ROSE STUCKEL Applicant/Respondent - v. -, 2016 SKQB 181

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2016 SKQB 181 Date: 2016 05 19 Docket: Sur 856 of 2015 Judicial Centre: Saskatoon ___________________________________________________________________________ IN THE ESTATE OF DALE LOZINSKY, DECEASED BETWEEN: ROSE STUCKEL Applicant/Respondent - and - JASON LOZINSKY Respondent/Applicant Counsel: Candice D. Grant for the applicant/respondent, Rose Stuckel Patrick G. Ennis for the respondent/applicant, Jason Lozinsky ___________________________________________________________________________ JUDGMENT ZARZECZNY J. May 19, 2016 ___________________________________________________________________________

The Applications before the Court [ 1 ] There are two applications that are presented to the Court, the first in time continues to be the application of Ms. Rose Stuckel to be appointed as Administrator of the estate of her late spouse, Dale Lozinsky, who died June 19, 2015. Jason Lozinsky is the only child of the deceased and he filed a caveat and now an application before the Court seeking an order directing that the holograph will of the deceased, dated February 13, 2009, be proven in solemn form pursuant to Rule 16-46 of The Queen’s Bench Rules and directing issues to be tried.

These include whether the deceased had testamentary capacity and, secondly, whether the will was made under undue duress and/or the undue influence of Rose Stuckel. [ 2 ] At the commencement of the hearing of these applications, counsel for Mr. Lozinsky stipulated that his client abandoned the issue of lack of testamentary capacity and the claim of a constructive trust. The Jason Lozinsky Application [ 3 ] Mr. Lozinsky’s counsel, Mr.

Ennis, submitted that for a number of reasons related to the relationship between he and his father’s spouse, Rose Stuckel, “suspicious circumstances” existed surrounding the deceased’s preparation of his holograph will and that Rose Stuckel exerted undue duress and/or influence upon the deceased. The Rose Stuckel Application [ 4 ] Ms. Stuckel’s counsel, Ms. Grant, argued that the holograph will, which was also witnessed, reflected the true and proper intentions of the deceased and that Mr.

Lozinsky had presented no concrete or compelling circumstances in the evidence filed to support his remaining assertion that the will was prepared in “suspicious circumstances” or was the product of undue and, therefore, improper influence of Ms. Stuckel upon the deceased. She submits that the Court, if it should agree, should dismiss Mr. Lozinsky’s application and grant the Letters of Administration for which Ms. Stuckel applies. The Facts [ 5 ] As Ms.

Stuckel’s application for Letters of Administration outlined the deceased’s estate consists of some farmland, property in Saskatoon, bank accounts and cash on hand as well as some farm equipment and buildings. In addition, there was property registered and owned jointly between the deceased and Ms. Stuckel, including farmland and the Saskatoon residence in which they both lived, valued at $169,000 and $320,000 respectively. There were also insurance proceeds, with Ms. Stuckel as designated beneficiary, and an RRSP having values of $193,000 and $91,000 (see Parts I and II,

Schedule of Assets, Application for Letters of Administration). [ 6 ] The facts of this case are to be found in the numerous affidavits filed, including those of Mr. Lozinsky and Ms. Stuckel, as well as other individuals, including friends of the deceased and Mr. Lozinsky’s mother, the deceased’s first wife. Mr. Lozinsky’s first affidavit, sworn March 22, 2016, deposed that his father had promised to transfer to him his farmland when he died. He deposes that the farmland had been in the Lozinsky family for a number of generations.

He did not have much communication with his father for the last five or six years before his death because of a falling out he had with his father’s spouse, Rose Stuckel, which he deposed was his father’s common-law wife since about 2004 or 2005. He deposed that this falling out with Ms. Stuckel was in late 2008 and early 2009. It is noteworthy that the deceased’s holograph will was prepared February 16, 2009. [ 7 ] Mr. Lozinsky’s affidavit deposes to the consequences of the falling out with Ms.

Stuckel, as he saw it, which included little or no communication between he and his children (the deceased’s grandchildren) and the deceased for five or six years prior to his father’s passing. [ 8 ] James Stinson, a “lifelong friend of the deceased”, deposed that the deceased “said he wanted the farm to go to Jason.” The last time the deceased said words to this effect was about two years before he passed away. Mr. Lozinsky’s mother, Jenny Lozinsky, deposed to the same effect although no dates or times are specified. She and the deceased had apparently separated in 2001, some 14 or so years before his death.

They settled their property by a written separation agreement (as further materials would establish). [ 9 ] The second affidavit of Jason Lozinsky, sworn April 26, 2016, at paragraph 14, deposes in part: 14. … I cannot believe he would allow Rose’s name on title unless he was coerced. [ 10 ] At paragraph 15, he deposes that the deceased’s failure to use a lawyer for either of the title transfer transactions jointly registered (the house in Saskatoon and the farmland) and the preparation of his will “was out of character for him, and I believe it was the undue influence of Rose Stuckel that caused him to behave in this manner, and to her direct benefit.” [ 11 ] Numerous affidavits were filed in reply to the material relied upon and filed on behalf of Mr.

Lozinsky, including, importantly, the affidavits of Rose Stuckel and a number of acquaintances of the deceased and supporters of her position. [ 12 ] This information painted a substantially different picture from that of Mr. Lozinsky and his deponent supporters. In the first instance, it is clear that the deceased, although allegedly being an alcoholic for some part of his life, was nevertheless not drinking prior to, at the time of and for some considerable time after the preparation of the disputed will. Counsel for Mr.

