the respondent advised the applicant he was holding her funds and that she should contact him to receive payment. [ 11 ] The applicant responded by filing this application on August 25, 2017.

In her November 14, 2017 rebuttal affidavit, she deposed that she never changed her position that the will was invalid, and offered the following explanation for her earlier failures to respond: 7. [14] Further, or in the alternative, I understood that as I was a beneficiary, it was necessary for me to either sign a consent to the proposed distribution by the [e]xecutor and/or the Executor formally passed his accounts before the estate was fully administered.

I never consented to Barry Hooker’s administration of his accounts. [ 12 ] This statement is consistent with the position taken by counsel for the applicant on this application. He argued that the respondent could have resolved the dispute relating to the capacity of the testatrix by passing his accounts pursuant to Rule 16-49. With respect, I agree with respondent’s counsel that the passing of accounts is not the proper forum to challenge the validity of a will. 2.

Evidence of Testamentary Capacity [ 13 ] The applicant says the testatrix suffered from dementia after 2005, and lacked testamentary capacity when she signed the 2006 will and the October 2008 will. In a November 4, 2009 affidavit, she deposed that she was advised in September 2007 and November 2008 by the testatrix’s long-time family doctor, Dr. Surtie, that the testatrix was suffering from dementia.

She says she observed the following examples of the testatrix’s “medical state” after the testatrix’s husband died in January 2006: - the testatrix was unable to prepare meals or make tea, and last cooked a meal in early 2006; - the testatrix could not understand that her husband, a war veteran, had died, and was convinced he was away at war; - the testatrix was upset her mother did not contact her; - the testatrix wandered from Paul’s place and needed close supervision; - the testatrix had to wear adult diapers, which the applicant found in the fridge; and - when Dr.

Surtie asked the testatrix the names of her children in November 2008, she could remember only two. [ 14 ] The applicant also filed medical records relating to the testatrix’s stay at the Pasqua Hospital from December 31, 2008 to April 9, 2009. Those records include a Discharge

Summary prepared by Dr. Surtie which states as follows: HISTORY OF PRESENT ILLNESS : Ada Hooker is an 82-year-old female patient who was admitted on December 31, 2008 with a history of progressive cognitive decline, aggressiveness, and paranoia. PAST MEDICAL HISTORY : … 3) Dementia … ON EXAMINATION: … She was disoriented for time, place and person. … INVESTIGATIONS/COURSE IN HOSPITAL : The patient was admitted for placement as the family could not generally deal with her issues. … The patient was kept on the ward on the observation and treatment. SWADD was consulted for discharge to long-term care….

The son and daughter eventually returned the mother back today [sic] to home, and the patient was discharged on April 9, 2009. I have since seen the patient at the clinic, and she is quite stable. [ 15 ] The medical records also include the results of a “Mini-Mental State Examination” dated January 2, 2009. The examination asked simple questions and that the patient complete simple tasks, such as writing a sentence and copying a geometric

figure. The testatrix scored 12 of 30 points. She was, for example, unable to identify the year, season, day, date, month or province, orthat she was at a hospital. She was unable to read and obey the direction “close your eyes”. She scored 15 of 30 on the same test onJanuary 30 and March 27, and was again unable to identify the year, season, date, location and similar facts. [16] The records also include the results of a “Montréal Cognitive Assessment” dated January 30, 2009. That assessmentincluded simple cognitive tasks relating to matters such as memory, visuospatial ability and concentration. The testatrix scored 5 of 30points. There is no evidence as to the

interpretation or significance of this or the other test results. [17] Further, the records include notes by unidentified staff and by Dr. Surtie relating to the testatrix’s initial and ongoingassessments, behaviour and treatment. On January 9, for example, Dr. Surtie noted the testatrix was hallucinating. Therapy service notesdated January 2, 2009 record that the family described “significant deterioration in cognitive status over the past couple of months”. AJanuary 7, 2009 entry says the testatrix was confused, and had difficulty following a conversation.

