2022 MBKB 192, 2022 MBKB 192

Date: 20221014 Docket: PR 18-01-10086 (Winnipeg Centre) Indexed as: Estate of Walter Konyk Cited as: 2022 MBKB 192 COURT OF KING’S BENCH OF MANITOBA B E T W E E N: ) Appearances : ) ) ) Dana J. Nelko and Amelia M. Peterson , ) for the applicant IN THE ESTATE OF WALTER KONYK, ) ) Sherry D. Brown , Deceased. ) for the respondents ) ) JUDGMENT DELIVERED: ) October 14, 2022 Corrected Judgment: An Erratum was issued on October 28, 2022. The text of the initial judgment is reproduced here with the corrections, and the Erratum is appended at the end of this Corrected Judgment. SUCHE J.

INTRODUCTION [ 1 ] Walter Konyk died on February 14, 2018 at age 82. He left a will dated February 27, 2017 naming his wife Moneca as sole beneficiary and executrix of his estate. [ 2 ] The Konyks were married for almost 21 years. They first met in 1980 when they were both working at a jewellery store. They lost touch when Moneca changed jobs and Walter retired, but in 1995 Walter came to see Moneca where she was working. They started dating shortly after, and became engaged a year later at which time Moneca moved into Walter’s house. They married in 1997. She was 47 and he was 59.

This was a first marriage for Walter. Neither of them had children. Walter’s parents and only sibling were already deceased. [ 3 ] Aside from Moneca, Walter’s closest surviving relatives are six first cousins once removed, including Glenn Fraser and his sister Jackie Logen. Glenn appears to be the only one with whom Walter maintained a relationship subsequent to the deaths of their respective parents. [ 4 ] Glenn is the son of Walter’s first cousin. He lives in Toronto and is an accountant and senior partner at a national accounting firm. Glenn met Walter in 1987 just after his father’s death.

Glenn says that over the years, he and Walter became very close and Walter was like a father to him. Glenn was an usher at Walter and Moneca’s wedding and they attended Glenn’s wedding in 2002. They also visited Glenn and his family several times thereafter. Walter attended Glenn’s mother’s funeral in 2009. Glenn visited Walter three or four times in Winnipeg, the most recent of which was in July 2017. Glenn also spoke at Walter’s funeral. [ 5 ] Glenn and Walter also spoke on the phone.

Glenn says they talked mostly about investing, the financial markets and politics; Walter discussed his personal holdings, sought Glenn’s advice, and kept him abreast of his assets and finances. Sometimes they spoke of Walter’s personal situation. [ 6 ] Walter worked as a jeweller, but he was also a self-taught investor. He was keenly interested in the financial markets and taxation issues and kept himself well informed through reading, watching business channel TV shows, and discussions with his financial advisors and his accountant. He was cautious in his investments, and conscious of tax considerations.

He was extremely frugal and very meticulous. Until some years before his death, he conducted his investment transactions himself.

[ 7 ] Moneca had her own investments. She also owned a condo in Kelowna, and had a pension. They were a fraction however, of Walter’s holdings. [ 8 ] Subsequent to his marriage to Moneca, Walter executed at least three wills. The first that was produced in evidence was dated January 2002. Glenn was named executor, and a friend of Glenn’s was the alternate executor. The estate was to be held in trust for Moneca for her lifetime. She was to receive the income from the estate of at least $75,000 per year. If the income generated was less in any year, the estate would pay her the difference.

She was also given a life interest in the house. Upon her death, Glenn and Jackie would receive the residue. [ 9 ] The will directed the executor to invest in keeping with Walter’s investment style, as it was specifically described. [ 10 ] Walter made another will in November 2006. It was very similar. The minimum income of $75,000 was now indexed for cost of living. Moneca was gifted Walter’s car and the contents of the house. No mention was made of the house itself, but Walter added Moneca as a joint owner on the title a few weeks later.

Glenn remained the executor, but the direction on investing was replaced with a direction to consult with Moneca with respect to any investments in advance of making them. Glenn and Jackie remained the residual beneficiaries. [ 11 ] In February 2017, Walter executed the will in issue. There is no spousal trust and Moneca is the sole beneficiary and executrix. Glenn is the alternate executor, and Carole McElheran, whom the will describes as “my friend”, is the further alternate executrix. Specific gifts go to Moneca’s church and a number of individuals, including McElheran.

The residue is divided among those individuals. Glenn and Jackie are not mentioned. [ 12 ] Glenn asserts that the 2017 will is not valid because Walter lacked testamentary capacity, and/or it was the result of undue influence by Moneca. He also alleges it was prepared under suspicious circumstances. [ 13 ] For the reasons that follow, I am satisfied that the will was not prepared under suspicious circumstances and Glenn has failed to establish that Walter was unduly influenced by Moneca in making his 2017 will.

PROCEDURAL ISSUES Is a trial required ? [ 14 ] This application proceeded by way of affidavit evidence with oral argument.

The former consists of affidavits of Moneca and Glenn; Tanis Jury, the lawyer who prepared the 2017 will; Catherine Ayotte and James Kilgour, being Walter’s financial advisor and accountant respectively; his family doctor and a dermatologist who treated Walter; transcripts of the cross-examinations of each of them, as well as transcripts of out-of-court examinations of two of Walter’s long-time friends were also filed. [ 15 ] The parties submitted lengthy briefs, and oral argument occurred over a day and a half. At the conclusion, I asked the parties to address two evidentiary issues.

They subsequently submitted further written argument on these points. [ 16 ] In his brief, and then again after concluding his oral submissions on the merits of the application, Glenn requested that I direct a trial of the issues. His lawyer argued there are substantial disputes of fact that can only be resolved through findings of credibility. This requires a trial. [ 17 ] Manitoba Court of King’s Bench Rule 38.09 states: On hearing an application, a judge may, (

a) allow or dismiss the application or adjourn the hearing, with or without terms; or (

b) where satisfied that there is a substantial dispute of fact, direct that the application proceed to trial or direct the trial of a particular issue or issues and, in either case, give such directions and impose such terms as may be just, subject to which the proceeding shall thereafter be treated as an action. [ 18 ] A “substantial dispute of fact” in this context is one that concerns an issue that must be determined and can only be resolved through a finding of credibility. [ 19 ] In Janz et al v.

