PAUL RIBEN Applicant - v. -, 2023 SKKB 72

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 72 Date: 2023 04 05 Docket: SUR-SA-00014-2022 Judicial Centre: Saskatoon ___________________________________________________________________________ IN THE ESTATE OF JUDY ELAINE RIBEN, DECEASED BETWEEN: PAUL RIBEN Applicant - and - CARL RIBEN Respondent Docket: SUR-SA-00050-2022 Judicial Centre: Saskatoon ___________________________________________________________________________ IN THE ESTATE OF JUDY ELAINE RIBEN, DECEASED BETWEEN: PAUL RIBEN Applicant - and - CARL RIBEN Respondent Counsel: Robert P. Emes for the applicant, Paul Riben Glenn R.

MacKay for the respondent, Carl Riben ___________________________________________________________________________ FIAT MORRALL J. April 5, 2023 ___________________________________________________________________________ Introduction [ 1 ] Judy Riben [Judy] died on September 1, 2021, leaving behind two sons, Paul Riben [Paul] and Carl Riben [Carl], and a daughter Juanita Menard [Juanita].

Unfortunately, all Judy’s surviving children are embroiled in contentious litigation over her estate. [ 2 ] I will refer to the various parties involved in these matters by their first names, not out of familiarity or disrespect, but so as to efficiently differentiate between the various litigants, several of whom share the same last name. [ 3 ] There is an outstanding lawsuit that was initiated by Paul against Judy (while she was alive), Carl and Carl’s wife, Maria Riben.

While the background facts in the case at bar will touch on those matters, this decision will not involve any determination in relation to the continuing litigation in relation to the outstanding lawsuit. [ 4 ] There are three applications before the court. These applications involve scrutinizing two recent wills executed

by Judy. The first will was dated April 21, 2021 [April Will] and the most recent will was dated July 20, 2021 [July Will]. [ 5 ] The first application, filed by Paul on January 11, 2023, requests an order pursuant to Rule 16-46 of The Queen’s Bench Rules that the co-executors Carl and Juanita prove the July Will in solemn form and that the court order a trial on the issue of whether Carl unduly influenced Judy’s execution of the July Will.

Paul wishes the court to rely on the April Will should there be a finding of undue influence with respect to the July Will. [ 6 ] The second application, filed by Carl on February 9, 2023, requests an order pursuant to s. 19 of The Administration of Estates Act , SS 1998, c A-4.1 , that Carl be appointed as administrator of Judy’s estate pending the present litigation. [ 7 ] The third application, filed by Paul on February 21, 2023, requests an order pursuant to s. 19 of The Administration of Estates Act that the Public Guardian and Trustee be appointed as administrator of Judy’s estate pending the present litigation. [ 8 ] All the applicants request costs of these applications in varying degrees.

Background Facts [ 9 ] While normally it may be preferable to detail the multitude of facts outlined by the parties in their various affidavits in chronological fashion, given the nature of the requested relief, it will be more efficient to separate by reference to the date of the specific affidavit material filed.

This is so, given that, at this stage, the court will need to evaluate the evidence proffered by the competing parties in relation to various onuses imposed on them related to the material they filed during the first stage of the process to determine whether there is a triable issue in relation to undue influence. [ 10 ] Further, I will not refer to every specific detail or factual point submitted by either party but will focus on the salient points for the purposes of scrutinizing their competing applications. [ 11 ] On January 10, 2022, Juanita and Carl jointly applied for probate of Judy’s July Will, as they were co-executors.

While the court file was endorsed that letters probate could issue on January 17, 2022, a caveat from Paul was received January 18, 2022, so that the court thereafter ordered that letters probate could not issue. [ 12 ] As part of an application to extend the caveat, Paul filed an affidavit sworn April 14, 2022, indicating that he needed more time to obtain the solicitor’s file for the estate and to obtain Judy’s medical records to determine whether to apply to have Judy’s July Will proven in solemn form. [ 13 ] On May 10, 2022, Paul applied for an order pursuant to Rules 1-4, 1-5, 5-15 and/or 16-43 of The Queen’s Bench Rules and s. 27 of The Queen’s Bench Act, 1998 , SS 1998, c Q-1.01 , for Carl to do the following: a. produce a record from the Pharmaceutical Information Program identifying any prescriptions dispensed to Judy for one year preceding her death; b. produce a record from the Medical Services Branch identifying any medical services provided by practitioners to Judy for one year preceding her death; c. authorize McKercher LLP to obtain health information for Judy from the practitioners identified in the records pursuant to (

a) and (

b) above; and d. authorize McKercher LLP to obtain the solicitor files of Ms.

Marianne Kramchynsky and John Rozdilsky pertaining to Judy’s will and estate. [ 14 ] He then applies in the alternative that, pursuant to Rule 5-15, the Saskatchewan Health Authority be ordered to do the following: a. produce a record from the Pharmaceutical Information Program identifying any prescriptions dispensed to Judy for one year preceding her death; b. produce a record of medical services provided by practitioners to Judy in the one year preceding her death; and c. produce a record of personal health information for Judy in its possession, custody and control for one year preceding her death. [ 15 ] He also applied in the alternative that, pursuant to Rule 5-15, Marianne Kramchynsky and John Rozdilsky be ordered to produce their solicitor files relating to any dealings they had with Judy’s estate. [ 16 ] In support of this application, Paul filed his affidavit sworn May 10, 2022, which contained the following salient points: a.

Judy executed a will on April 21, 2021 (the April Will), before lawyer Marianne Kramchynsky in Blaine Lake, Saskatchewan. b. On July 20, 2021, she executed a revised will (the July Will). c. He states that the terms of the April Will provided a fair and equitable distribution of Judy’s assets among all her children but that the July Will was drafted primarily for Carl’s benefit. d. Judy was battling cancer in 2021 and taking drugs that impaired her ability to handle her day-to-day affairs and was frequently “out of it”.

He did not believe his mother had the capacity to execute the July Will because of her failing health and the medication she was

taking. e. Carl would bully and abuse Judy and would yell and threaten her whenever he visited and, eventually, Judy had to start taking anti-anxiety medication whenever she had to see Carl. f. When Judy transferred title to her land to Carl to hold with her as joint tenant, this surprised him as he understood, as was stated in the April Will, that Judy intended to subdivide the land to give part to Carl and part to Juanita. g.

During that time, he and Carl remained embroiled in litigation, and Paul believes Carl pressured Judy to execute the July Will because he was upset that Paul wanted his land back and he was envious of Paul’s success with his distillery business. h. Juanita was Judy’s power of attorney prior to her passing, and she advised Paul that she had learned that Judy had an appointment to discuss changes to her will with Ms. Kramchynsky, and that Juanita sent Ms.

Kramchynsky an email on July 11, 2021, warning the lawyer of Judy’s current cognitive restrictions and encouraging her to contact Judy’s nurse for further information. No response was received. [ 17 ] On May 24, 2022, Paul requested this application be withdrawn, which request was granted by this court on May 25, 2022. [ 18 ] As part of an application without notice filed July 8, 2022, by Paul to extend the caveat to January 18, 2023, he filed an affidavit sworn July 5, 2022, which explained some of the procedural steps that had been taken to that point: a.

On May 11, 2022, he was advised by his lawyers that the lawyers for Judy’s estate indicated Carl would sign the authorizations to obtain Judy’s records and, given that consent was forthcoming, they could withdraw the May 10, 2022, application. b. Given certain issues, he thereafter began to believe that Carl would not provide his consent and instructed his lawyers to refile the withdrawn May 10, 2022, application which was then set to be heard June 28, 2022. c.

After a consent adjournment on June 28, 2022, the lawyer for the estate withdrew on July 5, 2022, and the matter was adjourned to provide Carl with more time to contact a new lawyer. d. He understands from his lawyers that the new lawyers for the estate will need more time to review the file than the caveat permits, and this would be the reason for his application to extend the caveat. [ 19 ] On July 18, 2022, the Court granted the caveat extension request, and the application originally filed May 10, 2022, was adjourned from time to time.

Eventually, three further affidavits were filed with respect to that application. [ 20 ] The affidavit of John Rozdilsky sworn August 18, 2022, indicated that he has never had any interactions with Judy in a professional capacity or otherwise. [ 21 ] The affidavit of Marianne Kramchynsky sworn September 6, 2022, provided the following details: a. She is a lawyer who has been practising since 1998. b. The first communication she received on the file was on April 6, 2021, when she received email instructions for a will, power of attorney and health care directive for Judy from Juanita. c.