There are staff notes which describebehaviour consistent with cognitive or mental health issues, including confusion, aggressiveness, paranoia, agitation and depression.There are also notes prepared by staff and Dr. Surtie which describe calm and cooperative behaviour. [18] As noted above, the testatrix executed a power of attorney October 6, 2008 in favour of the respondent. The applicantcommenced an action challenging that power of attorney based on the testatrix’s alleged incapacity.

In the course of that action, therespondent agreed to an order directing the trial of an issue with respect to the validity of the power of attorney and appointing the PublicGuardian and Trustee of Saskatchewan to manage the testatrix’s financial affairs in the interim. The applicant takes the position therespondent’s agreement constituted an admission there were issues as to the testatrix’s capacity. The respondent disagrees, and deposedthat he made that agreement on the advice of counsel that an interim order would likely be made and out of concern over legal costs.

Asit happened, that trial did not proceed, as the testatrix was declared incompetent April 21, 2011. In the result, the Public Guardian andTrustee assumed management of her financial affairs until her death. [19] The respondent denies the testatrix was incompetent when she executed the October 6, 2008 power of attorney and theOctober 2008 will. He deposed that the testatrix’s lawyer, Lisa Horvath, was satisfied she had the capacity to execute a power ofattorney. There is a July 23, 2009 letter in which Ms.

Horvath states an opinion to that effect. [20] The respondent denies some of the applicant’s specific allegations noted the testatrix’s behaviour. He says the testatrixknew her husband’s grave, did not wander away from Paul’s house, and told the nurses the names of all nine of her children severaltimes after she was hospitalized. The respondent does not deny the testatrix had cognitive issues. He says the testatrix’s mental conditiondeteriorated, and that by May 2011 she was “mentally incapacitated”. [21] Lisa Horvath was called to the bar in 2004.

She deposed that one of her preferred areas of practice is wills, estates andestate planning. Her affidavit says that she met with the testatrix on a number of occasions in 2007 and 2008 to prepare and update herwill and power of attorney. It says that on each occasion, the testatrix was able to name each of her children and provide specificinstructions as to the distribution of her estate. [22] It is Ms. Horvath’s opinion that the testatrix’s mental capacity did not diminish throughout her attendances in 2007 and2008. She found the testatrix coherent, and believed she had the capacity to sign the documents Ms.

Horvath was asked to prepare. Ms.Horvath’s affidavit briefly describes her various attendances with the testatrix. In particular, it describes their October 17, 2008 meetingwith the testatrix to confirm instructions for the October 2008 will. She deposed that the testatrix instructed her to remove Paul Hooker asa beneficiary and co-executor because he took money from her, and to add the applicant as an equal residuary beneficiary as she and thetestatrix were visiting again. II.

Law: Challenging a Will for Incapacity [23] This application falls to be determined in accordance with the two-part test described by Baynton J. in Dieno Estate vDieno Estate (1996), (SK KB), 147 Sask R 14 (QB) [Dieno]: 27 An application in Saskatchewan to challenge a will on the basis of testamentary incapacity potentially involves two levels ofhearings. The first is a chambers hearing to determine if there is sufficient merit in the challenge to warrant a trial. The second (if theapplicant is successful) is a trial hearing to determine the issue itself. The issue before the court at either level is the same.

The maindifference is the scope of the hearing, the ability to determine credibility respecting contradictory evidence, and the relief that is granted.The chambers judge decides if there will be a trial, the trial judge decides if the testator had testamentary capacity. In order to decidewhether a trial is warranted, the chambers judge must summarily consider the evidence that tends to negate testamentary capacity alongwith the evidence which tends to affirm testamentary capacity. There is more involved than simply ascertaining if there is some evidenceadduced by the applicant that tends to negate capacity.

Evidence adduced by the proponents of the will must also be considered. [24] In Royal Trust Corporation of Canada v Ritchie, 2007 SKCA 64, 293 Sask R 238 [Ritchie], Gerwing J.A. cited thispassage with approval, and commented (at para. 5) that the test is whether there is a genuine issue to be tried. She rejected thecharacterization of the threshold at the first hearing as “reasonably low”, and described the standard of proof as follows: 6 …If a real question, based on probative evidence going to issues material to capacity, is raised, the will should be proved in solemnform.

