GLORIA VAUDREUIL, APPLICANT - v. -, 2023 SKKB 19

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 19 Date: 2023 01 27 File No.: SUR-YT-00156-2021 Judicial Centre: Yorkton IN THE ESTATE OF PAUL SHLAHETKA, DECEASED. BETWEEN: GLORIA VAUDREUIL, APPLICANT - and - IRVIN MADSON and CYNTHIA MADSON, RESPONDENTS Counsel: Doreen K. Clark for Gloria Vaudreuil Amy D. Banford for Irvin Madson and Cynthia Madson ___________________________________________________________________________ FIAT TURCOTTE J. January 27, 2023 ___________________________________________________________________________ Introduction [ 1 ] Paul Shlahetka died on August 6, 2021 at 91 years of age.

The applicant, Gloria Vaudreuil, and her sister, Irene Nehring, are nieces of Mr. Shlahetka. They filed a caveat against the Estate of Paul Shlahetka on August 12, 2021 preventing anything from being done in relation to the Estate. [ 2 ] Ms. Vaudreuil alleges Mr. Shlahetka made a Last Will and Testament dated May 7, 2014, prepared by the Tourney Law Office in Yorkton, Saskatchewan, and duly witnessed by two legal assistants [2014 Will]. She further alleges Mr. Shlahetka had previously made a Last Will and Testament dated November 27, 1998 prepared by the Tourney Dellow Law Office and witnessed by W.

Arliss Dellow, a lawyer, and a legal secretary [1998 Will]. [ 3 ] The respondents, Irvin Madson and Cynthia Madson, contend that a handwritten document dated July 8, 2016 [July 8 Document] is the holographic last will and testament of Mr. Shlahetka. The respondents filed their own caveat against the Estate of Paul Shlahetka on August 23, 2021 preventing anything from being done in relation to the Estate.

[ 4 ] The parties’ caveats have been continued by order of this Court and subsequently by agreement of the parties pending the outcome of these proceedings. [ 5 ] Ms. Vaudreuil applies under Rules 3-49 and 16-46 of The Queen’s Bench Rules and s. 3 of The Administration of Estates Act , SS 1998, c A-4.1 , for an order that the July 8 Document, or any portion of it, is not a testamentary document. Alternatively, Ms. Vaudreuil seeks an order requiring that the July 8 Document be proven in solemn form. Ms. Vaudreuil asserts that Mr. Shlahetka was suffering from advanced dementia and lacked testamentary capacity.

She also alleges that Mr. Shlahetka was unduly influenced by Mr. Madson. [ 6 ] In support of her application, Ms. Vaudreuil relies on the affidavits, documents and materials filed in QBG- YT-00230-2016, wherein she and Ms. Nehring applied for an order naming them as the personal guardians and property guardians of Mr. Shlahetka. That order was granted by Justice Krogan on October 25, 2016. In addition, Ms. Vaudreuil filed her own affidavit, her affidavit in reply, the affidavit of her husband, Warren Vaudreuil, and an affidavit of Ms. Nehring. [ 7 ] In opposition to the application, Mr.

Madson filed his own affidavit and the affidavit of his lawyer, Shawn Patenaude. [ 8 ] After the conclusion of the chambers argument, and at my direction, Mr. Madson filed a supplemental affidavit attaching the original copy of the July 8 Document. [ 9 ] The background facts set out below are determined by me from the affidavits filed in support of and opposition to the originating application, with the exception of some of the content of Mr. Madson’s affidavit. Mr. Madson’s affidavit is not jointly sworn by his spouse, Cynthia Madson. Mrs. Madson did not provide her own affidavit in this proceeding. Mr.

Madson’s affidavit contains comments, thoughts and opinions he attributes to being those of Mrs. Madson. Further, his affidavit alludes to Mrs. Madson’s understanding of some of the matters in issue to equate with his own understanding. Mrs. Madson should have sworn her own affidavit. I do not accept the hearsay content of Mr. Madson’s affidavit as it relates to observations, thoughts or opinions he attributes to Mrs. Madson.