She met Judy in person on April 9, 2021, when she was brought to her office by Juanita. Judy was not capable of leaving the car on that occasion due to a cancerous tumour on her spine. d. Juanita had brought the Word attachment of the April 6, 2021, email instructions with her and, according to her affidavit: Because her mother was to be admitted to hospital the next day for cancer surgery, Juanita was demanding that my staff witness her mother’s signature on the document. Juanita was beyond insistent; she demanded, cried, and even screamed that the document had to be witnessed. e.

She witnessed Judy’s signature on the email instructions and did not provide any advice as to form or content that day. f. She did not provide any further details with respect to the eventual execution of the April Will. g. Prior to her surgery, she said that Judy had commenced the process of subdividing the home quarter so she could leave the land to Carl and the house and yard to Juanita. She was later advised by Judy that the subdivision could not be approved by the municipality, which then led her to her decision to transfer the property in joint tenancy with Carl. h.

On June 24, 2021, she received new email instructions from Juanita to amend the April Will for Judy. The significant contemplated changes for the will in the appended email included a clause that if Judy is unable to drive, then her vehicle would be gifted to Juanita. As well, the home quarter, house and yard were to go to Carl, but he was to let Juanita reside in the home “as long as she needs”, which could be “indefinitely”. i. Given the volume of material received from people other than Judy, Ms. Kramchynsky was careful to discuss Judy’s wishes with her directly, both in telephone and in person.

Judy clearly indicated during their phone call of July 5,2021, that she did not want Juanita’s instructions followed. j. The following is a copy of Ms. Kramchynsky’s notes of her conversation with Judy to this effect on July 5, 2021:

July 5/21 T/A Judy Riben Land to be registered jointly c̄ Carl - bins - to go to Carl - house & contents to go to Juanita - Juanita to be in charge of distributing – golf cart, lawn mower - - divide personal items equally – everyone contributed to farm. - does not want Juanita’s instructions followed. - just change land reference in Will. - Big A/C – to go to Daniel Menard - Savings a/c k. She then saw Judy on July 20, 2021, in her office to execute the July Will.

She said that Judy attended the office alone and that none of her children were present in her office or in the building as the documents were reviewed or executed. The following is the copy of the memorandum of execution that Ms.

Kramchynsky prepared contemporaneously with the signing of the documents: MEMORANDUM OF EXECUTION File No. 10787.6561 NAME(S): Judy Riben ADDRESS: Box ***, Blaine Lake S0J 0J0 306-497-**** cell 306-202-**** PHONE & EMAIL: No personal email DOCUMENT(S): Will and Transfer to Joint Tenancy DATE SIGNED: July 20/21 PLACE: Rosthern office – 718 Railway Ave WITNESS(ES): Myself, Laura Ayres (law student) COMMENTS: Judy arranged for her own ride here, and came into the office with her walker unaccompanied by anyone. She appeared alert, did not complain of pain.

She was very sure she wanted to transfer her property to joint tenancy with Carl. She wants all three of her children to share in personal belongings, Juanita is already using her car. Judy mentioned working on a settlement with Paul regarding stuff he has taken and any funds from that she will decide how to allocate. DISPOSITION OF ORIGINAL(

S) AND COPIES: Gave her orig. Will + 3 copies (in envelopes, 1 for each child). Also gave her 7 photocopies of PoA signed in April. She has a suitcase where she keeps important papers. - Given the effort it took for Judy to call me, arrange for this appointment, her lucidity, independence – I have no doubts about her testamentary capacity. I believe Laura’s opinion would support that conclusion. l. She indicated that prior to April 2021, she did not know anyone in the Riben family and has no vested interest in the outcome.

Her only concern was ascertaining and reflecting Judy’s wishes. [ 22 ] The affidavit of Carl sworn September 6, 2022, states as follows: a. He does not agree with “many” of the assertions in Paul’s affidavit of May 10, 2022, but will only respond to those he believes are relevant. b. He states that Judy had capacity until shortly before her passing, including having capacity during the month of July 2021, as she was doing her own banking, engaging in the day-to-day affairs of the farm and was fully aware of everything and everyone going on around her.

c. He denies any and all accusations that he was bullying or abusive to Judy or that he would yell and threaten her or that she took anti-anxiety medication in response to anything he did. d. When Judy died, she was defending a lawsuit brought by Paul against Carl, Judy and Carl’s wife, Maria Riben. He said there were no conflicts of interest between Judy and himself or his wife. e. He denies pressuring Judy to execute the July Will or any other document or that he unduly or inappropriately influenced Judy in any fashion. f.

He states that he cannot consent to release any documents as probate was never granted. [ 23 ] On September 13, 2022, the court granted an order that Paul may look at the file of Ms. Kramchynsky related to her instructions from Judy given the relevance to these proceedings. [ 24 ] In response to the three applications that are presently before the court, a number of sworn affidavits were filed. [ 25 ] In the affidavit of Juanita sworn January 10, 2023, she states as follows: a.

Judy began to feel unwell in January or February 2021, and an MRI on April 9, 2021, revealed that she had metastatic breast cancer which had spread to her lungs and spine. She had surgery and returned home on April 21, 2021, but she was hospitalized again at the end of June, recovered for a short while. Around July 25, 2021, she had a breakdown and was carried out of the house by Paul; she was hospitalized until August 6, 2021. After her discharge from the hospital, she moved into Juanita’s condo in Saskatoon, where she lived until she died on September 1, 2021. b.

Before her diagnosis, she was not on any medication except her inhalers, while post-diagnosis she was on many medications which impacted her cognitive ability and mental capacity to sign important documents. These included Lorazepam, morphine sulfate and hydromorphone HCI, among others. While on these medications, she was very agitated and began having visual hallucinations such as seeing cats running around or objects in rooms that were not there. c. She has concerns about whether Carl unduly influenced Judy to sign the July Will. d.

She begins by stating that Judy’s house needed renovations for her to live in after surgery. Juanita’s daughter, who completed her Occupational Therapy – Physiotherapy Assistant degree, developed a plan to make the house safer so that Judy could live comfortably using a walker and wheelchair. She stated that Judy requested a window be put in the bathroom. Paul made arrangements with a contractor who was going to complete the work for free, but Carl insisted on having his stepdaughter’s husband do the work.

As part of that project, they were told that it would be $600 to have the bathroom window installed, and Carl refused to proceed with that. She states, “I believe Carl did not want to install the ramps and windows because he was thinking about himself. Everything I tried to buy for Mom to facilitate her living safely at home caused a fight with Carl. He did not want to spend Mom’s money on these renovations because it would take away from the money he would inherit when she died. He did not care about her safety or interests.” e.

With respect to the April Will, she said that Judy wanted to make a will, and she helped type it up. The will said that Juanita was going to get the house and that she wanted the land subdivided between Paul, Carl and Juanita and everything else split equally. Judy was not sure how to go about dividing the land but insisted that everything be divided equally. They dropped off a printed copy to Ms. Kramchynsky on the way to the hospital for the MRI, and Judy signed the printed copy on that day. f. On the way back home from the hospital on April 21, 2021, they stopped at Ms.

Kramchynsky’s office and signed the official copy of the April Will. g. When Judy got home from the hospital, she hid the copies of the April Will in her bedsheets. Within a week, Carl called Juanita and said that the April Will was missing. h. She believes Carl took the April Will because, in early May 2021, he started asking Juanita questions about things that he did not know before but were included in the April Will. i. She then says that Carl “started doing strange things with Mom’s assets.” j.

On June 30, 2021, Carl sold a 1980 Versatile 555 4WD tractor, falsely listing himself as the owner, and received all the proceeds of the sale. On June 24, 2022, she phoned Carl and asked him for the invoice of the tractor sale, and he said, “How should I know, it was Mom’s tractor, and she sold it.” k. With respect to subdividing the land, she said that Judy had begun that process before her diagnosis as she wanted Juanita to stay in the house and have a certain number of acres, as determined by the land survey, and Carl was going to get the rest of the land.