Janz et al , [1] Beard JA explained (at para 37): Before a motion judge can direct the trial of an issue or issues, he must be “satisfied that there is a substantial dispute of fact” pursuant to r 38.09(b). Duval J explained the application of this criterion in Smith Estate , Re , 2011 MBQB 49 , 263 ManR (2d) 89 (at para 52 ): It is, therefore, incumbent on the court to consider whether there is a substantial dispute of fact(

s) requiring credibility determinations in respect of the issues raised on this application prior to directing a trial of the issues. A determination as to whether there is sufficient merit in the challenge to warrant a trial requires this court to firstly consider, in a

summary manner, the evidence led in respect of the issues, and to determine whether that evidence is contradictory and requires a credibility determination.

[20] In the earlier decision of Garwood v. Garwood Estate,[2] Hamilton J.A., writing on behalf of the court, described the approach todeciding substantial dispute of fact. She states (at para 57): Perhaps the most helpful decision is Verbonac Estate, Re (1997), (SK QB), 159 Sask.R. 299 (Q.B.), which alsoinvolved an application to revoke a grant of probate. Due to issues of credibility, Laing J. directed a full trial. His explanation as towhen a trial is required is pertinent to this case (at paras. 9-11): In a recent decision of this court, Dieno (Inez) v.

Dieno (Jacob) Estate, (SK QB), [1996] 10 W.W.R. 375; 147 Sask.R.14 (Q.B.), Baynton, J., outlined the procedure a Chamber’s judge should follow in applications which seek to revoke a grant of probate. While the foregoing case involved the testamentary capacity of the testator, the procedure outlined therein applies equally to any otherform of challenge to a will that has been proven in common form. At p. 19, Baynton, J., stated: An application in Saskatchewan to challenge a will on the basis of testamentary incapacity potentially involves two levels of hearings.

The first is a Chambers hearing to determine if there is sufficient merit in the challenge to warrant a trial. The second (if the applicant issuccessful) is a trial hearing to determine the issue itself. The issue before the court at either level is the same. The main difference isthe scope of the hearing, the ability to determine credibility respecting contradictory evidence, and the relief that is granted. TheChambers 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 someevidence adduced by the applicant that tends to negate capacity. Evidence adduced by the proponents of the will must also beconsidered. The onus on an applicant at the Chambers level is to adduce evidence in affidavit form, which if accepted at trial, could entitle thechallenge to succeed.

If the evidence is uncontradicted, the Chambers judge should decide as a matter of law whether that evidencejustifies the relief being requested. Where the evidence of the applicant is contradicted by the respondent, and but for the contradiction,the evidence led by the applicant could justify the relief being requested, then as noted by Baynton, J., in the Dieno Estate, supra, at p.21: ...

But where contradictory evidence is adduced, especially where findings of credibility will have to be made, the only realistic optionfor the Chambers judge is to direct a trial. … ... [emphasis in original] [21] In Janz, Beard JA also made the point that the principle of proportionality laid out in Hryniak v. Mauldin [3] must be applied inthis situation. She states (at para 49): To give full meaning to the principle of proportionality as it relates to r 38.09(

b) requires that a court take a hard look at the evidence thatis presented to ensure that it discloses a substantial dispute of fact before directing a trial of an issue. This certainly entails more than afinding that, if a party alleges a disagreement on an issue, a trial should be ordered. It must also permit some weighing of the evidence todetermine whether an apparent dispute of fact is truly substantial or whether it disappears when the relevant evidence is examined.

Ifevery minor dispute of fact requires that an issue be directed for trial, the rule will not fulfil the ultimate goals of reducing cost and delayand thereby increasing access to justice. That said, once a substantial dispute of fact is identified, that dispute is not to be resolved by themotion judge but is to be referred for trial. [22] As implied in this passage and is the practice in this court, the question of whether a trial is necessary should be decided on thefirst appearance, or at least early in the proceedings.

Not as happened here, after all affiants have been cross-examined, and followingboth written and oral submissions on the merits. To state the obvious, ordering a trial after all this is a poor use of court time, and createsunnecessary cost. It offends the principle of proportionality in the most egregious way. [23] Having said this, the very lengthy cross-examinations of the witnesses has produced an extensive exploration of the facts. Likethe situation in Janz, the parties have had the opportunity to respond to the other, and to have their evidence tested. I doubt a trial couldproduce anything new.

In and of itself, this is a reason to conclude a trial is not necessary. [24] In addition, when I consider the question asked in Verbonac Estate while using the Hryniak “hard look” - namely, does theevidence Glenn relies on justify a trial? I conclude the answer is no.

[ 25 ] I say this because that evidence falls short of the allegations. Further, while there are factual disputes, the main one being between Moneca and Glenn, I conclude that when examined in light of the other evidence, they are not critical to deciding the issues. I will say more about this below. [ 26 ] In the result, I find there are no substantial disputes of fact before me. Hearsay evidence [ 27 ] Both parties rely on various statements made by Walter prior to his death. Some are hearsay – being out of court statements by a non-witness presented for the truth of their contents.

Several advanced by Glenn are the basis for his allegations of suspicious circumstances and undue influence by Moneca. Others are of little or no consequence to the issues. The question then is whether those of value are admissible. [ 28 ] The current state of the law regarding hearsay evidence was set by the Supreme Court in R. v. Khelawon , [4] and most recently refined by R. v. Bradshaw . [5] Hearsay evidence is now approached on a case-by-case basis using the principles of necessity and reliability.

Necessity is not an issue here, given that Walter is deceased. [ 29 ] Reliability has two components; the first being threshold reliability which determines admissibility. The focus is on the declarant and the circumstances in which the statement was made. Ultimate reliability, which focusses on the witness who claims to be the recipient of the statement, determines the weight to be given to the evidence. [ 30 ] In the case of threshold reliability, the court must be satisfied that there are sufficient “circumstantial guarantees” of reliability to overcome the absence of cross-examination.

This includes whether the declarant had a motive to lie, the occasion on which the statement was made, the nature of the information and the relationship to the person to whom the declarant was speaking.

Some evidence corroborating the material aspects of the statement is necessary. [6] [ 31 ] The traditional exceptions to hearsay, such as statements of present intention, or those concerning bodily and mental feelings, remain prima facie admissible, provided although they must appear to have been made in a natural manner and not under circumstances of suspicion. [7] [ 32 ] I address the admissibility of those hearsay statements I consider of some evidentiary importance when discussing the issues to which the evidence relates.

