Estate of Gow, 2022 ABKB 750

Court of King’s Bench of Alberta Citation: Estate of Gow, 2022 ABKB 750 Date: 20221110 Docket: ES14 05515 Registry: St. Paul Between: Frances Neill and Logan Gow Applicants - and - Helen Millar and Sheryl Gow Respondents _______________________________________________________ Memorandum of Decision of the Honourable Justice L.K.

Harris _______________________________________________________ [ 1 ] This application came before the Court by way of a special chambers application, with affidavits and written and oral argument. [ 2 ] The Applicants seek an order setting aside a grant of probate and directing a trial to determine the issues of testamentary capacity of and undue influence over the Deceased, George Gow. The Respondents state that the application must be dismissed under Surrogate Rule 64. I. BACKGROUND [ 3 ] George Gow (the “Deceased”) passed away in March 2020.

He leaves four children: Helen Millar (“Helen”), Sheryl Gow (“Sheryl”), Logan Gow (“Logan”) and Frances Neill (“Frances”). The Deceased’s property was substantial, consisting of a farm

comprised of several quarter sections of land near Vermillion, Alberta, and cash and other property, totaling approximately $6.6 million. [4] The Gow farm consisted of 12 quarter sections of land near Vermillion, Alberta. It was owned by Gow Farms Ltd. (“GowFarms”). Up until 2016, all the shares in Gow Farms were owned by the Deceased and were to form part of his estate upon his passing. He had spent many years building the farm and working on it.

The parties are generally agreed that the Deceased’s wish was that GowFarms would remain in the family after his passing. [5] Logan had worked with his father on the farm from approximately 1987 to 2015. The three daughters did not work on thefarm, although Helen did the bookkeeping for the farm starting in about 2006. [6] The Deceased was in the habit of attending upon his long-time legal advisors regularly to re-evaluate his estate and themanner of its disposition upon his passing.

He executed a number of wills over the years. [7] In 2012 and 2014, the Deceased executed wills that left most of the farm to Logan, small bequests to his grandchildren, andsmall parcels of land and the residue to each of his three daughters. [8] In June 2015 the Deceased executed two wills which changed that disposition such that the farm was no longer to go toLogan, but instead, made up part of the residue of the estate that went to the three daughters. [9] Then, in September 2015, the Deceased executed another will, in which the farm was transferred to Helen and Sheryl.

A giftof $180,000 was left to Logan Gow to be paid over ten years, and a gift of $500,000 was left to Frances Neill. Additional smaller giftswere left to Frances’ children. [10] The Deceased’s last will, executed in September 2016, made some small changes to the prior will but the bequests were leftthe same.

The September 2016 will was submitted for probate, which was granted by an Order of this Court in May 2020. [11] Logan and Frances (the “Applicants”) apply to overturn the grant of probate on the basis that there are triable issues regardingthe Deceased’s lack of testamentary capacity to execute both the September 2016 will and the September 2015 will and regarding undueinfluence allegedly exercised by Helen and Sheryl over the Deceased, compelling him to leave most of his estate to them, to thedetriment of the Applicants. [12] Helen and Sheryl (the “Respondents”) say that there is no genuine issue for trial.

Not only should the application bedismissed, but they also say that the action should be dismissed altogether. II. GENERAL LEGAL PRINCIPLES [13] The parties agree that upon proof that a will was “duly executed with the requisite formalities, after having been read over toor by a testator who appeared to understand it, it will generally be presumed that the testator knew and approved of the contents and hadthe necessary testamentary capacity: Vout v Hay, (SCC) at para. 26. This is a rebuttable presumption.

A partyattacking the presumption of validity must raise a genuine issue for trial: Logan Estate (Re), 2021 ABCA 6 at para. 22. [14] The issue raised for trial requires an “evidentiary foundation” for a suspicion that the will does not represent the true wishesof the testator: Beimler v Kendall 2017 ABCA 117. The “genuine issue for trial” threshold is not high, and inconsistencies in theevidence can sometimes be resolved on the existing record through the application of the law: Logan Estate at para. 22.