The shop, machines and grain bins were to be divided with Paul. l. Carl had started saying that Judy’s plans for subdivision would not work and the process was stopped. In early May, she saw that Judy had sent a letter to Ms. Kramchynsky taking Juanita off the title of the land and transferring all of Paul’s titles to Carl. Some parts of the letter were typed, and some portions were handwritten, and Juanita avers that the handwritten portions did not “look like” Judy’s handwriting. m.

In June, she says Judy wanted to submit a second application for subdivision but, after telling Carl about this plan that was to proceed though Juanita, Carl was very upset, and Judy told Juanita not to proceed as she would figure out the subdivision with Ms. Kramchynsky. n. In July, they discussed subdivision again and Carl was insisting that Judy give him sole title to the land, but Juanita thought it better

to do joint title in case he separated from Maria. Judy then decided to transfer the title to the land to herself, Carl and Juanita with a right of survivorship and to complete the subdivision later. This is what she understood to be taking place when Carl took Judy to sign the July Will. o. She assumed this is what happened until she received a letter from Information Services Corporation [ISC] that listed only Judy and Carl on the land. p. In June or July 2021, Judy asked Juanita for help in drafting a second will and noted that Carl was constantly nagging her about signing another will. Ms.

Kramchynsky had sent a letter to Juanita stating that, as power of attorney, she should not be helping Judy with the will. She said she stopped helping at that point. Ms. Kramchynsky also said that neither of them should drive Judy to the appointment as it could be seen as undue influence. q. A few days before the second appointment to sign the July Will, Carl had told Judy not to take narcotics on that day, but Juanita states Judy took them that day anyway. r.

She said that Carl insisted on driving Judy to the appointment and “ exerted significant pressure by constantly telling her she needed to sign it and yelling at her to get into the car before the appointment”. s. She states that she was concerned about Judy signing the July Will but did not interfere because Carl said if she did anything to interfere, he would contact his lawyers because she was “obstructing Mom’s wishes.” t. She says that when Judy was discharged from the hospital in August 2021, and Juanita brought up the ISC letter she had opened.

Judy indicated that there was a mistake with the title documents because Juanita was supposed to be included in the July Will. Further, she said that Paul was supposed to be included in the July Will and that everything was supposed to be divided evenly between Carl, Paul and Juanita. u. She said that Judy wanted her to draft a new will but that she would not let her as she was not competent to sign the new will as she was on several medications, including narcotics.

When Judy got mad at her because Juanita “did not protect her”, Juanita stated she did not intervene as Carl has threatened her with legal action. v. Juanita then notes she reviewed the July Will with Judy only and that Judy said “there was a mistake”. Judy then asked Juanita to draft a letter to Jay Watson to fix this mistake and, in the presence of Carl, Juanita drafted a letter to Mr. Watson indicating that Judy wanted a subdivision to take place.

Carl approved of this letter, but before it was sent, Judy indicated that she wanted a term to include Carl and Juanita only and not their respective spouses, given the potential for divorce. w. Juanita emailed the letter to Mr. Watson, but the next day Carl called to say that Judy’s plans would not work according to Maria, and Carl then offered Juanita a term that title would remain in Carl’s name but that she could stay in Judy’s house for free. Juanita declined. In the meantime, Judy passed away, and the matter was left unsettled. x.

In relation to the topic of Judy’s anxiety around Carl, Juanita indicates that Judy would get upset and have panic attacks when Carl was around and, when he would leave, Judy would ask for Lorazepam and eventually started asking for it when she knew he was coming over. [ 26 ] In Carl’s affidavit sworn February 9, 2023 (in relation to the appointment of himself as a property guardian), he states as follows: a. He denies all suggestions he exerted any undue influence with respect to the July Will. b. Given that Juanita disputes this July Will, he believes he is the only potential executor to that will. c.

He requests to be appointed administrator pending litigation in order to invest, gather in and marshal the assets, to pay the testamentary and estate expenses, to prepare income tax returns on behalf of the estate and his mother and the deal with the legal proceedings concerning the estate. d. He notes he has limited information about the estate as all information about the estate is delivered to Juanita, who refuses to provide it to himself. [ 27 ] In the response affidavit of Carl sworn February 17, 2023 (in relation to proving the July Will in solemn form), he states as follows: a.

He disputes the assertions in Juanita’s affidavit sworn January 10, 2023 but will limit his responses to relevant matters. b. He disputes Juanita’s ability to provide any medical opinion on Judy’s capacity and did not observe Judy acting in the way Juanita describes. c. He disputes any assertion of undue influence. d. He says that the window could not be installed in the bathroom because of significant necessary structural changes. On learning this, Judy chose not to have the window installed. e.

No one had told him that there was an individual who would work for free, as both Juanita and Judy agreed that his stepdaughter’s husband should undertake the renovations. f. He denies that he fought with Judy or Juanita regarding how Judy would spend her money.

g. He denies ever interfering with Judy’s July Will. h. He denies doing anything inappropriate with the tractor. Previously, Judy and Carl had decided to fix up the tractor to clean up the yard. It was sold under his name as he was the only one with an account at the auctioneers. As he and Judy farmed together, the proceeds of the sale were divided between them. The proceeds were to be used to help get power hooked up in the shop at the homestead. Carl provides various receipts to corroborate his version of events. i.

He notes that Juanita’s allegations regarding the distribution of the shop, machine and grain bins are incongruous with the text of both wills. j. He denies that he interfered with Judy’s wishes in relation to partition. He says that his mother told him that she did not want to partition the land, but Juanita had said that if the land was not partitioned, then Juanita would cease caring for Judy. k. He denies he nagged Judy about making the July Will. l.

He states that Juanita was, in fact, involved in the drafting of Judy’s July Will and specifically notes the portion of the will that directed Juanita’s share of the savings account to be gifted to Juanita’s husband, Daniel Menard, around the time of Juanita’s bankruptcy. He states that Juanita transferred over $130,000 to Mr. Menard in several installments prior to Judy’s death so that these funds were substantially transferred prior to Judy’s demise. m. He avers that he never spoke to, met with or otherwise communicated with Ms. Kramchynsky. n.

He denied ever advising or not advising Judy to take or not take any medication or narcotics. o. He denies ever yelling at Judy or “exerting significant” pressure in any way. p. He denies “insisting” on driving his mother to the appointment to execute the July Will as Judy asked him to drive her there. He states that during the drive, he asked Judy if this is what she wanted to do, and she said it was. q. He agrees that he told Juanita to let Judy make her own decisions with respect to her will and that Juanita should stop interfering with Judy’s wishes. He denies ever threatening legal action. r.

He is unsure why, if there was a mistake in Judy’s July Will or her estate plan, she would contact Jay Watson and not have Ms. Kramchynsky, who prepared the documents, address the matter. s. Prior to her death, Judy was sued by Paul, and the Leland Kimpinski LLP law firm represented Carl and his wife, as well. [ 28 ] During argument with respect to these applications in chambers, I requested further information from both parties relating to the fees charged by the Public Guardian and Trustee and the change in distribution value between Judy’s April Will and the July Will.

I received the following two affidavits. [ 29 ] In the affidavit of Carl sworn March 2, 2023, he states as follows: a. In this affidavit, he says he makes his best efforts to provide a comprehensive value of all the property of the estate and provides detailed estimates on all matters. b. With respect to the farm equipment, he notes Judy owned different percentage interests in various pieces of farm equipment and that much of the equipment was owned jointly with Paul and Carl.

He states that all the equipment has a fair market value of $424,800 and, according to Judy’s various interests in the farm equipment, her share totaled $133,770.84. He avers that Paul disputes these ownership interest figures which is the subject of the Paul’s lawsuit against Judy, Carl and Carl’s wife, Maria Riben, and their counter-claim against Paul. c. According to the distribution in the April Will, the following property would be received by the following beneficiaries: (

a) The Subject Land, Fixtures and Chattels: (

i) Juanita would receive the yard side, house and red barn; and (ii) I would receive remainder of the Subject Land; (

b) Grain on Hand: I would receive the grain on hand; (

c) Farm Equipment: I would receive My Mother’s interest in the farm equipment; (

d) Vehicles: Juanita would receive the 2016 Buick Enclave; (

e) Canada Premier Life Insurance: Juanita, Paul and I would equally share in this policy as part of the rest and residue of the estate; (

f) Crop Insurance Claim: Juanita, Paul and I would equally share in this claim as part of the rest and residue of the estate; (

g) Bank and Registered Accounts: (

i) I would receive the Heritage Plan Maximizer account; (ii) Juanita and I would receive the tax-free savings accounts; and

(iii) Paul would receive the registered income fund; (

h) Rest and residue: Juanita, Paul and I would equally share in the rest and residue of the estate. d.