I have otherwise fully considered the entirety of the affidavit evidence submitted by the parties. [ 10 ] As I will outline below, I have determined contradictory evidence has been adduced and findings of credibility will have to be made, such that there are genuine issues for trial. Background [ 11 ] Paul Shlahetka was born on April 28, 1930. He grew up on his parents’ family farm near Springside, Saskatchewan. His parents, Mike and Pauline predeceased him in 1966 and 1990, respectively. [ 12 ] Mr. Shlahetka had six siblings, all of whom predeceased him. One of his brothers, Bill, predeceased him in infancy.

His other three brothers, Peter who died in 1963, Fred who died in 1966 and Steve who died in 2019, never married and had no children of their own. His sister, Doris died in 2018. She had one son, Lorne Mundt. His sister, Annie died in 2019. Annie had three daughters, Adeline McPhee, Ms. Vaudreuil, and Ms. Nehring. [ 13 ] During his lifetime Mr.

Shlahetka operated a small mixed cattle and grain farm near Springside, Saskatchewan on land owned by him and described as the S½ of 36-28-06-W2nd and LSD’s 1, 2, 7, and 8 of 35-28-06-W2nd. [ 14 ] Irvin Madson and Cynthia Madson operate their own farm in the District of Springside. They are neighbours and friends of Mr. Shlahetka. [ 15 ] On or about February 9, 2015, Mr. Shlahetka while driving his car on a rural road near his home, hit the ditch, and became stuck in the snow. He was found by the RCMP who returned him to his home. The next day, Mr.

Shlahetka was driving his truck, ostensibly to retrieve his car, and again hit the ditch. He tried to dig himself out of the snow using his hands in -25-degree weather. The RCMP found him by his truck, disoriented and with his hands frostbitten by the cold. The RCMP took him to Yorkton Hospital where Mr. Shlahetka was admitted for treatment. [ 16 ] While in hospital, Mr. Shlahetka remained disoriented to time, place and person. His attending family physician, Dr. Oduntan, identified that Mr.

Shlahetka had an extensive family history of dementia and a past history of confusion and memory loss in 2009, but that his memory loss in 2015 had become more significant. Dr. Oduntan performed three separate Mini-Mental State Examinations [MMSE] on Mr. Shlahetka between February 10, 2015 and March 5, 2015. Mr. Shlahetka scored very low on each one. He was diagnosed with advanced dementia and a certificate of incompetence was forwarded to the Public Guardian and Trustee [PGT]. [ 17 ] Mr.

Shlahetka was placed at Canora Gateway Lodge [Gateway Lodge] where he continued to reside until his death on August 6, 2021. [ 18 ] During his lifetime Mr. Shlahetka did not marry, but he did have a longstanding relationship with a woman named Dorothy Leonhardt who lived in the nearby community of Theodore, Saskatchewan. [ 19 ] Ms. Leonhardt died on August 17, 2021. Analysis a. Legal Principles [ 20 ] The legal test with respect to an application seeking a will to be proven in solemn form can be summarized as follows:

1. Has the applicant adduced evidence, which if accepted at trial, would tend to negate testamentary capacity? 2. Have the respondents adduced uncontradicted evidence that can successfully answer the challenge and positively affirmtestamentary capacity? [21] The application only proceeds to trial when there is a genuine issue to be tried. The role of the chambers judge isnot to weigh the evidence or make findings of credibility.

Rather, if contradictory evidence is adduced, especially where findings ofcredibility will have to be made, the only realistic option for the chambers judge is to direct a trial. [22] The respondents rely on Dieno Estate v Dieno Estate, (SK KB), [1996] 10 WWR 375 (SaskQB) [Dieno], as well as McStay v Berta Estate, 2021 SKCA 51, 458 DLR (4th) 106 [McStay], from which the above principles arederived.

In McStay, Tholl J.A. reiterated and succinctly summarized the jurisprudence with respect to the two-stage process for proving awill in solemn form as follows at paras. 22-26: [22] The process to be utilized when a person applies to have a will proven in solemn form is not in dispute. The current formulation ofthe procedure and the test was set out by Baynton J. in Dieno: [27] An application in Saskatchewan to challenge a will on the basis of testamentary incapacity potentially involves two levels ofhearings.