Lozinsky acknowledged that position as correct and that it was the reason for abandoning the issue of testamentary capacity. [ 13 ] Secondly, Ms. Stuckel, while acknowledging that she and Mr. Lozinsky had a significant falling out and essentially became estranged in 2008/2009, nevertheless outlined efforts where the deceased, with her support and encouragement, attempted to maintain a connection with Mr. Lozinsky and, if not with him, at the very least, with his children. [ 14 ] The other supporting deponents, mostly close friends of the deceased, testified to his devotion to Ms.

Stuckel and his wish that she be cared for and well looked after if he passed away. A number of them deposed to the estrangement which existed

between Mr. Lozinsky and the deceased and their lack of contact or communication with one another even though they workedoverlapping shifts at the same employer and clearly had the opportunity to connect at those times, if at no other. A number of themdeposed to Mr. Lozinsky’s lack of involvement, care or connection with his father after the falling out that apparently occurred betweenMr. Lozinsky and Ms. Stuckel.

Issues [15] The sole remaining issue, in light of stipulation by counsel that the testamentary capacity of the deceased andconstructive trust were no longer in issue or relied upon, is whether or not there is sufficient merit in the challenge to the holograph lastwill and testament to warrant a trial respecting the proof of the will in solemn form.

Analysis [16] The procedure outlined in the case of Dieno Estate v Dieno Estate, (SK KB), [1996] 10WWR 375 (Sask QB) [Dieno Estate], is equally applicable to a challenge made to the validity of a will based upon undue influence orduress, in this case attributed to Rose Stuckel, as it is to a challenge to the validity of a will based upon the deceased’s testamentarycapacity. Dieno Estate proposed two levels of hearings – the first a chambers hearing to determine if there is sufficient merit in thechallenge to the will to warrant a trial (paragraph 27).

At the first level of inquiry, the chambers judge must summarily consider theevidence that tends to establish undue influence or duress. If an applicant attacking the will adduces or points to some evidence, which ifaccepted at trial, would tend to establish undue influence or duress, then the presumption of validity (all other matters considered) nolonger operates.

The second level of inquiry is at the trial of the issue of the formal proof of the will if the results of the first level ofinquiry are favourable to the applicant challenging its validity. [17] I have very carefully and closely scrutinized the evidence presented by and on behalf of Mr. Lozinsky,consisting of his and his supporters’ affidavits. In doing so, I note that there is a difference between innuendo and inference, particularlyjudicial inference properly drawn from established facts. Paragraphs 14 to 17 of Mr. Lozinsky’s second affidavit (sworn April 26, 2016)set out the circumstances which Mr.

Lozinsky primarily relies upon to support Ms. Stuckel’s undue influence upon the deceased. Theother supporting deponents rely upon similar circumstances. [18] While the facts deposed to by all support the conclusion that Mr. Lozinsky and Ms. Stuckel did indeed have afalling out and that falling out had some impact on the relationship and level of engagement which the deceased had with Mr.

Lozinskyand others, nevertheless there is not a single fact or circumstance which specifically and directly supports the assertion that thedeceased’s last will and testament was motivated in whole or in part by the undue duress or undue influence of Rose Stuckel. [19] Indeed, quite the contrary is the case. [20] The will prepared by the deceased was prepared in February 2009, entirely in his own handwriting and signedby him at the foot of the will during a significant period of time when he was sober. It was signed in front of a witness, Mr. Hrytsak. AsMs.

Stuckel’s affidavits establish, not only did the deceased make the will that he did, he had also previously transferred their home inSaskatoon into he and Ms. Stuckel’s joint names, as he did the NE¼ of 12-41-2-W3. It is also noteworthy that the Areva Resources lifeinsurance policy and his RRSP with the Royal Bank of Canada both have Rose Stuckel as their designated beneficiary (see Statement ofAssets). While there is no evidence as to when these latter actions occurred, nevertheless they would have required separate initiativesand actions by the deceased.

There is absolutely no evidence or suggestion that these actions, any more than the holograph will, were theproduct of duress or undue influence exercised by Ms. Stuckel on her spouse. Indeed, those actions are completely consistent with whatmust have been the mindset and intention of the deceased. He intended to and did take the actions which he took to designate Ms. Stuckelas the beneficiary of his last will and testament, transferred the quarter

section of land and the Saskatoon house into their joint names andmade Ms. Stuckel the designated beneficiary of his life insurance and RRSP. Conclusion [21] I have not been persuaded that Mr. Lozinsky has presented or adduced evidence that would be accepted at a trialto invalidate the deceased’s will based upon undue duress and influence exercised by Ms. Stuckel upon the deceased. In the result, Idismiss Mr. Lozinsky’s application and decline to issue an order authorizing the proof of the last will and testament of Dale Lozinsky insolemn form. No hearing or trial is directed as applied for. [22] Insofar as Ms.

Stuckel’s application for issuance of Letters of Administration is concerned, the supplementaryaffidavit of Al Hrytsak, sworn February 25, 2016, addresses paragraph 2 of Mr. Justice Mills’ fiat of December 24, 2015 (Re LozinskyEstate (24 December 2015) Saskatoon, Sur 856/2015 (Sask QB)). Accordingly, the Court orders that Letters of Administration as appliedfor may now issue in favour of the applicant, Rose Stuckel. As Administrator, Ms. Stuckel is admonished to have regard to theobservations of Mr.

Justice Mills in paragraph 3 of his fiat. [23] Finally, counsel addressed the issue of the appropriate costs to be awarded in respect of both of theseapplications. I have determined that costs are to be awarded in favour of Ms. Stuckel as respondent to the application of Jason Lozinsky,the same to be assessed on Column I of the Court’s Tariff and, unless agreed to by counsel for Mr. Lozinsky, to be assessed by the LocalRegistrar upon application.

I am not awarding costs in respect to the application for Letters of Administration as those costs should andwill be borne from the proceeds of the estate to be administered. “T.C. Zarzeczny” J. T.C. Zarzeczny