Using the values he has calculated for the various assets, the following table lists their approximate value at the time of the April Will and the date of Judy’s death, along with the values based on the April Will’s purported distribution of those assets to the various beneficiaries: 8. … JUANITA/DANIEL MENARD CARL RIBEN PAUL RIBEN VALUE (%) ($) (%) ($) (%) ($) April 21, 2021 $1,051,434.06 41.99% $441,453.75 49.63% $521,856.90 8.38% $88,105.78 July 20, 2021 $1,048.785.31 41.89% $439,372.68 49.90% $523,358.15 8.29% $86,037.47 September 1, 2021 $917,548.30 43.31% $397,425.39 51.90% $476,166.48 4.79% $43,952.04 e.

According to the distribution in the July Will, the following property would be received by the following beneficiaries: 7. As set out in the July Will, My Mother intended to bequest the following property to the following beneficiaries: (

a) The Subject Land, Fixtures and Chattels: I would receive all of the Subject Land; (

b) Grain on Hand: I would receive the grain on hand; (

c) Farm Equipment: I would receive My Mother’s interest in the farm equipment; (

d) Vehicles: Juanita, Paul and I would share equally in the 2016 Buick Enclave as part of the rest and residue of the estate; (

e) Canada Premier Life Insurance: Juanita, Paul and I would equally share in this policy as part of the rest and residue of the estate; (

f) Crop Insurance Claim: Juanita, Paul and I would equally share in this claim as part of the rest and residue of the estate; (

g) Bank and Registered Accounts: (

i) I would receive the Heritage Plan Maximizer account; (ii) The registered accounts would be paid to the beneficiary listed (which was Juanita’s husband, Daniel Menard per Exhibit “I”); and (iii) Juanita’s husband, Daniel Menard, would receive the Investor Savings account; (

h) Rest and residue: Juanita, Paul and I would equally share in the rest and residue of the estate. f.

Using the values he has calculated for the various assets, the following table lists their approximate value at the time of the July Will and the date of Judy’s death with their values based on the July Will’s purported distribution of those assets to the various beneficiaries: 10. … JUANITA/DANIEL MENARD CARL RIBEN PAUL RIBEN VALUE (%) ($) (%) ($) (%) ($) April 21, 2021 $1,051,434.06 18.91% $198,864.30 79.08% $831,483.29 2.00% $21,080.14 July 20, 2021 $1,048.785.31 18.33% $192,267.27 79.64% $835,248.56 2.03% $21,264.09 September 1, 2021 $917,548.30 7.22% $66,271.06 90.46% $830,005.98 2.32% $21,264.89 g.

He then provides a chart that lists the differences between the value of the property that would be distributed between the April Will and the July Will during the relevant periods as follows: 11. … JUANITA/DANIEL MENARD CARL RIBEN PAUL RIBEN April Will July Will Change (+/-) April Will July Will Change (+/-) April Will July Will Change (+/-) April 21, 2021 41.99% 18.91% - 23.08% 49.63% 79.08% 29.45% 8.38% 2.00% -6.38% July 20, 2021 41.89% 18.33% - 23.56% 49.90% 79.64% 29.74% 8.20% 2.03% -6.17% September 1, 2021 43.31% 7.22% - 36.09% 51.90% 90.46% 38.56% 4.79% 2.32% -2.47%

h. He noted that the value in Judy’s estate on September 1, 2021, was materially affected by transfers made prior to and on the date of Judy’s death. He noted that between April 17, 2021, and September 1, 2021, $6,420.00 was transferred from Judy’s Heritage Plan Maximizer to either Juanita or her husband, Daniel Menard. Further, $133,990.95 was transferred between July 14, 2021, and September 1, 2021, to Juanita or her husband, Daniel Menard, from Judy’s Investor Savings account including one wire transfer of $119,378.95 on August 26, 2021, leaving a balance of 66 cents in the account on September 1, 2021. i.

Given that Judy relied on Juanita to manage her banking during these time periods, Carl believes that Juanita made those transfers to herself and her husband, Daniel Menard. He is unaware of any reason for these transfers. j. He provides reasons why, in his opinion, the distribution in property was made as a result of the partition issue. He noted Judy removed him from the distribution of her registered accounts and savings accounts and gave them to Juanita and her husband which had a July 20, 2021, value of $171,004.14. k.

He believes that Paul commencing his lawsuit against Judy on April 22, 2021 (which Judy, Carl and Maria Riben defended and counter-claimed on May 27, 2021), explains the changes to Paul’s share of the property value between the April Will and the July Will. [ 30 ] In the affidavit of Paul sworn March 2, 2023, he states as follows: a. He attaches a spreadsheet containing a list of the items comprising the estate, their values and who would receive the items under the April Will and who the items would be distributed under the July Will. It shows as follows:

Section Item Value Beneficiary in [April Will] Beneficiary in [July Will] / after Land Title Transfer Changes Comments Executors N/A N/A N/A N/A N/A No change between wills A. Payment of Debts N/A N/A N/A N/A N/A July will specifies that income taxes are to be paid from the Farm Account at Affinity Credit Union, while funeral, estate legal, and probate costs are to be paid from the ACU Savings Account B.

Specific Gifts of Land Acreage $125,000 Juanita Carl Carl received an extra 125,000 House $200,000 Juanita Carl Carl received an extra 200,000 Contents $2,000 Juanita Paul, Carl, Juanita – each 1/3 Carl received an extra 666.66 2000 according to Paul; contents already divided between Juanita and Carl $357,000 Barn $30,000 Juanita Carl Carl received an extra 30,000 Storage Bins Juanita N/A N/A Paul is unaware of any storage bins other than the grain storage bins. Vehicle Juanita N/A N/A Vehicle went to Juanita before death; a tandem grain truck was signed to Carl at the same time.

Golf Cart Riding Mower $1,500 Not Specifically Identified Paul, Carl, Juanita – each 1/3 N/A Paul guesses 1500. This would have probably been residue under the First Will, so no change.

Balance of Acreage $288,300 Carl Carl N/A Gas Tanks N/A N/A N/A N/A Referenced in the Will but not sure of Grain Bins $82,125 Carl Carl N/A Grain on Hand $13,745 Carl Carl N/A Shop $90,000 Carl Carl N/A Farm Equipment N/A Grain fans $2,400 Carl Carl N/A Swather $7,627 Carl Carl N/A Swather Header $500 Carl Carl N/A Tractor Vers 535 $62,446 Carl Carl N/A Fertilizer Tank $2,000 Carl Carl N/A Combine $125,000 Carl Carl N/A Flexi Coil Drill $15,644 Carl Carl N/A Flexi Coil Air cart $9,447 Carl Carl N/A 10” auger $5,000 Carl Carl N/A Heavy Harrows $1,875 Carl Carl N/A Grain trailer tridem $5,829 Carl Carl N/A Swathe roller $150 Carl Carl N/A C.

Specific Monetary Gifts Affinity Credit Union Heritage Plan Maximizer Sub. No. 99 (Farm Account) $3,014 Carl Carl N/A Affinity Credit Union tax free savings account no. *****20 $15,653 Paul, Carl, Juanita – each 1/3 Daniel Menard Paul and Carl each lost $5,217.52 Affinity Credit Union registered income fund, valued at $29,316.23 $29,316 Paul Daniel Menard Paul lost $29,316 D.