The first is a Chambers hearing to determine if there is sufficient merit in the challenge to warrant a trial. The second (if theapplicant is successful) is a trial hearing to determine the issue itself. The issue before the court at either level is the same. The maindifference is the scope of the hearing, the ability to determine credibility respecting contradictory evidence, and the relief that is granted.The Chambers judge decides if there will be a trial, the trial judge decides if the testator had testamentary capacity.

In order to decidewhether a trial is warranted, the Chambers judge must summarily consider the evidence that tends to negate testamentary capacity alongwith the evidence which tends to affirm testamentary capacity. There is more involved than simply ascertaining if there is some evidenceadduced by the applicant that tends to negate capacity.

Evidence adduced by the proponents of the will must also be considered. … [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 in original] [23] The process and test were discussed by this Court in Ritchie, 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 in solemnform.

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

Whatever one may say aboutthe standard there proposed, or the need to use it, the second portion of the Dieno test clearly envisages a situation where no one can saya reasonable issue or question exists to be tried. [24] This Court applied Dieno and Ritchie in Kapacila. In that case, Klebuc C.J.S. discussed the 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).In Ritchie, 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], this Court applied this same test. After canvassing Dieno, Ritchie and Kapacila, 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 the applicant,and the limited role of a judge hearing such an application, which is a reflection of the fact that the purpose of the enquiry is limited todetermining whether there is a genuine issue to be tried.

To reiterate, the balance to be struck is captured by the following statementin 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 evidence andmake findings of credibility.

If contradictory evidence is adduced, especially where findings of credibility will have to be made, the onlyoption 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 proceededto weigh the evidence and make a finding of credibility.

By doing so, she misapplied the applicable criteria and committed an error oflaw that calls for intervention by this Court. [26] If there is a genuine issue to be tried, the matter must be referred to trial. [23] In Otto v Kapacila Estate, 2010 SKCA 85, [2010] 9 WWR 575 [Kapacila], Klebuc C.J.S. outlined thejurisprudence with respect to testamentary capacity to be applied within the two-step analysis as follows at paras. 33-36: [33] It is well established that a person, having achieved the age of maturity and who is of sound mind, memory and understanding, iscapable of making a valid will.

When the validity of a will is challenged on the basis that the testator lacked testamentary capacity, thepropounder of the will is called upon to prove the essential elements of testamentary capacity. Those elements were summarized byLaskin J.A. (dissenting) in Re: Schwartz (1970), (ON CA), 10 D.L.R. (3d) 15 at 32 (Ont. C.A.) [aff’d(SCC), [1972] S.C.R. 150]: ...

The testator must be sufficiently clear in his understanding and memory to know, on his own, and in a general way (1) the nature andextent of his property, (2) the persons who are the natural objects of his bounty and (3) the testamentary provisions he is making; and hemust, moreover, be capable of (4) appreciating these factors in relation to each other, and (5) forming an orderly desire as to thedisposition of his property... [34] James MacKenzie, Feeney’s Canadian Law of Wills, 4th ed., looseleaf (LexisNexis Canada, 2000) at §2.6 describes what is to beproven when a will is contested on the grounds of mental capacity: §2.6 ...

When a will is contested on the ground of mental incapacity, the propounder must prove that the testator understood what he orshe was doing: that the testator understood the “nature and quality of the act.” The testator must be able to comprehend and recollectwhat property he or she possessed, the persons that ordinarily might be expected to benefit, the extent of what is being given to eachbeneficiary and, finally, the nature of the claims of others who are being excluded. [Footnotes omitted.] [35] With respect to the nature and quality test, Feeney’s relied on the instructions Sir James Hannen gave to the jury in Boughton v.Knight, [1861-73] All E.R.

Reprint 40. Feeney’s summarizes the judge’s instructions as follows: ...

The judge told the jury that he thought that a good test of mental capacity to make a will might be the one used in criminal law: “didhe understand the nature and quality of the act?” He went on to say, “whatever degree of mental soundness is required for crimes,contract, marriage, to give evidence, the highest degree of all is required in order to constitute capacity to make a testamentarydisposition,” but he cautioned the jury that “a sound mind does not mean a perfectly balanced mind and we must give effect to the will ofsuch a mind, however much we may regret the course which it pursued.” [See: §2.6, footnote no. 1.] [36] It is of note that the standard of mental capacity required to make a valid will does not extend so far as to exclude eccentricity,capriciousness or unfairness.