Use of journal articles [ 33 ] Glenn wishes to rely on two articles from medical journals to support his claim that Walter lacked testamentary capacity. The first, The Test of Time: A History of Clock Testing was marked as an exhibit for identification during Dr. Sikora’s cross-examination.

However, he was not asked to comment on it, or even if he had ever read it. [ 34 ] The second, The Myth of a Heirarchy of Decisional Capacity: A Medico-Legal Perspective was included in Glenn’s authorities. [ 35 ] Academic articles are presumptively hearsay unless the expert who is providing opinion evidence relies on them to support their conclusion. [8] Only when an

article is put to an expert who has expressed a view and the contents of the

article are acknowledged, can it be used to attack an opinion expressed by an expert. Neither of these conditions were met here. I have therefore not considered either article.

SUSPICIOUS CIRCUMSTANCES [ 36 ] The law is well settled that upon proof that a will was properly executed with the requisite formalities, after the will having been read to or by a testator who appeared to understand it, it is generally presumed that the testator knew and approved of the contents and had the necessary testamentary capacity. [9] [ 37 ] If suspicious circumstances are present however, the presumption is “spent” and the propounder of the will reassumes the legal burden of proving knowledge and approval.

In addition, if the suspicious circumstances relate to mental capacity, the propounder of the will also has the legal burden of establishing testamentary capacity. [10] [ 38 ] Suspicious circumstances may arise from (1) circumstances surrounding the preparation of the will; (2) circumstances tending to call into question the capacity of the testator; or (3) circumstances tending to show that the free will of the testator was overborne by acts of coercion or fraud. [ 39 ] Sopinka, J., writing for the court in Vout v.

Hay , explained the interplay between the presumption and suspicious circumstances (at para 27): …. The presumption simply casts an evidentiary burden on those attacking the will. This burden can be satisfied by adducing or pointing to some evidence, which, if accepted, would tend to negative knowledge and approval or testamentary capacity. In this event, the legal burden reverts to the propounder. [ 40 ] Generally, the relevant factors in deciding if suspicious circumstances exist include:

• whether the will in question constituted a significant change from a former will • the extent of any physical and mental impairment of the testator around the time the will was signed • whether the will in question generally seems to make testamentary sense • the circumstances surrounding the making of the will • whether a beneficiary was instrumental in the preparation of the will [11] Testamentary capacity [ 41 ] The legal test for capacity to make a will was first established over 150 years ago. [12] In Schwartz v.

Schwartz , [13] the Ontario Court of Appeal offered a modernized version of it: …T he testator must be sufficiently clear in his understanding and memory to know, on his own, and in a general way (1) the nature and extent of his property, (2) the persons who are the natural objects of his bounty and (3) the testamentary provisions he is making; and he must, moreover, be capable of (4) appreciating these factors in relation to each other, and (5) forming an orderly desire as to the disposition of his property: see Atkinson on Wills (1953), 2nd ed., p. 232; 39 Hals., 3rd ed., pp. 855-6. [ 42 ] Importantly, a testator may have testamentary capacity despite evidence that his mental faculties have been debilitated to some extent. [14] Binder J. in Scramstad v.

Stannard [15] put it this way (at para 131): ...the adoption of an overly strict test could and probably would result in many testators, especially the elderly, being stripped of the right to dispose of their assets as they see fit. … He added (at para 136): In my view, it is important to keep in mind at all times the instruction contained in Goodfellow, supra , to the effect that: just because a person’s mind and memory is not what it used to be, does not mean that such person lacks testamentary capacity; the test to determine testamentary capacity is not therefore one of certainty or satisfaction beyond a reasonable doubt. [ 43 ] Here, Glenn acknowledges that the formalities of the will have been met.

He alleges the following facts create suspicious circumstances: • Moneca was instrumental in the preparation of the will • the changes in Walter’s estate plan were sudden and do not make testamentary sense given Walter’s close and caring relationship with Glenn and the unhappy relationship between Walter and Moneca • the alternate beneficiaries are Moneca’s church and her friends • Walter’s physical and mental health at the time of the will suggest he lacked testamentary capacity, or at least was susceptible to undue influence by Moneca The circumstances surrounding the making of the Will [ 44 ] The circumstances surrounding the 2017 will are described in the evidence of Catherine Ayotte (“Ayotte”) and Tanis Jury.

Ayotte had been one of Walter’s financial advisors since the late 90’s. For most of this time, she was in a junior position working with Maurice Bohemier (“Maurice”). When Maurice retired in 2015, she took over as Walter’s principal advisor. [ 45 ] The background begins with a conversation between Ayotte and Walter in the fall of 2016. Ayotte spoke with Walter frequently, usually at his instance. His portfolio by then was essentially dividend-generating stocks; some paying monthly, some quarterly. He would call her when he received his bank statement showing that dividends had been deposited.

He would review the details with Ayotte. [ 46 ] In one of these calls, Ayotte informed Walter of an announcement by the federal government that it was changing its taxation policy regarding trusts. Although she knew nothing about the contents of Walter’s will, Ayotte was aware that Maurice favoured spousal trust as part of an estate plan due to the lower taxation rate, and many of his clients used them. As a result, she was raising the issue with all of her clients. [ 47 ] A few weeks later, Walter called and arranged to meet with Ayotte on November 25th.

He specifically mentioned that he would be meeting with her alone, and Moneca would join them later.

[ 48 ] In that meeting, Ayotte and Walter discussed the structure, although not the details of his will. She learned it included a spousal trust for Moneca, Glenn was the executor, and Glenn’s friend, whom Walter said he had only met once, was the alternate executor. Walter told her that Glenn was his cousin and described him as a “very bright and successful accountant” who lived in Toronto. [ 49 ] Ayotte asked Walter about his choice of executor. He explained that when he first chose Glenn, he and Moneca had only been married for five years.

At the time, he felt Moneca would not be able to manage the estate on her own. [ 50 ] During the meeting, Walter mentioned his will provided compensation of $10,000 to the executor. In response, Ayotte raised several issues. She told him the compensation to the executor was not reasonable. She explained that regardless of what the will said, absent an agreement otherwise, the court would allow an executor to be compensated according to a fixed schedule. She also pointed out that the role of a trustee was separate and apart from that of executor and the trustee would be entitled to compensation.