The Court is totake a pragmatic approach to determining disputed factual issues on the record, provided it is fair and reasonable to do so: Logan Estateat para. 22. This is consistent with the approach taken in

summary disposition in civil matters: Kraczkowski Estate, 2017 ABQB 175. [15] The evidentiary threshold that must be met by an applicant has recently been addressed in Johnson v. Johnson, 2022 ONCA682, relying upon Neuberger v. York, 2016 ONCA 191 and Seepa v. Seepa, 2017 ONSC 5368. In Johnson beginning at paragraph 17the Court states: This is not a motion for

summary judgment requiring proof of the case on the merits or meeting the standard of a genuine issue requiringa trial. As Myers J. also succinctly stated in Seepa, at para. 35, “[a]t this preliminary stage, the issue is not whether the applicant hasproven his or her case but whether he or she ought to be given tools, such as documentary discovery, that are ordinarily available to alitigant before he or she is subjected to a requirement to put a best foot forward on the merits”.

In other words, a claimant should not beable to put an estate to the needless expense of steps, such as documentary discovery, unless he or she meets the minimal evidentialthreshold prescribed in Neuberger. Myers J. went on, at para. 39, to offer guidance as to the sufficiency of the evidence that an applicant should put forward to meet theminimal evidentiary threshold.

Drawing on the policy concerns and the culture change promulgated by the Supreme Court in Hryniak v.Mauldin, 2014 SCC 7, 366 D.L.R. (4th) 641, which apply to all civil cases, but are particularly important in estate cases that are at risk ofdepletion by needless and expensive litigation, he wrote: The scope of the court’s discretion under Rule 75.06(3) helps to assess the sufficiency of an “answer” to the “minimal evidentiarythreshold”. … In my view, the court ought to measure the evidence adduced by the applicant challenger against the evidence answeredby the proponent of the will and assess what, if any, processes are required to resolve any conflicts that the court cannot fairly resolve onthe record before it.

The court will be guided in making directions, as always, by the primary dictate to fashion a process that provides afair and just resolution of the civil dispute. A fair and just resolution process is one that is developed to meet the goals of efficiency,affordability, and proportionality that underpin all civil cases as directed by the Supreme Court of Canada in Hryniak. [Emphasis added.] We agree with this approach.

It also provides a complete answer to Nancy’s argument that there is potential procedural unfairness inthe Neuberger approach because, as applied by the application judge, it favours an executor who has exclusive access to relevant

information. As the underlined portion of Myers J.’s reasons indicates, the safeguard against the alleged risk of unfairness is the court’s consideration of the evidence presented by the parties and the assessment of its sufficiency for the purpose of determining whether the dispute before the court can be fairly resolved on the basis of the existing record. [ 16 ] The approach taken in Johnson was recently endorsed by our Court of Appeal in Duhn Estate , 2022 ABCA 360 . [ 17 ] This application is also governed by

section 11 of the Alberta Evidence Act , RSA 2000 c A-18 : Evidence in an action by heir, etc. 11 In an action by or against the heirs, next of kin, executors, administrators or assigns of a deceased person, an opposed or interested party shall not obtain a verdict, judgment or decision on that party’s own evidence in respect of any matter occurring before the death of the deceased person, unless the evidence is corroborated by other material evidence. [ 18 ]

Section 11 requires corroborative evidence of a “material character supporting the case to be proved.” The evidence must assist the court in believing the material statements of the parties: Logan Estate at para. 17. III. TESTAMENTARY CAPACITY [ 19 ] The requirements for testamentary capacity are that the testator must understand (

a) the nature and effect of a will, (

b) the nature and extent of one’s assets, and (

c) those in one’s life that one should consider when making testamentary dispositions: The test for testamentary capacity is a legal test, task specific, and time specific: Capacity is to be assessed both when instructions are given and when the will is executed. The appellant’s challenge misses the point. There is no dispute that Margaret was exhibiting signs of Alzheimer’s disease – indeed the uncontested medical diagnosis was that she was in the early stages of it. The issue is whether the disease affected her cognitive abilities such that she did not have testamentary capacity ( Stevens v.

Crawford , 2001 ABCA 195 at para. 46 ). [ 20 ] One does not need to have the highest standard of mental functioning in order to possess testamentary capacity. Rather, the mind and memory must be “sufficiently sound” to enable the testator to know and understand the business in which he or she was engaged at the time the will is executed ( Banks v Goodfellow [1961-73] All ER Rep 47 at 57).