See: Beal v. Henri, (ON CA), [1951] 1 D.L.R. 260 at 265 (Ont. C.A.). Moreover, a persondeclared incapable of managing his or her affairs may still be able to make a good will, but the task of proving testamentary capacity willbe a more onerous one. See: Baker Estate v. Myhre, (AB KB), [1995] 6 W.W.R. 410 (Alta. Q.B.) at para. 37. Withrespect to the various forms of senile dementia in elderly persons, Halsbury's Laws of Canada, Wills and Estates, 1st ed. (Markham:LexisNexis Inc., 2007) states: Dementia HWE-22 Capacity may remain.

An elderly person's mental powers may be so reduced that he or she has lost testamentary capacity.Nevertheless, a person diagnosed as suffering from senile dementia may be able to make a will. The mind of the old person must becapable of carrying apprehension beyond a limited range of familiar and suggested topics. Merely being able to make rational responsesis not enough, nor is repeating a tutored formula of simple terms. The mind must be able to comprehend of its own initiative andvolition.

Diagnosis of Alzheimer's disease is not conclusive of testamentary capacity, particularly as, like senile dementia generally, it isprogressive. The delusions that may accompany Alzheimer's disease may not in themselves be sufficient to vitiate the required mentalcapacity but may be evidence of a general lack of capacity. On the other hand, courts should not lightly deprive people of the right tomake a will, and testamentary capacity may remain despite other loss of abilities. [Bolding in original, underlining mine; footnotesomitted.] [Emphasis in original]

[24] Finally, the Supreme Court of Canada in Vout v Hay, (SCC), [1995] 2 SCR 876 [Vout],addressed the implications of raising suspicious circumstances surrounding the preparation of a will; questioning the capacity of thetestator; or showing the free will of the testator was overborne by acts of coercion or fraud, to the burden of proof in a dispute involvingthe validity of a will (para. 25). As the Court held at paras. 26 and 27: 26 Suspicious circumstances in any of the three categories to which I refer above will affect the burden of proof with respect toknowledge and approval.

The burden with respect to testamentary capacity will be affected as well if the circumstances reflect on themental capacity of the testator to make a will. Although the propounder of the will has the legal burden with respect to due execution,knowledge and approval, and testamentary capacity, the propounder is aided by a rebuttable presumption.

Upon proof that the will wasduly executed with the requisite formalities, after having been read over to or by a testator who appeared to understand it, it willgenerally be presumed that the testator knew and approved of the contents and had the necessary testamentary capacity. 27 Where suspicious circumstances are present, then the presumption is spent and the propounder of the will reassumes the legalburden of proving knowledge and approval. In addition, if the suspicious circumstances relate to mental capacity, the propounder of thewill reassumes the legal burden of establishing testamentary capacity.

Both of these issues must be proved in accordance with the civilstandard. There is nothing mysterious about the role of suspicious circumstances in this respect. The presumption simply casts anevidentiary 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. b.

Conflicts in the evidence [25] From the affidavit evidence, the circumstances leading up to the July 8 Document are suspicious for a numberof reasons. [26] First, Mr. Shlahetka’s capacity remained in issue from and after his placement in Gateway Lodge in or aboutMarch 2015 to at least July 8, 2016, as well as after that date. [27] Second, the affidavit evidence raises a serious issue as to Mr. Madson exerting undue influence over Mr.Shlahetka, including in his comments with respect to Mr. Shlahetka’s relationship with his nieces and nephew and more particularlyregarding Ms.

Vaudreuil’s motivation in seeking to manage Mr. Shlahetka’s affairs. Further, based on his own affidavit, it is apparentMr. Madson coached Mr. Shlahetka in the preparation of the July 8 Document. [28] Third, Mr. Madson’s self-interest in seeking to preserve the terms under which he averred Mr. Shlahetka hadagreed the respondents could farm his land during his lifetime and promised the respondents would benefit from his estate on his death,raises a serious issue regarding his credibility. Mr. Madson was well aware of Mr. Shlahetka’s dementia. It also seems Mr. Shlahetkadepended on Mr.