Ayotte said it was clear to her that Walter did not want to incur either executor or trustee fees. [ 51 ] Walter also told her his will was made ten years earlier. She reminded him that in 2005 his portfolio was worth approximately $3.2 million and had grown considerably since. Any assets belonging to the estate would be subject to probate fees. Walter asked her to calculate what that would be, so she did. She also explained that there was a benefit to ensuring, to the extent possible, that assets were not part of the estate.

She suggested Walter also talk to his accountant about the possibility of transferring some estate assets to joint ownership with Moneca. [ 52 ] Walter met with Ayotte again on January 20th. Moneca also attended. During the meeting, Ayotte mentioned that reports had been circulating suggesting the federal government might increase the capital gains inclusion rate. She pointed out to Walter that he had large unrealized gains so such a change would significantly affect him. She suggested he should talk to his accountant about the possibility of crystalizing some of the capital gains to diversify his portfolio.

Walter joked with Moneca that if she would transfer the condominium in Kelowna to joint ownership with him, he would consider transferring some of his assets to her. [ 53 ] At some point during this meeting, Walter told Ayotte he was intending to change his will to eliminate the trust and name Moneca as executor. He did not elaborate. [ 54 ] Ayotte had dinner with the Konyks and Glenn on March 5th. She and Glenn spoke about whether the federal government would change its policy with respect to capital gains. At the end of the dinner, Glenn suggested he meet with Ayotte to discuss some matters for Walter.

Ayotte asked Walter if he would like her to review his unrealized capital gains with Glenn to which he said yes. [ 55 ] Ayotte and Glenn met the following day and discussed how this increase could affect the portion of Walter’s estate that was not going to Moneca or charity. They also discussed some other issues regarding estate planning. Glenn says she told him that Walter wanted to leave him several million dollars. Ayotte denies saying this. She maintains she did not know the details of Walter’s will other than he was intending to eliminate the spousal trust and appoint Moneca the executor.

In any event, she says she would never disclose such information to a third party. Glenn also says that she suggested some life insurance products for Walter’s estate. Again, Ayotte denies this. [ 56 ] Walter called Ayotte later that week to set up a further appointment. During the call, she asked if he had spoken to Glenn about the capital gains. He said he had not. [ 57 ] The Konyks met with Ayotte on March 14th. She asked Walter if he had followed through in changing his will. Walter told her that they both had made new wills. He changed his to remove the spousal trust, and Moneca was now executor.

Ayotte asked Walter if he had told Glenn about the changes. He said he did. [ 58 ] Walter also told Ayotte that he had given the issue of capital gains “much thought” and decided he would leave things as they were. He specifically raised the possibility that if the policy changed, it could be changed back. In addition, he said he read some articles suggesting that any change could be retroactive to January 1, 2017 so it would be of no benefit to transfer assets or take any other action. [ 59 ] Ayotte’s evidence was detailed and specific.

She knew Walter well, having worked with him for close to 20 years and had frequent contact with him. She knew well his frugal nature and that he was meticulous, attentive to his investments, and very clear in his views. She saw no indication that any of this had changed, that his cognitive functioning had declined, or that he was doing anything except what he wanted to do. The changes to his will, as she understood them, were in keeping with Walter’s approach and as well as their discussions over several meetings. She never heard Walter mention Jackie, Glenn’s sister.

Walter also implied to her that Glenn lived a lavish lifestyle, commenting that he had two big houses and a Porsche, which she understood to indicate his disapproval. She had never heard Walter complain that Moneca spent too much money, was uninterested in financial matters, or otherwise disappointed him. She did recall a remark Walter made about buying her friends lunches. She didn’t take it as serious criticism, but as a comment about Moneca’s generous nature. [ 60 ] Some of the comments Ayotte says Walter made are hearsay. In those instances, I find the requirement for threshold reliability is met.

Ayotte was a trusted financial advisor who had worked with him for many years. Their relationship was confidential. His financial situation was a serious and important matter to Walter. [ 61 ] Had Walter only met the alternate executor once? This is not corroborated elsewhere and Glenn says otherwise. However, the truth of it is not important. The fact that he said it suggests to me that Walter did not feel any connection to this person. [ 62 ] Glenn points to disputes in the evidence between himself and Ayotte, which are part of his argument that a trial of the issues is required.

Only two are worth mentioning in my view. The first is the conversation in Ayotte’s office. The second concerns a cheque for $1,000 Walter gave to Glenn during the dinner on March 5th. Ayotte says she saw Walter pass a cheque across the table to Glenn. She said it was significant because she recalls thinking it was out of character for Walter to be giving Glenn money. Glenn maintains that the cheque was in an envelope so she could not have known what was inside it.

[ 63 ] It is not necessary, in my view, to resolve these disputes. Neither is important to the issues I have to decide. [ 64 ] Glenn argues Ayotte’s evidence should be discounted for several reasons. She has an interest in the outcome of these proceedings, he says, because she is Moneca’s financial advisor. Thus, she will benefit if the will is valid. He also points out that she read his affidavit prior to executing her affidavit, so her memory is not independent.

Finally, he asserts her evidence was inconsistent, and on cross-examination, she said several things that were not included in her affidavit. [ 65 ] I reject these arguments. I found no significant inconsistencies in her testimony. Her affidavit and the transcript of her cross- examination reveal clear, detailed and precise evidence given by a careful witness. I have taken into account that she saw Glenn’s affidavit before she signed hers. That new information came out during more than two hours of cross-examination is not surprising. Ayotte was simply responding to questions or suggestions put to her.

Nothing she said appeared contrived or partial. Her explanation of the process of preparing her affidavit, which was somewhat “over-lawyered” one might say, explained why some things in her notes were not included in her affidavit. [ 66 ] As to the W ill itself, Tanis Jury met with the Konyks on January 17, 2017. They were unknown to her. An appointment was booked through her receptionist. [ 67 ] Jury said Walter presented as pleasant and well groomed. At the outset of the meeting, he told Jury that her name had been provided by a friend who had used her services.