If there is a disease of the mind, then the question becomes whether the disease actually had an influence or affect the disposition actually made ( Weidenberger Estate, Re , 2002 ABQB 861 at para. 47 ). [ 21 ] In 2012, the Deceased attended his lawyer to discuss estate planning. On October 23, 2012, he wrote a memo which stated: “At this time Logan owes my corporation the sum of $367,862.88. I expect that this sum will be repaid plus interest. In the event of my death prior to repayment the assets to be transferred to Logan under my Will are not to be transferred until he makes arrangements for payment.

I have attached details of the balance owing.” [ 22 ] Attached to the memo was a handwritten note providing details of the debt, including bills paid by Gow Farms, rent, interest and security for a farm loan. [ 23 ] The Deceased prepared a will in 2012 which left the majority of Gow Farms to Logan.

The three daughters were treated equally amongst themselves, but each were gifted a substantially smaller sum of their fathers’ estate as compared to Logan. [ 24 ] Logan says in his affidavit sworn in support of his application that his father never raised the issue of repayment with him and never expressed any concern or displeasure about funds not being repaid. [ 25 ] Logan also says that beginning in about 2009, the Deceased was involved in three single vehicle accidents on the farm, and that he struggled mildly with decision making.

In 2012, the Deceased fell several times walking on uneven ground and was frequently dizzy. In the fall of 2013, it was agreed (although the evidence is unclear as to who agreed) that the Deceased could not operate machinery safely. [ 26 ] In 2012, the siblings’ mother (from whom the Deceased had been divorced for many years) was diagnosed with dementia and moved into an assisted living facility. This move seemed to cause friction between Sheryl and Frances, although the reasons for that are not clear.

Following this episode, Sheryl and Frances’ relationship was virtually non-existent. [ 27 ] The Deceased was a snowbird and travelled to Palm Springs every winter between October to April. According to Frances, the Deceased told her that in 2013 he became lost on the drive down, even though he had been driving that route since 2005.

In 2014, Frances needed to give the Deceased directions from Leduc to Vermillion following a family dinner, a route he was well familiar with. [ 28 ] In January 2015, while he was in Palm Springs, the Deceased was found by a friend suffering from confusion, slurred speech, and difficulty walking. He was 78 years old at the time. The Deceased was admitted to hospital. The physicians performed several tests, including a CT scan and an MRI although no significant issues were found. A psychiatrist was consulted, whose impression was that the Deceased most likely suffered from vascular dementia.

The hospital discharged the Deceased on February 2, 2015, to be transported back to a hospital in Canada with a medical escort. [ 29 ] Upon his return to Canada, the Deceased was admitted to the Wainwright Regional Health Center. He underwent a geriatric assessment on February 6, 2015. It is clear from that report that the Deceased provided a medical history to the assessor. The assessor concluded that the Deceased had developed multiple cognitive deficits manifested by memory impairment and cognitive disturbances, which affected his executive functioning and orientation. The assessor states,

“These deficits have caused a significant impairment in his social and occupational functioning and represent a decline from previous level of functioning.” [ 30 ] The provisional diagnosis was “unspecified neurocognitive disorder” as there was no evidence to support a specific diagnosis and he did not meet the criteria for any other disorders.

A treatment plan was provided, and Logan was advised to activate the Deceased’s Power of Attorney. [ 31 ] The Deceased was discharged from hospital on February 17, 2015, with a final diagnosis of “psychotic/confused episode while in the United States requiring air evacuation back to Canada, no specific diagnosis made so far, atrial fibrillation and over- anticoagulated on return on warfarin.” Following discharge, he was followed by his family doctor in Vermillion, Dr. Hay. According to Dr.

Hay, the Deceased made a “good recovery”. [ 32 ] The Deceased’s driver’s license was ultimately rescinded because of his medical episode. [ 33 ] In April 2015, the Deceased decided to rent the farm to a third party. This decision resulted in a fractured relationship with Logan. Logan acknowledges that his father’s decision to rent out the farm irreparably changed his relationship with his father, although he professes surprise at his father’s decision and seems to insinuate that this decision was reflective of his father’s developing poor judgment.