Madson for guidance, companionship and assistance. In such circumstances, Mr. Madson’s task of provingtestamentary capacity is more onerous, particularly where he stands to inherit Mr. Shlahetka’s estate. (Vout; and Kapacila). I will explainwithin the analysis which follows and while highlighting the conflicting aspects of the affidavit evidence. [29] Ms. Vaudreuil, her husband Warren Vaudreuil and Ms.

Nehring described a close family relationship with Mr.Shlahetka, including that each of them regularly visited with him at his farm and attended to some of his needs with their parents whenthey were younger and they subsequently continued to attend at his farm, to visit with him and assist him from time to time on their ownthroughout their adult years. [30] Mr. Madson described that he and his wife Cynthia had a longstanding friendship with Mr. Shlahetka as farmingneighbours. Mr. Madson also indicated he had rented Mr.

Shlahetka’s land for several years prior to 2018 in exchange for which he paidthe property taxes and helped out Mr. Shlahetka from time to time. [31] Mr. Madson characterized Mr. Shlahetka’s relationship with Ms. Leonhardt as a spousal relationship and thatMr. Shlahetka wanted to ensure Ms. Leonhardt was provided for. Ms. Vaudreuil characterized Mr. Shlahetka and Ms. Leonhardt’srelationship as boyfriend and girlfriend, not as cohabiting spouses. She noted they maintained separate residences at all times. [32] Mr. Madson expressed concern about Mr. Shlahetka’s nieces’ and nephew’s relationship with Mr.

Shlahetka.He suggested Mr. Shlahetka did not trust them and did not have a strong relationship with them. Mr. Madson alleged Ms. Vaudreuil wasmotivated towards benefitting her own children from Mr. Shlahetka’s estate, which stood in stark juxtaposition to his own efforts toprotect the longstanding arrangement he alleged he had with Mr. Shlahetka permitting him to farm Mr. Shlahetka’s land and that Mr.Shlahetka had promised that he and his wife Cynthia were to be the beneficiaries of Mr. Shlahetka’s estate. His statement in that regardalso contradicted his statement regarding Mr. Shlahetka’s concern that Ms.

Leonhardt be taken care of. [33] The affidavits of Ms. Vaudreuil, Mr. Vaudreuil and Ms. Nehring contradict Mr. Madson’s suggestion that theydid not have a strong relationship with Mr. Shlahetka. Their affidavits also contradict issues raised by Mr. Madson regarding the farmingarrangement under which Mr. Madson alleged he farmed Mr. Shlahetka’s land, whether they were in conflict with Mr. Shlahetkasurrounding Ms. Vaudreuil’s religious beliefs, whether Mr. Shlahetka appreciated Ms. Vaudreuil’s oversight in his affairs, and whethershe sought to create an advantage for her own children out of Mr.

Shlahetka’s estate. [34] Documents exhibited to Ms. Vaudreuil’s affidavits challenge several of Mr. Madson’s averments in his affidavit.For example, each of the 1998 Will and the 2014 Will attached to Ms. Vaudreuil’s affidavit indicate the residuary beneficiary of Mr.Shlahetka’s estate was his brother Steve, not the Madsons, nor Ms. Leonhardt. Further, Ms. Vaudreuil appended copies of Mr.Shlahetka’s Statement of Farming Activities from his 1998 to 2015 income tax returns, except for the 2003 and 2006 income tax yearswhich she could not locate. His Statements of Faming Activities indicated Mr.

Shlahetka declared income from farming and claimedcapital cost allowance and property tax expenses, among other expenses, in each of those years. Ms. Vaudreuil also attached copies ofcancelled cheques from 2010 to 2015 signed by Mr. Shlahetka, but not written out by him, showing expenses he paid out of his chequing

account. Mr. Madson did not address these documents in his response affidavit, nor did he provide any receipts confirming his payment of Mr. Shlahetka’s property taxes for any years. [ 35 ] The evidence regarding Mr. Shlahetka’s capacity is highly contradictory. [ 36 ] Prior to his discharge from Yorkton Hospital, Dr. Oduntan held a family care conference with Mr. Shlahetka’s family. Mr. Madson participated in that care conference. In his discharge

summary report dated March 5, 2015 Dr. Oduntan attributes the following observations to “the neighbor”: “The neighbor said they found him confused and hooking the wrong tractor to a wrong trailer and at times he keeps driving the snow in his yard several times for the whole day doing the same thing repeatedly”. [ 37 ] It was determined that Mr. Shlahetka should not return to live on his own at his home or make independent decisions. Ms. Vaudreuil was named as next-of-kin. Following his discharge from Yorkton Hospital on March 5, 2015, Mr.