He produced an advertisement that Jury runs in a local coffee shop newsletter offering a special rate to seniors of $175 for preparation of a will, and Walter said he wanted this rate. [ 68 ] Walter did most of the talking. He was detailed in his description of things. He brought several documents with him, including a copy of his 2006 will. He explained they wanted to leave their estates to each other, and name the other as executor. He told Jury he wanted a will that simplified things for Moneca. [ 69 ] During the meeting, Jury reviewed their individual assets and family members.

Walter correctly identified the fact that his parents and brother were deceased. He described Glenn as his cousin. He did not mention Jackie. He correctly described his assets, mentioned Ayotte as his financial advisor, identified his bank accounts and the name of his bank manager, along with other details. [ 70 ] When asked about his prior will, Walter said that circumstances had changed; when he initially named Glenn as his executor and trustee, he was actively managing his own investment portfolio, trading in stocks and equities. He had since transferred those investments to CIBC Wood Gundy.

He said he no longer wanted a spousal trust and wanted his entire estate to go to Moneca. He felt that since his advisors would be monitoring his portfolio, she would be able to handle the estate on her own with their assistance. His primary focus was to simplify his estate for her. He also told Jury that Glenn did not need his money. [ 71 ] At some point, Jury suggested to Walter that a more complex will could be drafted to address the significant capital gains consequences associated with his investments.

He maintained he wanted a simple will to make things easiest for Moneca. [ 72 ] In terms of the alternate beneficiaries, Walter and Moneca told Jury that they were going to discuss this further and Moneca would send her a detailed list of specific bequests.

Walter made the point that he did not want to leave anything to charitable organizations, and while he was reluctant to give money to Moneca’s church, he had agreed to do so because he knew it was important to Moneca. [ 73 ] Some time after the meeting, Jury’s office received a list of the individuals who were to be named as alternate beneficiaries in their wills. [ 74 ] Jury met with the Konyks again on February 27, 2017. She reviewed the list of individuals. They both confirmed that these individuals and Moneca’s church were to be their alternate beneficiaries.

Jury said in keeping with her practice for spousal wills, she gave them their own will and read the provisions separately in front of them. Neither raised any questions or concerns. They then signed the wills. [ 75 ] After that, Jury met with Moneca and Walter separately to review and sign their respective Powers of Attorney and Healthcare Directives. They had each appointed the other as both attorney and healthcare proxy.

Walter did not express any concerns to Jury while alone with her. [ 76 ] Jury stated that she was confident that Walter understood the terms of the will, there was no indication that he lacked testamentary capacity or that he was under any undue influence or coercion by Moneca. He was aware of the tax rules regarding spousal trusts, and had a clear idea of what he wanted to do. She observed that “he was more aware of the issues than most people I know”. She had no reason to question Walter about his health or cognitive functioning.

She found nothing unusual about a husband leaving his entire estate to his wife of 21 years, even when an earlier will had not. She also said she did not observe any decline or deterioration in Walter’s condition since the first meeting. [ 77 ] Jury’s evidence was also detailed and clear. Her notes were extensive.

Despite the fact she was cross-examined for almost four hours, I saw no significant internal inconsistencies in her evidence, and her evidence was consistent with that of both Ayotte and Moneca in areas where they overlapped. [ 78 ] Glenn argues that Jury failed in her duties as a solicitor when taking instructions from Walter. Specifically, he says she should have met with Walter alone, and she did not make inquiries about his physical health and cognitive functioning to explore properly his testamentary capacity.

When Walter told her how things had changed, she did not inquire why he and Jackie were not residual beneficiaries. Glenn relies on a series of cases where courts have found that lawyers failed in their obligation to make sufficient inquires to ascertain testamentary capacity. [16] [ 79 ] I reject these arguments. The cases Glenn cites involve situations where there were plain and obvious reasons to question capacity – a very elderly testator, one who is somewhat feeble, in hospital, a nursing home, or otherwise clearly infirmed. And/or a

beneficiary who appears to be controlling the arrangements. This is very different from the situation here. [ 80 ] Further, Jury was preparing spousal, or mirror, wills for the Konyks. Both parties were her clients. I asked Glenn’s lawyer for caselaw or other authority that addresses the duty of a solicitor in this instance, specifically in respect of meeting alone with a testator. I did not receive any.

More importantly, Glenn did not present expert evidence regarding a lawyer’s standard of care in this situation. [ 81 ] In my view, there was good reason for Jury not to question Walter’s testamentary capacity or think he was acting under pressure or influence. Keeping in mind the test for testamentary capacity, Walter gave her detailed information about his assets, correctly described his family situation, thus identifying who reasonably should be considered the “natural objects of his bounty”. He clearly appreciated the relationship among these factors.

He gave coherent and cogent reasons for why he wanted to change his will. How he wanted to go about this demonstrates he had formulated an “orderly desire as to the disposition of his property”, and very clearly Walter was in control of the discussion. [ 82 ] I turn briefly to Moneca’s evidence. In the spring of 2016, Walter mentioned to Moneca that his friend Ed told him that he and his wife had gone to Tanis Jury to make their wills. He was very pleased with Jury’s service and in addition, she advertised a discount for seniors.

Walter subsequently found the ad and cut it out. [ 83 ] Some time in the fall of that year, Walter mentioned that Catherine Ayotte recommended he review his will because of the length of time since his earlier will. Shortly after this, Walter made the appointment with Jury. [ 84 ] As to the meeting itself, Moneca’s account of the meeting was fairly detailed. Importantly, it is consistent with what Jury said. [ 85 ] Moneca described some of the beneficiaries as her friends and others as both her and Walter’s friends. Others were her relatives.

At the meeting, she and Walter told Jury they would decide whom they should name as residual beneficiaries. They did this and she then sent the list to Jury’s office. [ 86 ] Glenn argues that Moneca’s evidence should be discounted because it is self-serving. True, but that argument cuts both ways. Importantly, Moneca’s evidence is consistent with that of the other witnesses. Cross-examination revealed no inconsistencies. [ 87 ] I return to the allegations regarding Moneca’s involvement in preparing the will and her unduly influencing Walter.