Residue (Under April Will) Affinity Credit Union Investor Savings Account $4,402 Paul, Carl, Juanita – each 1/3 Daniel Menard Paul and Carl lost $1,467.33 This was given the value of 126,000 in Judy’s first will; the bulk of that amount was transferred to Juanita while Judy was alive so Juanita could use it to take care of Judy. SHEPP Life Insurance Plan $12,000 Paul, Carl, Juanita – each 1/3 Paul, Carl, Juanita – each 1/3 Residue as not specifically referenced SAHO 3SHealth Life insurance Policy $42,000 Paul, Carl, Juanita – each 1/3 Paul, Carl, Juanita – each 1/3 N/A Approximate vale [ sic ]

Canadian Premier Life insurance Policy $7,500 Paul, Carl, Juanita – each 1/3 Paul, Carl, Juanita – each 1/3 N/A CPP Death Benefit $2,500 Paul, Carl, Juanita – each 1/3 Paul, Carl, Juanita – each 1/3 N/A Everyday Savings Account $0 Paul, Carl, Juanita – each 1/3 Paul, Carl, Juanita – each 1/3 N/A Crop Insurance $25,726 Paul, Carl, Juanita – each 1/3 Paul, Carl, Juanita – each 1/3 N/A E. Predeceased Beneficiaries See comments See comments Consistent with Carl receiving Judy’s land, the reference to the acreage was removed from this

section in the [July Will]. F. No Contest N/A N/A No change between wills G. Trustee Powers N/A N/A No change between wills Total $1,212,700 PGT fees - $6,000 on first $100,000 $6,000 + 4% of next 1,072,700 [ sic ] [the correct amount should be 1,112,700] $44,508 Sum $50,508 b. He states that the principal changes between the wills relate to her land and the buildings on it. Under the April Will, Juanita was to receive the house, its contents, approximately 12 acres of land and a barn.

However, under the July Will, Juanita was entitled to split the contents of the house with Carl and Paul but would no longer receive the house, the 12 acres or the barn, which were all given to Carl. As well, Judy executed a title transfer to add Carl to the title of her land as a joint tenant on the same day she executed the July Will. c.

He states he understands that the land and buildings would not be considered part of the estate since they were transferred into joint tenancy with Carl, but he advises that he has instructed his solicitor to initiate a claim or amend their current one to have that transaction set aside due to Carl’s undue influence on Judy. d. He says he was practically disinherited under the July Will. In the April Will, he would have received an account valued at $29,316.23 and shared in the residue of the estate that, at the time, included Judy’s investor savings account valued at $126,000.

In the July Will, he was only entitled to share in the residue of the estate, which no longer contained the investor savings account as the bulk had been transferred to Juanita during Judy’s lifetime for Juanita to spend for Judy’s care. He calculates that he would receive $71,316.23 less under the July Will than the April Will. e. From his math, he calculates that Juanita would receive $230,000 less despite some changes benefiting her between the April Will and the July Will, so that, in total, Carl ends up approximately $300,000 better as a result of the changes. f.

He then relates what he understands to be the Public Guardian and Trustee fees should they administer the estate, which he calculates at $50,508, as well as some other small fees. He does not see that there would be any extra legal fees charged by the Public Guardian and Trustee as a result of defending the estate as the estate would be paying fees to counsel in any event for that service. [ 31 ] It is obvious that many of the paragraphs of the sworn material filed for these proceedings contained opinion and argument.

Given there was no formal application to strike by either party, I have noted the impugned material but will not be considering the opinions or arguments as factually established evidence in coming to my determinations on these matters. Issues [ 32 ] I would frame the issues as follows: 1. Does the applicant, Paul Riben, have standing to bring an application pursuant to Rule 16-46? 2. What is the legal process and test to have a will proven in solemn form pursuant to Rule 16-46? 3. Has the applicant adduced sufficient evidence to raise questions about undue influence? 4.

If so, has the respondent adduced sufficient evidence to establish there was no undue influence? 5. If the court finds there to be a genuine issue requiring a trial, who should be appointed as the administrator of Judy’s property

pending litigation pursuant to s. 19 of The Administration of Estates Act? 6. What should be the quantum of costs in this matter? Argument 1. Does the applicant, Paul Riben, have standing to bring an application pursuant to Rule 16-46? [33] The powers of the court regarding wills and estates are contained in The Administration of Estates Act.Sections 3 and 8 state as follows: Powers of the court 3(1) The court may: (

a) grant and revoke letters probate and letters of administration; (

b) hear and determine all actions and matters relating to: (

i) the granting and revoking of letters probate and letters of administration; and (ii) the

interpretation of wills; … Proof of execution of will 8(1) The due execution of a will is to be proved in the form and manner prescribed in the rules of court.

(2) In addition to the proof mentioned in subsection (1), a judge may require: ... (

c) proof in solemn form. [34] Rule 16-46 of The Queen’s Bench Rules states the following: Applications to prove will in solemn form 16-46 A person who is or may be interested in the estate of a deceased person may give notice for the will to be proven in solemn form. [35] The recent decision of the Saskatchewan Court of Appeal in Olson v Skarsgard Estate, 2018 SKCA 64, 426DLR (4th) 151, provides some thorough guidance on the issue related to who may have standing to challenge a will in this fashion. TheCourt stated as follows: [15] Rule 16-46 is straightforward in its language.

Perhaps for that reason, few cases have addressed the question of who has standingto give notice under Rule 16-46 to have a will proven in solemn form.

In Saskatchewan, although Laing J. (as he then was) did not haveto resolve the question of who “may be interested in the estate”, he nonetheless helpfully addressed the issue of who is “interested in theestate” under the predecessor to Rule 16-46 in Verbonac Estate, Re (1997), (SK KB), 159 Sask R 299 (QB), wherehe said: [8] It is not necessary to resolve who “may be” interested in an estate for the purposes of Rule 734, because the applicants are persons“interested” in the estate.

Tristram and Coote, Probate Practice, 23rd Ed. (London: Butterworths, 1970), at pp. 622-623 indicates thatpersons who are entitled under an intestacy, a legatee in the will, and an executor or beneficiary under any other testamentary instrumentare interested persons and are entitled “to proof in solemn form either before or after probate has been taken in common form ...”. Thesesame persons would be interested persons under rules 734 and 735. [16] The old English rules of court, upon which our probate practice and procedure rules were based originally, set out the sameintention as Rule 16-46. For example, R.F.

Burnand and A.S. Diamond noted in The Annual Practice, vol 1 (London, England: Sweet &Maxwell, 1958) at 7 [White Book]:

(1) Probate in Solemn Form.—Any person whose interest in the estate of a deceased person is prejudiced by a testamentary documentmay compel the executor, or other person entitled to a grant under it, to prove the document in solemn form of law—that is, to propoundit in a writ of summons and establish it by the examination of one or more of the attesting witnesses (see Belbin v. Skeates, 1 Sw. & Tr.148). See also Williams on Executors, 10th ed., pp. 253 et seq., and O. 21, r. 18. The attesting witnesses are witnesses of the Court, andmay be cross-examined by the party calling them (Jones v.

J. (1908), 24 T.L.R. 839). The following notations are found under Order 16, Rule 10 in the White Book at 344: Probate Actions.—Includes actions and other matters relating to the grant or recall of probate or of letters of administration other thancommon form business, O. 71, r. 1. Cf. J.A., 1925, s. 100. Any person who has an interest, or even a possibility of an interest, in the estate of the deceased, has a right to become a party to aprobate action (see Kippling v. Ash, 1 Rob. 270; 4 N.C. 177; Crispin v. Doglioni, 2 Sw. & Tr. 17; 29 L.J.P. 130).

[17] In Williams on the Law of Executors and Administrators, 13th ed, vol 1 (London, England: Stevens & Sons, 1953) at 79, 82 and83-84, the authors explain the old English probate rule on persons interested in an estate as follows: 123.

Practice When a will is to be proved in solemn form, it is still requisite, in accordance with the old practice that such persons as have interest (thatis to say, persons interested under other wills or codicils, and the widow and next-of-kin of the deceased, to whom the administration ofhis goods ought to be committed, if he died intestate, and the heir-at-law, if there was real estate and the death occurred before 1926)should be made parties to the action, or should be cited to be present at the probation and approbation of the testament. … 129.

Next-of-kin can call for proof in solemn form The next-of-kin, as such merely, are entitled to call for proof in solemn form of the deceased’s will, of common right. The mereacquiescence of a next-of-kin to the probate being taken in the common form is no bar to the exercise of this right, even though he hasreceived a legacy as due to him under the will; for he is still at liberty to call in the probate, and put the executor to proof of that identicalwill per testes. … … 131.

Person contesting may have to show interest Before a person can be permitted to contest a will, the party propounding has a right to call on him to show that he has some interest. Any interest, however slight, and even, it seems, the bare possibility of an interest, is sufficient to entitle a party to oppose a testamentarypaper.