Logan had little interaction with the Deceased following the spring of 2015. Frances confirms the falling out between Logan and the Deceased because of the decision to rent to a third party. Frances also confirms that one of the reasons her father no longer wished to farm with Logan was Logan’s failure to pay rent. [ 34 ] In the face of evidence that many people surrounding the Deceased, including Frances, Helen, Dr.

Hay and John Reynolds were aware of the Deceased’s belief that Logan owed Gow Farms a significant amount of money, I prefer that evidence over the evidence of Logan on that point. [ 35 ] Further context to that decision and general observations as to the Deceased’s cognitive functioning is provided through the affidavit of the Deceased’s long-time legal advisor, John Reynolds. Mr. Reynolds met with the Deceased several times in 2015, beginning in June. The Deceased discussed with Mr. Reynolds the fact that he had suffered a medical event in Palm Springs.

The Deceased had decided to no longer farm with Logan, and he was very concerned over a large tax liability projected by his accountant and how that would impact upon his hope to leave Gow Farms to Helen and Sheryl. The Deceased provided Mr. Reynolds with detailed instructions on changes to his will, and Mr.

Reynolds was satisfied that the Deceased had testamentary capacity in that he was perfectly oriented, presented well, clearly thinking carefully about changes to his will, the nature and extent of his assets, his family members, and the consequences of the changes he wished to make. [ 36 ] In addition to meeting with Mr. Reynolds, the Deceased met with his accountants at Wilde & Company and with counsel at Felesky & Flynn to discuss his estate and corporate plans.

They held discussions regarding changes to his corporation and his will, which involved leaving Gow Farms to Sheryl and Helen, increased cash bequests to Frances and her children totaling $800,000, and a trust for Logan. Voting shares in Gow Farms were transferred to Sheryl and Helen effective 2015 to mitigate tax liabilities. The culmination of these discussions was the Deceased’s will signed in September 2015. [ 37 ] Around the same time, the Deceased had discussions with Dr. Hay about Gow Farms, the financial state of the farm and tensions with Logan. Dr.

Hay recorded in his chart that the Deceased had expressed to him that Logan “owes him ½ million”. Dr. Hay also felt that the Deceased had made a good recovery from the medical episode in Palm Springs earlier that year. [ 38 ] In July 2016, the Deceased underwent a geriatric assessment which noted that while in Vermillion, the Deceased was living independently in a condominium downtown, and was independent in basic activities of daily living.

He had continued to travel to Palm Springs, and that he “was a delightful 80-year-old gentleman, currently residing independently and functioning very well compared to his age-matched peers.” The Deceased was successful in passing a road test and ultimately had his driver’s license reinstated. [ 39 ] In September 2016, the Deceased made some changes to his will, but did not alter the dispositions to each of his children. By that time, Mr. Reynolds was retiring, and the Deceased was receiving estate planning advice from Walter Flemke. Mr.

Flemke has sworn an Affidavit stating that there were clear instructions given to him in 2016 and that the only reason for revising the previous will was “to make it even more clear that he intended Logan Gow’s bequest to be what it was and clearer that Helen Millar and Sheryl Gow were to get his corporation”. [ 40 ] In 2018, the Deceased underwent testing to renew his driver’s license. Dr. Al-Shalchi noted that “Mr. Gow has been diagnosed with mild cognitive impairment with slight short-term memory loss. His condition has been stable since his last driver’s medical examination.

He does still have a very sound cognition and excellent comprehension and safe reflect response.” [ 41 ] The Deceased maintained his driver’s license until he passed away in March 2020. [ 42 ] The Applicants argue that there is sufficient evidence of the Deceased’s lack of testamentary capacity to raise a triable issue as to the validity of the September 2015 and September 2016 wills. They point to the Deceased’s motor vehicle accidents and accidents on the farm leading up to 2015, and the Deceased’s problems with decision making and recall between about 2013 and 2015.

The Applicants point to the Deceased’s medical episode in early 2015 as evidence that he suffered from dementia rendering the Deceased incapable of understanding the changes he made to the bequests to his four children.

They also argue that the fact that the 2015 will was drastically different from previous wills in which Logan received a substantial amount of the estate is evidence that the Deceased did not possess testamentary capacity when he executed the 2015 will. [ 43 ] There is no doubt that in 2015 and 2016 the Deceased was suffering from advancing age, with several symptoms and side effects that one may expect, including declining balance, cognitive effects and a medical episode causing confusion, memory impairment and cognitive disturbances affecting his executive functioning and orientation.