These are based, for the most part, on a comment by Walter. [ 88 ] Glenn says Walter told him in February that Moneca was pressuring him to change his will and she wanted to take him to her lawyer to do so. Used for the purpose Glenn asks, this is hearsay. Lacking anything resembling corroboration, it is not admissible for its truth. It may of course reflect on Walter’s state of mind, or help assess some of his other comments. [ 89 ] In

summary then, Glenn’s allegations about Moneca’s involvement are simply not borne out by the evidence. Jury was not her lawyer, and there was no other lawyer mentioned in the evidence. Moneca was not instrumental in preparing the will. There is not a shred of evidence that Moneca had coerced Walter to make these changes. [ 90 ] It is important to point out that there is nothing improper in a person influencing a testator in decisions regarding their estate. It is only where it appears that the testator’s free will might have been overborne by coercion or fraud that suspicious circumstances arise.

One would expect that a wife would have influence over her husband’s decisions about this as well as other things. Walter’s health at the time of the Will [ 91 ] Glenn alleges Walter’s physical and mental health was such that questions arise regarding his testamentary capacity. Glenn’s lawyer made wide-ranging allegations about this in the written brief and during oral argument, some so distant from the evidence that I will not bother to address them. [ 92 ] Glenn has not provided any medical opinion to support his allegations. For the most part, he relies on comments he says Walter made.

He also points to some of Dr. Sikora’s evidence and certain of Walter’s medical records produced in this proceeding. At the same time however, he acknowledges that in all of his interactions with Walter, it never occurred to him that Walter’s capacity to manage his finances had diminished. [ 93 ] Some of these comments were Walter’s vague or general references to his health. Others were more specific.

The latter includes: • in late 2016 or early 2017, Walter said he had been diagnosed with cancer and was on medication which prevented him from drinking and affected his cognitive functioning • Walter told him that his health was deteriorating and for health reasons he was no longer able to travel • in February 2017, Walter told him he had a number of procedures scheduled, and was waiting for further testing regarding his skin cancer [ 94 ] These statements are hearsay. On the question of threshold reliability, I find they falter because none is true. Walter was not diagnosed with cancer in 2016.

He was not awaiting further testing for skin cancer at that time. He never took medication that interfered with his driving or cognitive abilities. He and Moneca travelled to Kelowna in 2016, and vacationed in Kenora in 2017. [ 95 ] While these statements are not admissible for proof of their truth, they are of some value in assessing other evidence. [ 96 ] What the evidence reveals however, is that in the three to four years prior to his death, Walter was treated for several minor health issues.

Between September 2014 and September 2015, he saw his family doctor, Felix Sikora, on several occasions complaining of anxiety. Dr. Sikora prescribed a mild anti-anxiety medication for him in September 2014. At an appointment a month later, the

dosage was increased. In November 2014, Dr. Sikora thought Walter seemed better so suggested he continue with the medication for a year. However, the provincial drug program records show Walter last filled a prescription for this medication in October 2014. [ 97 ] At a visit in May 2015, Walter again told Dr. Sikora he was feeling somewhat anxious and worried about different things. Walter appeared mildly anxious, but Dr. Sikora thought no treatment was necessary. [ 98 ] At a visit in September, Walter reported that he remained stressed.

He felt the work around the house fell to his shoulders and his wife was busy socially. He told Dr. Sikora he had discussed this with Moneca. Dr. Sikora suggested Walter consider counselling to deal with his anxiety. [ 99 ] At this same visit, Moneca told Dr. Sikora that following a bout of diarrhea, Walter appeared to be somewhat confused and was showing poor memory and difficulty concentrating. Dr. Sikora administered a screening test known as the Mini Mental State Examination (MMSE), which he had used for many years. A score of 21-26 out of 30 is consistent with mild dementia. Walter scored 28. Dr.

Sikora also administered a clock-drawing test where the individual is asked to draw a clock including a given time. Walter was unable to place one of the hands on the clock correctly. Dr. Sikora was of the view that Walter’s mildly anxious state may have been a factor in his performance on these tests. In any event, he assessed Walter as having mild cognitive impairment. [ 100 ] Moneca said she was present at this appointment and she and Walter discussed Walter’s concerns about being alone.

When cross-examined, she did not agree with Walter’s view that the work around the house fell on his shoulders, but she knew Walter wanted things done in very specific ways, so she decided she would make sure to accommodate him. She also stopped going to Thursday night prayer meetings. She cut back on her social

schedule which she said was not extensive. She asked Walter about counselling, but he did not want to go. [ 101 ] Although Walter saw Dr. Sikora several times more between May 2015 and November 2017, neither Walter’s anxiety nor cognitive functioning came up. Significantly, on February 22, 2017, Walter had a full physical examination. Dr. Sikora noted no complaints or concerns regarding any aspect of his physical or psychological health. At that point, Walter was taking one medication, which was for high cholesterol. No appointment was made to follow up on anything. [ 102 ] On November 20, 2017, Walter saw Dr.

Sikora, reporting that he felt vaguely dizzy when he was under stress such as when he had a pile of paperwork to get through. He felt he was worrying a bit more. Dr. Sikora’s assessment was that Walter was not depressed, but thought some general stress management techniques might be of help. He passed these on to Walter. He also suggested Walter contact the Anxiety Disorder Association for support. Walter did not wish to do this. [ 103 ] On January 17, 2018, Walter went to see Dr. Sikora because he had fallen and injured his back. Dr. Sikora noticed some issues with Walter’s gait.

Moneca also was concerned about Walter’s cognitive functioning. She said he was misplacing objects and was unable to plan or organize anything, was unable to pay bills, and spent most of his days in the bedroom watching television. Dr. Sikora performed another MMSE, at which time Walter scored 27/30. Given Walter’s gait, instability and the change in the MMSE score, Dr. Sikora ordered a CT Scan. This was done in early February and revealed evidence of prior stroke. The scan does not indicate when the stroke occurred or what, if any, symptoms Walter would have experienced.

The report erroneously states that Walter had previously been diagnosed with early signs of dementia. [ 104 ] The following day, Walter suffered a major stroke and was rushed to hospital. He did not regain consciousness before he died. [ 105 ] Dr. Sikora said that during the period of 2014 until the visit in November 2017, he did not have any concerns regarding Walter’s capacity to consent to or understand the medical treatment he was receiving. [ 106 ] Walter also had four non-melanoma lesions excised by Dr. Robert Moulton, a dermatologist, beginning in 2008. The last of these was in December 2016.