Thus where a testator disposed of all his personal estate by his will and gave his real estate, but none of his personal, to hisbrother’s children, and by a codicil he gave them pecuniary legacies, revoking the devise to them of the real estate which was of greatervalue than the legacies, it was held that they might oppose the codicil alone, notwithstanding their only right to a share of the personaltywas under it.

Though a next-of-kin may, as such, oppose all the testamentary papers as having an interest in having them set aside as awhole, he has not, as a matter of course, a right to oppose any particular one he may think fit; but some interest in having that particularpaper set aside, however remote, may suffice. [18] A useful

summary of Canadian practice, which is consistent with the old English practice, is found in the following commentaryby Ian M. Hull in Halsbury’s Laws of Canada, Wills and Estates, 2016 Reissue (Markham: LexisNexis, 2016) at 543: Standing. A person who may take as either a beneficiary under a previous will or as a beneficiary in the case of an intestacy has asufficient financial interest to be granted status to attack the validity of a will.

Someone who has not received notice of proceedings toprove in solemn form may intervene in the proceedings, but if the person is cognizant of the proceedings and does not intervene, theperson is bound thereby. [19] Justice Laing’s finding in Verbonac Estate, Re is also supported by reference to decisions of the courts of Nova Scotia andOntario, who have taken a similar view of standing to contest a will under their own probate rules, see as examples: Collicutt Estate, Re(1993), (NS SC), 120 NSR (2d) 389 (Prob Ct); Kenny v Kenny Estate, 2016 NSSC 214, 376 NSR (2d) 271; Korstenv Lovett (2002), 48 ETR (2d) 41 (Ont Sup Ct); McLaughlin v McLaughlin, 2015 ONSC 3491 at para 28, 11 ETR (4th) 183; Smith vVance (1997), 12 CPC (4th) 391 (Ont Ct J (Div Ct)). [20] The persons to which Rule 16-46 speaks include those identified by Laing J. in Verbonac Estate, Re, namely, any beneficiaryunder the will in question, any executor or beneficiary under any other valid or potentially valid testamentary instrument, and any personwho would be entitled under intestacy if the will were challenged successfully.

To those listed in Verbonac Estate, Re, I would add thatpersons ostensibly entitled to support from a testator under The Dependants’ Relief Act, 1996, SS 1996, c D-25.01, may have an interestin the testator’s estate if a court finds the testator has disposed of real or personal property “in a manner that reasonable provision has notbeen made for the maintenance of the dependant”. Similarly, a spouse or former spouse of a testator may have an interest in thetestator’s estate by reason of an application under

Part VI of The Family Property Act, SS 1997, c F-6.3. In some circumstances, abeneficiary in an action brought under The Fatal Accidents Act, RSS 1978, c F-11, may have an interest in an estate. These are butexamples; this is not a closed list. [21] In each case, the court must determine whether a person “is or may be interested in the estate of a deceased person” on the basisof the evidence adduced. This means a person who seeks to have a will proven in solemn form bears the evidentiary and persuasiveburden of establishing that he or she has standing to do so.

That is, the person must present enough evidence to satisfy the court that he orshe is or may be interested in the estate. For example, a person claiming to have an interest in an estate if it were administered inintestacy would have to adduce evidence sufficient to establish a relationship to the testator that satisfies the foremost applicable ruleunder the hierarchy of rules of succession set out in The Intestate Succession Act, 1996, SS 1996, c I-13.2.

Regardless of the context, aperson seeking to have a will proven in solemn form must do more than merely assert that they have or may have an interest in the estate.They must adduce evidence sufficient to support that inference. [36] It is clear that Paul has met the evidentiary and persuasive burden establishing his standing to make thisapplication pursuant to Rule 16-46 as he is the son of the testatrix and a beneficiary in both the contested July Will and in the priorApril Will that he wishes to propound. I find he is “interested” in Judy’s estate according to the requirements of the case law. 2.

What is the legal process and test to have a will proven in solemn form pursuant to Rule 16-46? [37] In McStay v Berta Estate, 2021 SKCA 51, 458 DLR (4th) 106 [McStay], the Court of Appeal recentlysummarized the general principles governing the legal process involved in proving a will in solemn form. The Court stated as follows:

[22] The process to be utilized when a person applies to have a will proven in solemn form is not in dispute. The current formulationof the procedure and the test was set out by Baynton J. in Dieno [(1996), (SK KB), 147 Sask R 14 (QB)]: [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. ... [31] ... If the applicant attacking the will adduces or points to some evidence which if accepted at trial would tend to negativetestamentary capacity (such as suspicious circumstances), then the presumption of testamentary capacity is no longer operative and thepropounder of the will reassumes the evidentiary burden of proving testamentary capacity.

The standard of proof is on a balance ofprobabilities but the evidence tendered will be scrutinized in accordance with the gravity of the suspicion that the deceased lackedtestamentary capacity.

If the proponents of the will do not by uncontradicted evidence satisfactorily answer the challenge made by theapplicants and positively affirm testamentary capacity, then an order should be made that the will be proven in solemn form. ... [32] If on the other hand the applicant fails to adduce or point to some evidence which if accepted at trial would tend to negativetestamentary 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) [23] The process and test were discussed by this Court in Ritchie, [2007 SKCA 64, 293 Sask R 238, leave to appeal to SCC refused,[2007] 3 SCR xiv] where Gerwing J.A. described the exercise in the following terms: [6] ... If a real question, based on probative evidence going to issues material to capacity, is raised, the will should be proved insolemn form.

However it is not every suggestion of irregularity or evidence on peripheral points which will lead a Chamber judge toconclude that there is a sufficient issue for proof in solemn form. Proof in solemn form is a lengthy and expensive process and should notbe entered 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 sayabout the standard there proposed, or the need to use it, the second portion of the Dieno test clearly envisages a situation where no onecan say a reasonable issue or question exists to be tried. [24] This Court applied Dieno and Ritchie in Kapacila [2010 SKCA 85, [2010] 9 WWR 575].

In that case, Klebuc C.J.S. discussedthe Chambers judge’s task as follows: [22] The hearing conducted to determine whether a challenged will should be proven in solemn form is often called the "first hearing"and the trial following the order requiring a will to be proven in solemn form is often called the "second hearing". The procedure andlegal test applicable at the first hearing was articulated by this Court in Royal Trust Corp. of Canada v. Ritchie, 2007 SKCA 64, 293Sask. R. 238, leave to appeal to S.C.C. refused [2007] 3 S.C.R. xiv, and partly described by Baynton J. in his seminal decision in DienoEstate v.

Dieno Estate, (SK KB), [1996] 10 W.W.R. 375, 147 Sask. R. 14. ... [24] The genuine interest test in Ritchie and the one in Quaintance v. Quaintance Estate, 2006 ABCA 47, 56 Alta. L.R. (4th) 6, arevirtually the same. Both decisions contemplate a second hearing only if the challenger of a will presents a genuine issue supported by anevidentiary foundation. As stated in Quaintance, "[i]f there is no merit to the contention [raised by the challenger], and the issues arecapable of only one resolution, it is open to the court to conclude that a genuine issue for trial has not been raised" (at para. 19).

InRitchie, Gerwing J.A. stated there is no need for a trial "where no one can say a reasonable issue or question exists to be tried" (atpara. 7). [25] More recently, in Kot [2021 SKCA 4, 63 ETR (4th) 161], this Court applied this same test.

After canvassing Dieno, Ritchie andKapacila, Barrington-Foote J.A. described the narrow role of a judge at the first hearing: [24] These comments reflect the tension between the requirement to consider the evidence that weighs both for and against theapplicant, and the limited role of a judge hearing such an application, which is a reflection of the fact that the purpose of the enquiry islimited to determining whether there is a genuine issue to be tried. To reiterate, the balance to be struck is captured by the followingstatement in Bachman v Scheidt, 2016 SKCA 150, [2017] 2 WWR 301: [16] ...

Although the Chambers judge may consider evidence from both parties, it is not his or her job to weigh conflicting evidenceand make findings of credibility. If contradictory evidence is adduced, especially where findings of credibility will have to be made, theonly option for the Chambers judge is to direct a trial.

... [31] ... In the result, while the Chambers judge adopted the criteria that govern the exercise of her discretion, she improperly proceeded to weigh the evidence and make a finding of credibility.