Even when taken together with Logan’s evidence regarding the Deceased’s physical and mental challenges however, there is no evidence that these symptoms, side effects and

challenges resulted in a lack of testamentary capacity at the time the September 2015 will or 2016 will was executed. Indeed, theevidence seems to establish that the Deceased largely recovered from the medical episode and experienced only mild or transitorysymptoms thereafter. The Deceased’s family physician notes that the Deceased had made a good recovery from his medical episode inearly 2015, not noting any concerns with the Deceased’s testamentary capacity. The Deceased’s legal and financial advisors similarlynoted no concerns with testamentary capacity.

According to them, the Deceased could provide reasonable instructions given all thecircumstances, which included the Deceased’s concerns over an impending tax liability for the farm and his decision to no longer farmwith Logan. [44] In the face of substantial evidence regarding the Deceased’s capacity to know and understand the business in which he or shewas engaged at the time his wills were executed, Logan and Frances’ evidence regarding mobility issues and occasional confusion islimited to just that – mobility issues and occasional confusion.

That evidence does not speak to whether those issues actually had aninfluence or affect the disposition actually made. [45] Further, one can infer from the evidence provided by the legal and financial advisors that they would have properly carried outtheir duties as solicitors and financial advisors and would not have permitted the Deceased to execute the September 2015 will or the2016 will if they had any concern about his capacity or suspected undue influence: see Johnson at paragraph 14. [46] A mere diagnosis of dementia, even if one accepts that the Deceased here received such a diagnosis in March 2015, withoutmore, does not determine the question of capacity; to hold otherwise risks falling into impermissible stereotypes about individuals withmental health and other challenges: Lewis v.

Lewis, 2019 ONCA 690, at para. 6. As stated in Petrowski v. Petrowski Estate, 2009ABQB 196 at paragraph 294, as a matter of law, evidence of a possible impairment of mental capacity will not disprove testamentarycapacity. A testator who is found incompetent to manage his own affairs does not necessarily lack testamentary capacity.

This“emphasizes the care with which we must look at suspicious circumstances so as not to deprive a senior person of the ability to make alast will and testament even when they are frail.” (Petrowski Estate at paragraph 295). [47] In this case, there is nothing “more” to cause me to conclude that the medical episode in early 2015, or any of the othersymptoms, caused the Deceased to lack testamentary capacity in September 2015 or September 2016. [48] The Applicants’ argument regarding the Deceased’s testamentary capacity amounts to speculation arising from their ownanecdotal evidence based upon what they observed of their father at particular times.

That evidence is refuted by the evidence of theDeceased’s medical, legal and financial advisors who were better placed to provide actual evidence of the Deceased’s capacity at thetime the Deceased executed the 2015 and 2016 wills.

I prefer the evidence of the Respondents, and the Deceased’s medical, legal andfinancial advisors as it directly addresses the issue of testamentary capacity and supports the conclusion that at the time the Deceasedexecuted the September 2015 and 2016 wills, he in fact had testamentary capacity. [49] While the Applicants argue that the significant changes made by the Deceased to his bequests to his children in 2015 areevidence of his lack of capacity, I find that those changes are in fact indicative of a capable mind.

Circumstances had changed for theDeceased and his relationship with Logan in that the Deceased had decided to no longer farm with Logan in the face of a significant debtowed by Logan to the farm. This was coupled with the fact that the farm was facing a significant tax liability that needed to be dealtwith. Given the Deceased’s desire to keep the farm in the family as much as possible, his decision to transfer the voting shares in thefarm to the Respondents, increase his cash bequest to Frances and establish a trust for Logan is consistent with the circumstances hefound himself in.

The totality of this evidence discloses a rational and entirely understandable reason for the Deceased to have prepared anew will in 2015 to change the nature of the bequests to Logan and Francis. [50] Put another way, the evidence does not corroborate the Applicants’ assertions that the Deceased lacked testamentary capacity. [51] I find that the Applicants have not raised a triable issue with respect to the Deceased’s testamentary capacity at the time his2015 and 2016 wills were executed. IV.