No tests were then outstanding. Dr. Moulton never prescribed medication, and he rejected the suggestion that Walter’s condition was worsening. In his affidavit and also during his cross-examination, Dr. Moulton said he would have seen Walter close to 40 times and always found him to be mentally astute and well versed about the condition he was being treated for and his medical affairs in general. [ 107 ] In the end, there is no basis to suggest that Walter’s health raised questions about his testamentary capacity or suggested he was susceptible to undue influence by Moneca.

Moneca and Walter’s relationship [ 108 ] Glenn asserts that Walter was very unhappy in his marriage. Over the course of his two affidavits, Glenn refers to various things he says Walter told him, mostly around the time of the will. [ 109 ] This includes: • Moneca was not home on Sundays because she went to church and then for dinner with her friends • Moneca was not around a lot because she was always out socializing • Moneca spent excessive amounts of money.

This included paying for dinners for her friends • Moneca was not interested in financial matters or investing • Walter was unhappy in his marriage and had been for years. He wanted to leave Moneca, but he was too old. When Glenn suggested he come and stay with him and his family, Walter refused, saying his friends and doctors were in Winnipeg • Walter spent his summers alone because Moneca went to Kelowna

[ 110 ] In addition, Glenn says the last time he visited with Walter and Moneca, they bickered constantly, mostly about Moneca’s spending. [ 111 ] Moneca tells a very different story. She describes her relationship to Walter as very close. They had a wide circle of friends with whom they socialized. They went to dinner, concerts, and golfed together. Other than the trip for Glenn’s mother’s funeral, she had accompanied Walter when he went to Toronto to see Glenn. She and Walter would see Glenn together when Glenn came to Winnipeg. She took Walter to all his appointments and did all the driving in the city.

She says Walter never complained to her about her spending, although it does seem that financial caution and restraint were always on his mind. Moneca had her own bank account, credit card, and income, although Walter also gave her money each month. [ 112 ] Moneca said the only day she was not home (after she stopped attending Thursday prayer meetings in 2015) was Sunday. She attended church by herself except for one or two occasions a year when Walter went with her. She usually went for lunch, but not dinner afterwards. Sometimes she would go out shopping for a while after that.

She did not pay for her friends’ lunches, although Walter seemed to think she did because he commented to her about this more than once. She claims he would say it in a teasing manner. Ayotte also said she heard Walter say this. She seemed to agree with Moneca’s characterization. During the initial meeting with Tanis Jury, Walter also described himself as more frugal than Moneca. [ 113 ] Moneca said she and Walter drove to Kelowna every summer.

He would stay for three weeks, fly home to look after his garden and then fly back to Kelowna in August, they would then drive home. [ 114 ] Moneca denies that she was not interested in investing, and says the opposite is true. She was present when Walter met with his lawyer about his 2006 will. Although she was not clear about the mechanism, she understood she would receive the income from the estate, that Glenn was the executor and he and Jackie were the residual beneficiaries.

She also knew that Glenn was to consult with her about investments. [ 115 ] She says that for 10 years or so before his death, Walter encouraged her to learn more about investing and she did so. They often discussed her investments. He taught her about the financial markets, taxation issues and different investing approaches. She read articles he suggested. Walter also made the point to her that one day she may have control over his investments, and he wanted her to understand and adopt his strategies.

Although she was investing online, at Walter’s suggestion she moved her investments to Maurice and Ayotte. [ 116 ] On cross-examination, Moneca was able to elaborate about Walter’s investment strategies and practices, pointing out that Walter never invested in anything that was speculative. Walter told her that Glenn did so however. The truth of this statement is not important.

The fact that Walter made the statement is. [ 117 ] She denies that she and Walter were “bickering” at their last visit with Glenn, and does not believe they even discussed her spending. [ 118 ] Other than Glenn, all the witnesses expressed the view that Moneca and Walter had a close and supportive relationship. Walter never raised any concerns about Moneca’s interest or knowledge in investing or spending habits in his discussions about changing his will. [ 119 ] I return to the statements Glenn says Walter made. Most are expressions of state of mind, opinions, or bodily or emotional feelings.

That Moneca was not interested in investing falls into hearsay territory if I rely use it to prove the truth of the statement, which is what Glenn asks. It is not corroborated in any way. In addition to Moneca’s evidence to the contrary, the change in Walter’s 2006 will directing Glenn to consult with Moneca before making any investments suggests Walter was satisfied that Moneca had knowledge of investments. [ 120 ] As to the other comments, it is difficult to know what to make of them. Some were not given a time frame.

Glenn’s description of some of the comments changed, and in several instances, had to be corrected after the fact. His evidence contradicts Moneca, Ayotte, and Walter on different issues. All of this combined raises a question about the reliability of his account of events. [ 121 ] Even if I were to accept that Walter said these things and Glenn is reporting them accurately, I would have to conclude that Walter was inclined to drama, given the number of comments that were disproved by other evidence.

It is difficult to assess the weight to be given to them. [ 122 ] In the result, all I can make of this issue is that Walter’s very frugal nature left him with strong opinions about money. He also didn’t like Moneca spending money on things he himself would not. He didn’t approve of anyone spending money lavishly. He also complained to Glenn about this and his relationship with Moneca two or three times. But even this falls short of Glenn’s suggestion that the Konyks had an unhappy, strained and distant relationship that logically would cause Walter to limit his bequest to her.

Glenn’s relationship with Walter [ 123 ] Glenn describes himself as Walter’s trusted financial advisor, intimately familiar with Walter’s holdings, and also having a close and caring relationship with him. [ 124 ] Moneca maintains that Glenn has overstated the nature and extent of his relationship with Walter. She claims that Walter relied on his own judgment and experience when investing. To the extent that he needed advice, he relied on Catherine Ayotte and Maurice Bohemier before her, and James Kilgour.

Moneca points out Kilgour had never heard of Glenn, and Walter seems to have first mentioned Glenn to Ayotte in their discussion about changing his will. She says the fact that over the years Walter sent Glenn details of his holdings on an ongoing basis was simply keeping Glenn informed in case anything happened to Walter, given that Glenn was Walter’s executor. She refers to the fact that some of Glenn’s claims are bald assertions unsupported by evidence - the number of visits and “celebration of milestones”, being examples.