Shlahetka was initially placed at Yorkton and District Nursing Home for a short time before being placed at the Gateway Lodge. [ 38 ] Dr. Oduntan completed a subsequent MMSE in his office on Mr. Shlahetka on May 20, 2015. In his report of that date attached to Ms. Vaudreuil’s affidavit, Dr. Oduntan indicates Mr. Shlahetka’s score on that test was improved but remained low. Dr. Oduntan diagnosed Mr. Shlahetka with dementia and indicated it will get worse over time. Dr. Oduntan concluded: “[Mr. Shlahetka] can be involved in decision making however his competence level cannot be reliable”. [ 39 ] Mr.

Madson received notice of the certificate of incompetence in respect to Mr. Shlahetka by letter from the PGT on March 30, 2015. In its letter, the PGT indicated it had authority to handle Mr. Shlahetka’s affairs under The Public Guardian and Trustee Act , SS 1983, c P-36.3 , but also indicated the possibility of someone else applying to be named the property guardian of Mr. Shlahetka by this Court. Mr.

Madson replied to the PGT by letter dated April 1, 2015, acknowledging the issuance of the certificate of incompetence and stating: …and justly so, as he was no longer able to cook, clean and maintain his home and to farm by himself he did to the end keep his finances orderly as all bills were paid timely. He knows to this date how much he has in the bank and what he owns as property and equipment. So I do not feel he is totally incompetent and should have some say. [ 40 ] In his letter to the PGT Mr. Madson indicated he did not intend to apply to be named property guardian of Mr.

Shlahetka but would agree to be a joint property guardian. He further suggested that Mr. Shlahetka would not want his nieces or nephew to be named as his property guardian(s). Mr. Madson suggested that part of his motivation for including this information in his letter to the PGT was that he had met with Ms. Vaudreuil and Mr. Vaudreuil at his home, when Mrs. Madson was not present, shortly after Mr. Shlahetka was placed in the Gateway Lodge. Mr. Madson averred that Ms. Vaudreuil told him she was going to sell everything of Mr. Shlahetka’s and her sons were going to inherit his estate. Both Ms. Vaudreuil and Mr.

Vaudreuil denied this conversation occurred. [ 41 ] From and after March 5, 2015 to October 25, 2016 when Ms. Vaudreuil and Ms. Nehring were appointed as personal guardians and property guardians of Mr. Shlahetka, Ms. Vaudreuil managed Mr. Shlahetka’s affairs under an informal arrangement. She was recognized as his next-of-kin with authority over his person and affairs by the staff at Gateway Lodge. She regularly attended at Gateway Lodge to visit with Mr. Shlahetka.

Periodically she took him out to his farm for visits, and she attended with him at the Springside Credit Union to attend to the payment of his bills. Similarly, Mr. Madson attended at the Gateway Lodge for visits with Mr. Shlahetka and periodically took him out of the Lodge for visits, to drive around the country, attend at his farm and purchase things for Mr. Shlahetka. Each party expressed that Mr. Shlahetka enjoyed their respective visits with him but he was upset and became agitated by the visits of the other with him. [ 42 ] In mid-May 2016, Ms. Vaudreuil approached Mr.

Madson about an accounting for the 2015 farming activities respecting Mr. Shlahetka’s land, cattle and equipment as well as the prospect of renting Mr. Shlahetka’s land for 2016. Mr. Madson refused to deal with Ms. Vaudreuil, indicating he was dealing directly with Mr. Shlahetka. [ 43 ] Mr. Madson indicated that in early June 2016 Mr. Shlahetka asked him to help him get his affairs in order as he wanted to do a will. Mr. Madson attended on his own with his former lawyer, Ms. Doreen Clark, to seek advice from her. Ms. Clark was already representing Ms. Vaudreuil. Consequently, she referred Mr. Madson to Mr.