By doing so, she misapplied the applicable criteria and committed an error of law that calls for intervention by this Court. [26] If there is a genuine issue to be tried, the matter must be referred to trial. [Emphasis in original] [ 38 ] In Bell v Bell , 2022 SKQB 198 [ Bell ] , this Court provided some further nuanced guidance relating to the Court’s gatekeeping role in relation to contradictory evidence during the first stage of the proceeding: [13] While the weighing of contradictory evidence is improper at the first hearing, a chambers judge nonetheless retains an integral supervisory role to ensure that only those matters in which there is a “genuine issue to be tried” proceed to trial.

In performing this gate-keeping function, it must be determined whether the person challenging the will has pointed to some evidence, which if accepted at trial, would tend to negative testamentary capacity and/or prove undue influence: Kapacila [2010 SKCA 85 , [2010] 9 WWR 575 ] at para 27; Bachman [2016 SKCA 150 , [2017] 2 WWR 301 ] at para 16; Ritchie [2007 SKCA 64 , 293 Sask R 238 ] at para 6; Fraser v Fraser Estate , 2021 SKQB 192 at para 24 . In this regard, the person(

s) challenging the validity of a will must provide an evidentiary foundation to support their position; a suggestion of an irregularity is not sufficient, nor is evidence that raises suspicions generally. [ 39 ] From a review of the applicable case law, the evidentiary burden to meet to determine whether there is a genuine issue to be tried under Rule 16-46 could be said to fall somewhere between the standard necessary for striking a pleading under Rule 7-9(2)(

a) and the burden required to determine whether there is a genuine issue requiring a trial necessary for a litigant to avail themselves of the

summary judgment procedure under Rules 7-5(1) and 7-5(2). [ 40 ] The applicant indicated in argument that he was not submitting that there was any issue with respect to Judy’s mental capacity that would have led her to be unable to form the testamentary capacity to execute the July Will. Rather, Paul’s sole contention is that Carl unduly influenced Judy in the preparation of the July Will to Carl’s benefit.

They further submit, and I agree generally, that issues related to mental capacity short of establishing the testator’s mental incapacity could be relevant in determining whether there was undue influence on the testator.

Given the mix of factors argued in this matter, I will include decisions pertaining to both the concepts of undue influence and testamentary capacity. [ 41 ] On the topic of the temporal nexus necessary to establish evidence for or against testamentary capacity in the execution of a will, the court in Hrycyna v Hood , 2019 SKCA 30 , [2019] 6 WWR 712 [ Hrycyna ] , stated as follows: [44] It is trite law that the capacity to execute a document must be assessed proximate to the time of execution of the document.

For example, whether a party is incapable of understanding the nature of a contract must be determined at the time of contracting ( Boughton v Knight (1873), LR 3 PD 64 at 72). The relevant time period to assess testamentary capacity is the time of giving instruction and/or the time of executing the will ( Stevens v Morrisroe , 2001 ABCA 195 at para 17 , 202 DLR (4th) 577 , leave to appeal to SCC refused, [2002] 1 S.C.R. viii; Karpinski v Zookewich Estate , 2018 SKCA 56 ).

Similarly, the relevant time to assess capacity for the purposes of the PAA [ The Power of Attorney Act, 2002 , SS 2002, c P-20.3 ] is at the time of execution. [ 42 ] The court in Fisher Estate v Witzany , 2022 SKQB 103 [ Witzany ] , provides the following commentary in a slightly different context while specifically commenting on the evidentiary requirements related to undue influence: [9] Unfortunately, parties to these applications often fail to focus on the two most important issues in the analysis.

The first issue is to provide evidence that impacts directly on the issue of testamentary capacity or undue influence. The second is to relate that evidence to a time frame that involves the creation and signing of the will. These issues are succinctly put in Ritchie v Royal Trust Corporation of Canada , 2007 SKCA 64 at para 11 , 293 Sask R 238 : [11] The problem with the affidavits put forward by the challengers, in addition to their lack of temporal coincidence with the material period, is that they dwell on instances of forgetfulness, short-term memory problems, losing objects and emotion under stress.

None of these, 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 be disposed of, and claims to which the testator should give effect. This knowledge can exist despite the testator’s problems. It is clear from the medical affidavit that his diagnosis of dementia in 1989 was one of slow progress and according to his physician did not lead to a point where he lacked competency to make a will until 1998.

His physician, who cared for the testator at the time of the will being made and who had ongoing care for him thereafter, deposed: 4. From the time Peter Ritchie was first diagnosed as having dementia, there was a very slow progression of the dementia. The dementia did not present itself in such a degree or in such form as to interfere with his mental competency to make a will until 1998.

While Peter complained at certain times when I examined him in 1994 and 1995 of having a bit of trouble with his short-term memory, this would fluctuate from being no problem to being of a mild degree. [10] The Court must be mindful that the issue of testamentary capacity refers to the capacity at the time of the signing of the will, not before or after its execution. [11] With respect to undue influence, the timing again is important. It is the influence impressed on the testator when the will was signed.

The time frame for evidence of undue influence is larger than testamentary capacity as undue influence can be developed and manifest itself over time. [12] That is not to say that evidence of testamentary capacity occurring before or after the signing of the will may never have some impact on capacity when the will was signed. An example of this would be a determination by a medical practitioner familiar with the testator stating that the testator suffered from an advanced medical condition, perhaps Alzheimer’s or dementia, a year before the will

was signed and that such dementia or Alzheimer’s was so far advanced that there was no possibility of knowing or understanding theissues needed to make a valid will. That evidence may be, in conjunction with the other evidence on the file, sufficient to create agenuine issue for trial on the issue of capacity. The Court can never foreclose the possibility that evidence removed in time from thesigning of the will cannot have meaning. However, when evidence is adduced on the date of the signing of the will, it speaks to thetestator having the necessary capacity in clear and unequivocal terms.

It makes finding a requirement of proof in solemn form to be muchmore difficult. [43] In determining what constitutes undue influence in an application to have a will proven in solemn form, the courtin Bell noted as follows:

C) Test for Undue influence [18] The burden is on the party challenging a testamentary instrument to prove undue influence. The rebuttable presumption of undueinfluence when a special relationship exists in the context of inter vivos gifts does not apply to testamentary gifts: see Karpinski vZookewich Estate, 2018 SKCA 56 at para 29 [Zookewich]; and Olson v Skarsgard Estate, 2018 SKCA 64 at para 33, 426 DLR (4th) 151. [19] Undue influence exists when a person is coerced into doing something that they have no desire to do.

In Zookewich, citing Vout[ (SCC), [1995] 2 SCR 876], the Court of Appeal recently set out the test for undue influence: 30 In Vout, the Supreme Court reviewed the legal test for undue influence. At paragraph 29, Sopinka J. cited the decision Re Martin:MacGregor v. Ryan, (SCC), [1965] S.C.R. 757 (S.C.C.) at 765-766, where Ritchie J. relied upon Viscount Haldane'sjudgment in Craig v. Lamoureux (1919), (UK JCPC), 50 D.L.R. 10 (UK JCPC) [Craig], where the Viscount had statedat page 15: ...

Undue influence, in order to render a will void, must be an influence which can justly be described by a person looking at the matterjudicially to have caused the execution of a paper pretending to express a testator’s mind, but which really does not express his mind, butsomething else which he did not really mean.... [20] In Carlson v Carlson Estate, 2018 SKQB 196, 39 ETR (4th) 308, Brown J., citing Lamontagne [(1996), (SKKB), 150 Sask R 85 (QB)], states that undue influence “can usually only be discovered by examining the circumstances leading up to thepreparation of the will or by looking at the relationship that existed between the person benefitting from the will and the testator”.

Seealso Witzany v Fisher Estate, 2022 SKQB 103 [Witzany].

A relevant circumstance when considering undue influence is whether thedocument being questioned represents a significant change from previous documents and whether there is an explanation for that change:Witzany, at paras 54 and 61. [44] In terms of assessing the primary factors relating to undue influence, the following excerpt from the Witzanydecision provides some potentially useful factual references for litigants involved in attempting to have a will proven in solemn form: [61] There is, in reality, an absence of evidence pointing to undue influence leading up to the execution of the will.