Other claims had to be retracted once Glenn had to produce records - such as the frequency and duration of phone calls with Walter.

[ 125 ] This issue cannot be resolved here, and I very much doubt that it could even with a trial. Walter would be the only person who could answer this question. He clearly kept a lot to himself, and regrettably, although Walter told Glenn that he was changing his will to make things easier for Moneca, he neglected to add that Glenn was no longer a beneficiary. I note this is not an uncommon situation, one that has generated much litigation and caused irreparable damage to many family relationships.

Courts are very well aware of this. [ 126 ] That aside, the objective or uncontraverted evidence before me shows that whatever the situation was in the past, for the five years or so before his death, Walter’s relationship with Glenn consisted of occasional phone calls and a few visits. Glenn’s Christmas Day calls to Walter ended in 2013. Walter’s calls to Glenn after 2012 totalled 18 minutes. Glenn called Walter more often than that and sometimes they spoke for a long time.

Even these were not frequent and occurred mostly around or during Glenn’s visits to Winnipeg. [ 127 ] Most of Walter’s financial records Glenn produced predate 2014. His claim that a bank account and RIF had not been included in the probate inventory was wrong; the bank account was joint with Moneca. Similarly, the “missing” RIF, which was much smaller than Glenn asserted, named Moneca as beneficiary. The stock certificates Glenn thought were in Walter’s safe had been at CIBC Wood Gundy for some years. Clearly, he was neither current nor intimately aware of Walter’s assets when he died.

Do the changes to the Will make testamentary sense ? [ 128 ] I begin by agreeing with Glenn that the changes in Walter’s will were substantial. When considered in light of all that has been revealed, however, I easily conclude they make testamentary sense. [ 129 ] Walter’s attention to his finances was intense. He was informed, meticulous and extremely frugal.

Clearly averse to taxes, fees, or generally paying more for anything than necessary, some things seem extreme - dismissing Ayotte’s suggestion to hire someone to clear the snow after Moneca hurt her back shovelling, or telling Moneca to wash the car by hand instead of taking it to a car wash. Others were more significant - wanting their wills done at a reduced fee, not wanting to pay probate, executor or trustee fees. Sometimes his measures were quite sophisticated, such as using a spousal trust in his will. [ 130 ] Walter obviously trusted - and probably needed - Glenn to look after his estate for some years.

Walter’s comments to Ayotte and Jury that “things had changed” made sense however. Walter was no longer actively trading and CIBC Wood Gundy was managing his portfolio, so Glenn’s expertise was not needed. I accept that Moneca had learned about investing from Walter, including his approach and strategies. The tax advantage of a spousal trust had changed in some fashion. Walter had been told that $10,000 was not adequate executor’s compensation, and he would in addition have to pay trustee fees. He certainly left the impression with Ayotte that he did not want to do this.

Walter also appeared to disapprove of Glenn’s lifestyle, and whether true or not, he thought Glenn did not need Walter’s money. [ 131 ] Moreover, by the time of the will, the Konyks had been together for 21 years. I don’t know what his will prior to 2002 provided (assuming he had one), but the trend over the three wills that were produced was to give more to Moneca each time. He also added her to the title to the house, and made her the beneficiary of his RRIF. [ 132 ] Whatever Walter may have said to Glenn, the evidence demonstrates that Moneca was a supportive, present, and accommodating spouse.

At the same time, Walter’s relationship with Glenn had clearly waned. [ 133 ] The alternate residual beneficiaries are a mixture of Moneca’s relatives and people Walter describes as friends. That they would receive his estate if he survived Moneca perhaps may well have been the result of Moneca’s influence. Certainly the gift to her church appears to be. I find nothing suspicious about this. Conclusion [ 134 ] The evidence falls far short of establishing that suspicious circumstances surrounded the making of the will.

As a result, the presumption that Walter had knowledge of the contents of the will, possessed testamentary capacity and approved the will’s contents has not been rebutted. I will go further to say that even if the burden of proof were on the estate, I would be satisfied that the evidence establishes knowledge, capacity and consent. UNDUE INFLUENCE [ 135 ] In Ronald v. Ronald , Beard, J. (as she then was) summarized the principles involved in a case where undue influence is alleged. She says: [17] (

n) The party who alleges undue influence has the burden of proving that the mind of the testator was overborne by the influence exerted by another person such that there was no voluntary approval of the contents of the will. (

o) The burden is the civil burden of proof on a balance of probabilities. (

p) The degree of influence required to constitute undue influence is that which is so great and overpowering that the testator is forced or coerced into doing that which he or she does not want to do. (

q) It is not improper for any potential beneficiary to attempt to influence the decision of the testator, and a person may act towards a testator in a way that will induce him or her to provide a benefit, provided the influence does not amount to coercion such that the testator cannot act as a free agent.

(

r) It is not sufficient to establish that the benefiting party had the power to coerce the testator; it must be shown that the overbearing power was actually exercised and that it was because of its exercise that the will or disposition was made. [ 136 ] I need not go any further than to say that the evidence and my findings detailed above demonstrate the allegation of undue influence on Moneca’s

part is wholly unsupported. DECISION [ 137 ] For the reasons above, I find that Walter’s will of February 27, 2017 is valid. [ 138 ] The application is dismissed. Moneca is entitled to costs. The parties may speak to the quantum if they are unable to agree. ____ J. Date: 20221014 Docket: PR 18-01-10086 (Winnipeg Centre) Indexed as: Estate of Walter Konyk Cited as: 2022 MBKB 192 COURT OF KING’S BENCH OF MANITOBA B E T W E E N: ) Appearances : ) ) ) Dana J. Nelko and Amelia M. Peterson , ) for the applicant IN THE ESTATE OF WALTER KONYK, ) ) Sherry D.

Brown , Deceased. ) for the respondents ) ) JUDGMENT DELIVERED: ) October 14, 2022 SUCHE J. ERRATUM I have made the following correction to the judgment delivered on October 14, 2022 : [137] For the reasons above, I find that Walter’s will of February 27, 2017 is valid. Please replace page 38 of the judgment with the attached page, as amended.

DATED: October 28, 2022 _________________________ J. [11] Royal Trust Corporation of Canada v. Saunders , 2006 (ON SC) 19424 at para 78; Carlson v Lazicki , 2012 SKQB 260 at para 49 .