Patenaude, another lawyer in Yorkton. There is no indication Mr. Madson immediately followed up with Mr. Patenaude. It is also unclear whether the respondents had previously retained Mr. Patenaude in other matters. [ 44 ] Subsequently, Mr. Madson received a letter dated June 14, 2016 from Ms. Clark indicating Ms. Vaudreuil and Ms. Nehring along with their sister Adeline, intended to apply to be named as Mr. Shlahetka’s guardians. That letter also requested Mr. Madson agree to pay $25 per cultivated acre should he wish to rent Mr. Shlahetka’s land and sought an accounting for cattle owned by Mr.

Shlahetka and sold by Mr. Madson in 2015. [ 45 ] On June 28, 2016, the Madsons removed Mr. Shlahetka from the Gateway Lodge and took him to see Mr. Patenaude. This was the first time Mr. Patenaude had met with Mr. Shlahetka. Mr. Patenaude indicated he thought Mr. Shlahetka had capacity to do a will. Mr. Patenaude did not append to his affidavit any of his file notes in relation to Mr. Shlahetka, including from the June 28, 2016 attendance. Accordingly, there is nothing from Mr. Patenaude that indicates what questions were put to Mr.

Shlahetka to verify he understood the nature and purpose of a will, the nature, extent or value of his assets, or to challenge his memory, including to state the current day, month and year, or his date of birth, or to determine if he had previously made a will reflecting his intentions and not those suggested by others ( Kapacila , paras. 43-47 ). [ 46 ] It is apparent that Mr. Patenaude did not interview Mr. Shlahetka separate and apart from the Madsons. Consequently, if Mr. Shlahetka was suffering from a form of dementia, Mr.

Patenaude’s affidavit in the absence of his file notes makes it impossible to determine whether on June 28, 2016 Mr. Shlahetka was speaking of the assets he had in the past, or of his present holdings, or the extent of any influence the Madsons were exerting upon him. Thus, the Court is left with little information from Mr. Patenaude which supports Mr. Shlahetka having the requisite testamentary capacity on June 28, 2016, other than Mr. Patenaude’s bald assertion in that regard. Regardless, Mr. Patenaude did not interview Mr. Shlahetka on July 8, 2016. Mr. Patenaude’s affidavit provides no

corroboration of Mr. Shlahetka having testamentary capacity on July 8, 2016. [ 47 ] Mr. Patenaude did not take instructions from Mr. Shlahetka with respect to the preparation of a will. At no time did Mr. Patenaude prepare a will for Mr. Shlahetka. Mr. Patenaude indicates he provided direction to Mr. Shlahetka on the preparation of a holographic will. As Mr. Madson had provided him with a copy of the letter from Ms. Clark indicating Mr. Shlahetka had been declared incompetent, and because Mr. Patenaude represented the respondents, Mr.

Patenaude advised it would be better to first determine whether a professional capacity assessment of Mr. Shlahetka would be required. [ 48 ] From Mr. Patenaude’s affidavit, and the subsequent claim he brought on behalf of the Madsons against Mr. Shlahetka, it appears Mr. Patenaude considered himself as representing the Madsons in these matters and not Mr. Shlahetka. Despite the same, Mr. Patenaude’s email to Ms. Clark dated June 28, 2016 asserts that Mr. Patenaude represented Mr. Shlahetka with respect to his estate planning matters. Mr. Patenaude’s email references the letter from Ms.

Clark sent to the Madsons as it related to Ms. Vaudreuil and Ms. Nehring along with their sister Adeline, applying to be named as Mr. Shlahetka’s guardians and states in part: Doreen, Paul Shlahetka has retained me to deal with estate planning matters. He has provided me a copy of a letter to Irvin Madsen [ sic ] stating that Adeline McPhee, Gloria Vaudreuil and Irene Nehring are intending to apply for a guardianship order. Paul advises that he does not want any of them to act because he does not trust they will look after him properly.

He advises that Gloria Vaudreuil has already removed several items from the house without right and without accounting for their whereabouts. She also has keys to vehicles that need to put into storage. The letter states a doctor has provided a letter setting out that Paul is no longer able to look after any of his affairs. Please provide me a copy of this letter. I was able to obtain Instructions from Paul without issue and believe he has legal capacity to execute a Power of Attorney according to his wishes.