However it is not every suggestion of irregularity or evidence on peripheral points which will lead a chamber judge to concludethat there is a sufficient issue for proof in solemn form. Proof in solemn form is a lengthy and expensive process and should not beentered into without sufficient foundation. Otherwise a substantial portion of the estate is at risk of being frittered away in pointlesslitigation. 7 Having said that, the commentary on the law in the balance of the judgment in Dieno is still material.

Whatever one may say aboutthe standard there proposed, or the need to use it, the second portion of the Dieno test clearly envisages a situation where no one can saya reasonable issue or question exists to be tried. At para. 32 of Dieno Baynton J. said: [32] If on the other hand the applicant fails to adduce or point to some evidence which if accepted at trial would tend to negative

testamentary capacity, or if the propounder of the will by uncontradicted evidence successfully answers the challenge and affirmspositively the testamentary capacity of its maker, then the application should be dismissed and the grant of probate of the will remains infull force and effect. A final disposition of the application is a realistic option for the chambers judge in most cases in that usually it isnot the evidence itself which is in dispute but rather the inferences of fact to be drawn from the evidence adduced.

But wherecontradictory evidence is adduced, especially where findings of credibility will have to be made, the only realistic option for thechambers judge is to direct a trial. The evidence adduced and the submissions made at the chambers hearing however, will expedite thetrial to be ordered by narrowing the focus of the issues in dispute. [Emphasis added (in original)] [25] Two points bear emphasis. The issue at the first stage is whether there is, as Baynton J. put the matter, evidence that “ifaccepted at trial would tend to negative testamentary capacity”.

However, the fact there is some evidence of that kind does notnecessarily call for a trial. [26] In Vout v Hay, (SCC), [1995] 2 SCR 876, the court held that evidence of suspicious circumstances,such as evidence that tends to call testamentary capacity into question, shifts the evidentiary burden to the proponents: see Bachman vScheidt, 2016 SKQB 102, [2016] 11 WWR 380, aff’d 2016 SKCA 150 at para 8, [2017] 2 WWR 301 [Bachman]; and Dieno, at para 35.As Baynton J. commented in Dieno, at para. 35: 35 …The evidence tendered by the propounder however must be scrutinized in accordance with the gravity of the suspicion.

Theextent of the proof required is proportionate to the gravity of the suspicion, and the degree of suspicion varies with the circumstances ofeach case…. The application will not be referred to trial if the respondent meets the evidentiary burden by leading uncontradicted evidence that“affirms positively the testamentary capacity of its maker”. Ritchie illustrates the meaning of “uncontradicted evidence” in this context. The will there at issue was executed in 1996. The testatorwas first diagnosed with dementia in 1989. There was evidence from his children of changes in his behaviour as early as 1990.

Thatevidence included a single brief and ambiguous reference to his perceived condition in 1996, the year the will was executed. GerwingJ.A. emphasized that a person with dementia may be able to make a will, commenting as follows: 11 The problem with the affidavits put forward by the challengers, in addition to their lack of temporal coincidence with the materialperiod, is that they dwell on instances of forgetfulness, short-term memory problems, losing objects and emotion under stress.

None ofthese, if exhibited at other times, precludes a testator from having, at material times, the capacity to enter into a will. 12 The critical points for having testamentary capacity are understanding the nature of the document, the extent of property to bedisposed of, and claims to which the testator should give effect. This knowledge can exist despite the testator's problems.

It is clear fromthe medical affidavit that his diagnosis of dementia in 1989 was one of slow progress and according to his physician did not lead to apoint where he lacked competency to make a will until 1998…. [27] There, as here, the proponent did not deny the testator was deteriorating as a result of dementia. There was evidencefrom the testator’s widow that he was generally rational, but had difficulties when he faced certain new or stressful situations.

There werealso detailed affidavits from the testator’s long time physician, and from an experienced lawyer who had known the testator for years,and took his instructions for the will. Those affidavits specifically addressed his capacity shortly before and at the time he executed thewill. Gerwing J.A. described these as the “most critical affidavits”, and (at para. 17) as “uncontradicted evidence of testamentary capacityat material times”.