UNDUE INFLUENCE [52] Undue influence is “the ability of one person to dominate the will of another, whether through manipulation, coercion oroutright but subtle abuse of power.” (Geffen v. Goodman Estate, (SCC). Coercion, manipulation, or pressure is exertedsuch that it overpowers the volition of the testator.

Put another way, the will is no longer the will of the testator, but that of anotherperson. (Re Kozak Estate, 2018 ABQB 185) [53] The Applicants argue that the circumstances surrounding the preparation and execution of the September 2015 will and theDeceased’s passing raise a triable issue as to whether the Respondents exercised undue influence over the Deceased, resulting in theDeceased leaving a substantially increased proportion of his estate to them. [54] The Applicants state that after the medical episode in early 2015, they were excluded from “all dealings with the Deceased”,including involvement with his health care and residency, and that they were not immediately advised when the Deceased was admittedto hospital just prior to his death in 2020. [55] The Applicants also point to the fact that Helen appeared to have been very involved with the discussions between theDeceased and his various advisors in 2015 and 2016, which included appointments arranged by Helen for the Deceased, Helen beinginvolved in discussions surrounding the transfer of the common shares of Gow Farms to her and Sheryl, and notes to the effect that Helenwould explain things to her father. [56] The Applicants rely upon Geffen to argue that undue influence may be presumed in relationships where there is the potentialfor domination or influence, such as the relationship between a parent and child.

However, Geffen does not go so far as to support thisargument, nor do other case authorities decided after Geffen. Geffen does not consider a situation involving a parent-child relationship in

the context of a testamentary bequest. In Petrowski Estate , Moen, J. states that presuming undue influence in the context of any child and parent relationship is “entirely unreasonable”. [ 57 ] The burden of establishing undue influence remains with the Applicants here. Again, the Applicants’ argument that Helen exercised undue influence is based upon speculation given her involvement with her father and builds upon the medical episode of early 2015. The evidence does not go so far as to establish a triable issue here.

The evidence shows that around the time the Deceased executed the 2015 and 2016 wills, he was largely independent, had ready access to legal, medical, and financial advisors, some of whom knew the Deceased well over a significant period of time, and that the Deceased gave their advice careful consideration when planning for his death, took active steps to have his driver’s license reinstated, and continued to travel to Palm Springs in 2015-2016. [ 58 ] Although Helen did indeed appear to be present and involved in her father’s meetings with his advisors to a certain extent, the evidence does not establish that this amounted to undue influence.

Rather, such assertion ignores persuasive evidence that: • The Deceased had ready access to financial and legal advisors, some of whom had provided the Deceased with advice for many years, certainly prior to any allegations of wrongdoing. • The Deceased could voice various concerns and organized his affairs in such a way as to mitigate those concerns as much as possible.

As examples, the Deceased was concerned over the financial mismanagement of the farm by Logan, resulting in a large debt owed by Logan to the farm, an ongoing income stream during retirement, tax liabilities incurred by the farm and structuring his estate such that it maximized the chances of keeping the farm in the family. [ 59 ] Considering the totality of the evidence, Helen’s presence during certain discussions is more reflective of the assistance she provided her father as an attentive and loving daughter rather than undue influence. [ 60 ] The Respondents have also provided credible evidence refuting the Applicants’ assertion that they were isolated from their father.

There was nothing that prevented the Applicants from reaching out to their father, as evidenced by Francis’ phone call with him on his birthday, and instructions provided to hospital staff at the Wainwright Hospital to notify Logan should the Deceased’s condition worsen.

Their lack of contact with the Deceased was instead driven by Francis’ own decision and the fractured relationship between Logan and his father. [ 61 ] I find that the Applicants have not raised a triable issue with respect to whether the Respondents exercised undue influence over the Deceased to compel him to bequeath the majority of his estate to them. V. CONCLUSION [ 62 ] As the Applicants have failed to establish a triable issue, the application is dismissed, with costs to the Respondents. Heard on the 3 rd day of February, 2022. Dated at the Town of St. Paul, Alberta this 10 th day of November, 2022. L.K.

Harris J.C.K.B.A. Appearances: Marco Poretti Reynolds Mirth Richards & Farmer LLP for the Applicants Helen Ward Duncan Craig LLP for the Respondents