This is not asituation where Clementine was hidden from Shelley or prevented from having contact with her which is often a tactic by a child whowishes to control the actions of an elderly parent. Shelley was free to visit as she so chose. She chose not to visit between Januarythrough March 2018. Shelley spends much ink talking about Lawrence's anger at being left no land in the December 22, 2016, will, butin the circumstances, it does not point to him exercising undue influence upon his mother in the execution of the February 2018 codicils,given their content.

Shelley certainly avers that her mother was vulnerable to manipulation but, in my opinion, points to nothingsubstantive that would lead to a genuine issue for trial. Shelley has not accepted that her mother would make the changes in the codicil asshe believed her mother did not indicate that she was unhappy with her or had decided to remove Shelley from the estate plan. Shelleybelief is not compelling evidence. Common sense tells one that a parent will not always tell a child beneficiary that they are no longerreceiving a part of the estate.

That Shelley was not informed of the changes by way of codicil is not evidence of undue influence. I trulystruggle with what real evidence is available that suggests that Clementine was coerced into changing her will in the fashion that she did. [62] There is after-the-fact evidence that talks about the distribution of Clementine's estate during her lifetime. That evidence clearlyshows that she did distribute a large portion of her estate over the years to her children other than Shelley. That, however, is not evidencethat shows no undue influence was exerted.

It just simply confirms that the changes in the codicil were carried through at a later point intime. This evidence, like much of the other evidence provided by Shelley, or Lawrence and James, really does not go the issue ofexercise of undue influence but, rather, issues of their relationship with each other from time periods that are not relevant to the undueinfluence allegation. [63] Shelley has failed to raise a genuine issue for trial that the respondents exercised power of Clementine and that it was theexercise of that power that resulted in the codicil being made in the fashion it was.

As I have stated earlier, the evidence of Mr. Neil,which is not contradicted, shows primarily that James and, to a lesser extent, Lawrence were involved in arranging for their mother tomeet with Mr. Neil for the purpose of changing the powers of attorney and the December 22, 2016, will. The evidence goes no furtherthan that, and indeed, it is clear by the procedures adopted by Mr.

Neil, he was satisfied there was not undue influence exerted upon herand that he was alive to that issue given her circumstances. [45] In Grosiak Estate (Re), 2008 SKQB 232, 317 Sask R 254 [Grosiak], this court discussed the types of evidencethat should be examined when determining the presence of suspicious circumstances that may lead to a finding of evidentiary foundationfor testamentary incapacity: 18 Therefore, when considering whether or not suspicious circumstances are present, the Court must look at the following factors: (1) the extent of physical and mental impairment of the testator around the time the will was signed; (2) whether the will in question constituted a significant change from the former 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. [ 46 ] I find the factors noted in the Grosiak decision are useful, though non-exhaustive, in providing some general focus to the court when determining whether certain behavior could also be considered to amount to undue influence. [ 47 ] From the above case law, I determine that the following five guidelines, in no particular order of importance, are useful in directing a court’s inquiry in determining the potential for undue influence upon a testator: a.

Any issue related to the testator’s vulnerability as a result of mental capacity to pain, drugs or illness must have a close temporal connection to the execution of the will. b. The circumstances leading up to the preparation of the will should be examined and need not have as close a temporal connection as the inquiry into the testator’s vulnerability as a result of mental incapacity. c.

An examination of the relationship between the testator and the individual who stands to benefit from the will including any evidence that the individual kept the testator apart from others or had the opportunity to control their movements. d. Is a new will or other testamentary document a significant change from previous testamentary documents? e. If so, does the new document make testamentary sense and/or is there a known valid reason for any change? 3.

Has the applicant adduced sufficient evidence to raise questions about undue influence? [ 48 ] Given this is the “first hearing” in a two-stage process, I must first determine whether Paul is able to adduce or point to some evidence which, if accepted at trial, would tend to suggest that undue influence was exerted upon the testator.

The case law suggests that actual evidence of undue influence is unlikely to be discovered and the court is more likely to rely upon suspicious circumstances which lead to potential reasonable inferences of undue circumstances. [ 49 ] In undertaking this analysis, I start by noting Rule 13-38(1) which states: Use of filed affidavits 13-38

(1) All affidavits that have been made and filed in any cause or matter may be referred to and used at any stage of the proceedings in any application in chambers. [ 50 ] Therefore, I will consider all the material that was filed in these various applications regarding the dispute over the will. [ 51 ] It is the position of the applicants that the following evidence constituted “suspicious circumstances” in the preparation of the July Will which led to Judy being unduly influenced by Carl so as to alter her April Will to benefit Carl to the exclusion of Juanita and Paul: a. the significant revision of Judy’s will in Carl’s favour and to the detriment of Juanita and Paul after only an elapsed period of three months from the making of the prior will; b. the inter vivos transfer of land from Judy to Carl and Judy jointly which would have the effect of a direct transfer to Carl once Judy passed away outside the ambit of any will.

Further, the evidence of Judy expressing in August 2021 to Juanita that the joint transfer to Carl was a “mistake” and that the property was supposed to be divided equally between Carl, Paul and Juanita so that an email was drafted to Jay Watson but never acted upon is also suspicious; c. due to her cancer diagnosis and thereafter taking prescribed narcotics and anti-anxiety medications, Judy was more susceptible to coercion and undue influence at the time of the preparation of July Will; and d.

Carl drove Judy to the appointment to execute and sign the July Will and “exerted significant pressure by constantly telling her she needed to sign it and yelling at her to get into the car before the appointment”. [ 52 ] While Carl disputes these contentions, given I am not to weigh evidence or assess credibility, I will not consider his explanations or alternate factual scenarios to these allegations at this stage.

It seems to me that the test at this point relating to the case at bar is simply to determine whether there is some evidence, which if accepted by the trial judge, could be capable of providing an evidentiary foundation for a trial judge to find that there was the exercise of undue influence on Carl’s part which causally led to Judy providing him with a greater beneficial interest in the July Will. [ 53 ] While I cannot weigh contradictory factual evidence, my examination of the relevant evidence does not occur in a vacuum.

In that regard, I will consider the evidence of Marianne Kramchynsky in my determination at this stage as her evidence is uncontroverted by all parties. Given the evidence was not “led” by either party, I find it is appropriate to consider it at this stage of the proceeding along with Paul and Juanita’s material. [ 54 ] That said, I am cognizant of the factual situation in McStay where the Court of Appeal determined there was conflicting evidence between the solicitor and Ms. McStay as to the mental capacity of the deceased.

From my review of the evidentiary record in this matter, no such conflicting evidence occurred here given there were no allegations that call Judy’s mental capacity into question on the day she signed the will. The fact that Paul is not questioning Judy’s testamentary capacity is also apposite in this

determination. [ 55 ] While I have outlined the four primary factors that will be relied on by the applicant to prove undue influence, there are many more lesser allegations made in the affidavits that I do not believe warrant a fulsome consideration under this rubric for various reasons.

I will deal with these various allegations summarily. [ 56 ] Firstly, I find that Paul’s affidavit evidence of May 10, 2022, contains nothing more than conclusory statements and opinions lacking any specific direct evidence that would, together or on its own, be capable of supporting a conclusion of undue influence on the part of Carl. As noted in the Bell decision, there must be an evidentiary foundation to support an individual’s position.

None exists related to this evidence. [ 57 ] Secondly, I find that much of Juanita’s affidavit evidence of January 10, 2023, is simply not helpful or relevant to address the question of undue influence for a number of reasons. I will detail her sworn allegations and my conclusions thereon: a. Her evidence of the July 25, 2021, breakdown is not relevant as it does not have a close proximal nexus to the date of execution of the July Will or the events leading up to it. There is also a lack of specificity in describing the nature of the breakdown that would relate to Judy’s mental capacity. b.

Her opinions of Judy’s mental capacity are irrelevant and not useful as she is not qualified to give a medical opinion and her statements are of a general undated nature. c. Her observations with respect to the visual hallucinations are not useful as they are undated without reference to the date of the execution of the July Will. d. Her base concerns with respect to Carl’s “undue influence” are irrelevant as there is no factual underpinning for those concerns. e.

All evidence related to the installation of the bedroom window has no relevance to the question of undue influence with respect to the July Will because the evidence lacks a temporal connection to the will and does not provide a causal link leading to a belief that Carl was coercing Judy in any fashion. The allegations against Carl in this context relate to him being cheap and uncaring. These

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