She concluded as follows: 20 As noted above, in my view, the affidavits of the children, including the exhibits to Russell's affidavit, merely refer to incidents ofshort-term memory loss, losing objects and stress in emotional circumstances which are consistent with the general condition of dementiareferred to in Dr. Balaton's affidavit. They do not speak to the critical point of testamentary capacity or to the relevant time.

Accordingly,I am of the view that the chamber judge was correct in concluding that there was uncontradicted evidence of testamentary capacity suchthat proof of the will in solemn form should not be ordered. Accepting the test that the matter to be determined by the chamber judge iswhether there is a genuine issue to be tried, the evidence in this case more than meets the test and leads to the conclusion that there is notsuch an issue to be tried disclosed in the material filed before this chamber judge. [28] This reasoning demonstrates that evidence of dementia and cognitive decline is not enough.

The important question isthe extent to which the evidence tends to prove the impact of the testator’s mental health or cognitive issues on the abilities that make uptestamentary capacity, at the relevant time. The elements of testamentary capacity were described by Laskin J.A. (dissenting) inSchwartz v Schwartz (1970), (ON CA), 10 DLR (3d) 15 (Ont CA), at 32 [aff'd (1971), [1972] SCR 150]: ...

The testator must be sufficiently clear in his understanding and memory to know, on his own, and in a general way (1) the nature andextent of his property, (2) the persons who are the natural objects of his bounty and (3) the testamentary provisions he is making; and hemust, moreover, be capable of (4) appreciating these factors in relation to each other, and (5) forming an orderly desire as to thedisposition of his property... [29] This test had been repeatedly affirmed in Saskatchewan, including by the Court of Appeal in Otto v Kapicila Estate,2010 SKCA 85 and in Bachman. [30] Bachman demonstrates similar reasoning to Ritchie.

There, the testator also suffered from progressive dementia foryears before he executed his will. There was evidence of progressive and long term deterioration in his memory and ability to focus. AsMills J. commented: 49 …The important issue is not what the diagnosis is, but what does the diagnosis mean in the terms of the testamentary capacity of theindividual. A diagnosis of Alzheimer's in the abstract without reference to cognitive functionality cannot result in the conclusion thatthere is a genuine issue to be tried in relation to capacity. …

[ 31 ] He noted that while the court will consider evidence of personal observations by family or friends, the applicant affiant did not have direct contact with the testator around the time the will was made. He emphasized medical evidence which, among other things, said the testator remained independent in all activities of daily living shortly after the will was executed.

He also emphasized the detailed evidence of the experienced lawyer who provided the advice relating to the will. [ 32 ] I also note the reasoning in Re deBalinhard Estate , 2014 SKQB 162 , 447 Sask R 172 [ deBalinhard ] and Kyrylchuk v Cox , 2017 SKQB 353 . In both cases, the court found the evidence of undoubted substance abuse and cognitive issues did not tend to demonstrate the testator lacked testamentary capacity at the time the will was made. In both cases, the court appeared to place significant weight on the evidence of the lawyers who prepared and met with the testator to have the wills executed. III.

Analysis [ 33 ] It is clear the testatrix was suffering from dementia when she gave instructions for the preparation of the October 2008 will. Indeed, there is uncontradicted evidence from the applicant she could not prepare meals or brew tea by 2006. The medical records strongly support the conclusion that by late December 2008, the testatrix suffered from significant cognitive problems as a result of her disease. [ 34 ] Respondent’s counsel submitted that the medical records must be used with great care, as there is no evidence relating to their

interpretation. I have approached those records accordingly. I note, however, that the testatrix’s test results on January 2, January 30, and March 27, 2009 support the common sense conclusion that her admitted dementia had by then resulted in very significant cognitive problems. The testatrix was, after all, unable to identify matters such as the season, city, and building in which she was located, to recognize a simple drawing of a rhinoceros, or to draw a clock.

Further, many of the staff notes are plain language reports of the testatrix’s behaviour which support the same conclusion. [ 35 ] This evidence supports the conclusion that the testatrix’s symptoms were sufficiently severe by the time she was admitted to hospital that they would, at least some of the time, impact her memory and understanding so as to negative testamentary capacity.

It also suggests that by that time, her more severe symptoms, while variable, occurred more frequently than those exhibited by testators in cases such as deBalinhard or Ritchie. [ 36 ] The issue with the medical records is that they do not describe the testatrix’s behaviour close in time to October 17, 2008, being the date of the October 2008 will, but during a period which began ten weeks later. The applicant’s evidence does little to fill that evidentiary void. The testatrix stayed with the applicant from October 2008 to November 21, 2008.

However, the applicant – with one exception – did not identify behaviour during that period which might signal significant cognitive difficulties. The one exception was her evidence the testatrix could only tell her doctor the names of two of her nine children on an unspecified date in November 2008. [ 37 ] Further, the applicant’s evidence of other specific behaviour by the testatrix that might signal cognitive difficulties – again with one exception – did not describe when or how often most of that behaviour occurred. She deposed the testatrix could no longer cook or brew tea in 2006.

She did not specify other dates. [ 38 ] There is also evidence from the respondent that is inconsistent with or may explain some of the applicant’s evidence as to the testatrix’s behaviour. He denies the testatrix wandered away from Paul’s home, and instead says she sought out company when left alone. He says that she recognized her husband’s grave and was able to name all of her nine children on several occasions after she was hospitalized. Although I cannot resolve conflicts in the evidence at this stage, I can take this evidence into account. [ 39 ] That leaves the evidence of Ms. Horvath.

That evidence, like the evidence of the applicant, could have been more detailed. Nonetheless, it is clear and unambiguous. Ms. Horvath dealt with the testatrix several times in 2007 and 2008. She deposed that she saw no deterioration in her condition. It is her evidence the testatrix was able to name each of her children every time they met. [ 40 ] Ms. Horvath described her October 17, 2008 meeting with the testatrix in slightly greater detail. In particular, she says the testatrix explained why she decided to make the changes relating to Paul and the applicant reflected in the October 2008 will.

The explanation described by Ms. Horvath is consistent with the evidence relating to the conflicted and changing relationship between the testatrix and some of her children. As such, the fact the testatrix made those changes does not tend to negate testamentary capacity. The testatrix also confirmed that the remainder of her will should remain as it was, including the exclusion of Darin and Paul. Both of those exclusions are also consistent with the evidence as to what the testatrix believed they had done to her. [ 41 ] The evidence tendered by the applicant is sufficient to demonstrate suspicious circumstances.

I must accordingly consider both the evidence that tends to negate testamentary capacity and that which tends to affirm it. Having done so, I conclude that the respondent has – in the language of Dieno – successfully answered the challenge and positively affirmed the testamentary capacity of the testatrix by uncontradicted evidence.

The evidence supports the conclusion the testatrix had a progressive disease, and that she – like the testators in Bachman and Ritchie – struggled with certain tasks and in certain situations at the time she made the October 2008 will, and then entered a period of rapid decline. [ 42 ] This conclusion is consistent with the note in the medical records that the “family note significant deterioration in cognitive status over the past couple of months”, and with the respondent’s description of the testatrix’s continuing decline.

It is also consistent with the fact that it was only in late December 2008 that the family had the testatrix institutionalized. [ 43 ] Further, it is consistent with Ms. Horvath’s evidence. Her evidence, read in the context of the evidence as a whole, constitutes uncontradicted evidence that the testatrix had testamentary capacity when she made the October 2008 will. It is the only evidence that relates directly to the events of October 16 and 17, 2008.

While it is somewhat lacking in detail, it is sufficient to dispose of this application given the nature and extent of the evidence of suspicious circumstances. [ 44 ] I would finally note that even if I had decided that the October 2008 will should be proved in solemn form, there was insufficient evidence to demonstrate suspicious circumstances in relation to the January 2008 will or the August 2008 will. Accordingly, if the October 2008 will was found to be invalid, it is likely the applicant would have received nothing, as the other 2008 wills cut her

out entirely. Although I did not take account of that fact in reaching this decision, it may assist the applicant to understand the impact of this decision on her. IV. CONCLUSION [ 45 ] This conclusion is sufficient to dispose of the application. For these reasons, the application is denied, with costs to the respondent. J. B. A. BARRINGTON-FOOTE