Once I receive the letter, I will provide Paul my recommendation whether or not he should attend for a professional capacity assessment. [ 49 ] Each of Ms. Vaudreuil, Mr. Vaudreuil and Ms. Nehring challenged any assertion that they did not have a good relationship with Mr. Shlahetka. Ms. Vaudreuil averred she asked Mr. Shlahetka whether he wanted her to manage his affairs. She stated that after a pause Mr. Shlahetka confirmed he did want her to manage his affairs. [ 50 ] Further, there is no mention in Mr. Patenaude’s affidavit or in his email to Ms. Clark appended thereto relating to the demand in Ms.

Clark’s letter to his clients the Madsons seeking rent of $25 per cultivated acre of Mr. Shlahetka’s land, the accounting sought for Mr. Shlahetka’s cattle sold by Mr. Madson, or the purported arrangement the Madsons had with Mr. Shlahetka to farm his land or otherwise deal with Mr. Shlahetka’s affairs. [ 51 ] On July 8, 2016, Mr. Madson removed Mr. Shlahetka from Gateway Lodge. Mr. Madson indicated they spent some time together in Yorkton and drove around a bit. Mr. Madson provides no details as to what discussions, if any, he had with Mr. Shlahetka while they were driving around. Ms.

Vaudreuil indicated that on July 8, 2016 Mr. Madson had attended at her home with Mr. Shlahetka and requested the keys to Mr. Shlahetka’s car which was parked outside by Mr. Shlahetka’s home on his farm, so that he could move it into the garage. Ms. Vaudreuil provided them with the keys for that purpose. Although she said she asked that the keys be placed in Mr. Shlahetka’s chest of drawers at Gateway Lodge, this was not done. [ 52 ] Mr. Madson does say that on July 8, 2016 Mr. Shlahetka remained concerned about doing a will. Mr. Madson took Mr.

Shlahetka to his own home and sat him down at his kitchen table with a pen and a piece of paper. Mrs. Madson was not present. [ 53 ] Based on Mr. Madson’s affidavit, it is uncontradicted that he coached Mr. Shlahetka in the preparation of the July 8 Document. Mr. Madson said, based on what Mr. Patenaude had advised with respect to a holographic will, that he told Mr. Shlahetka to write down what he wanted and left him on his own for about 20 minutes. During that time, he said Mr. Shlahetka wrote down the first part of the July 8 Document. Mr. Madson averred Mr.

Shlahetka then called him back, but when he looked at what Mr. Shlahetka had written Mr. Madson said he told him “it was not really a will but more of a power of attorney” and it “did not really say what was to be done with his estate after he died”. Mr. Madson averred he then left Mr. Shlahetka for a further 30 minutes “or so” during which time Mr. Shlahetka wrote out the second part of the July 8 Document. Mr. Madson averred that when Mr. Shlahetka called him back in, he said words to the effect “now take this and rub it under Gloria’s nose”. Mr.

Madson further averred: “He knew that at this point that Gloria was trying to get guardianship over him and felt she was trying to get his property, and was very unhappy about that”. Mr. Madson averred that after doing the July 8 Document Mr. Shlahetka was very content and felt everything was looked after. [ 54 ] In her affidavits, Ms. Vaudreuil averred to significant competency issues Mr.

Shlahetka had after he was admitted to the Gateway Lodge, including not recognizing his three siblings who were also living there, not remembering who had visited him, not remembering details as to his farm or farming operation, not knowing what date it was or having knowledge of current events. Further, she challenged Mr. Shlahetka’s ability to write out a holographic will on his own. She asserted that for many years she had not seen Mr. Shlahetka write anything other than signing his name, including on cheques. [ 55 ] On July 20, 2018, Mr. Madson brought the July 8 Document to Mr. Patenaude.

In his affidavit, Mr. Patenaude confirmed as follows: “The [July 8 Document] set out the intentions as [Mr. Shlahetka] communicated to me on June 28, 2016”. His averment in that regard is not conclusive of anything, particularly given Mr. Patenaude was not present when the July 8 Document was prepared. Further, Mr. Patenaude’s email to Ms. Clark dated June 28, 2016 which states in part: “I was able to obtain Instructions from [Mr. Shlahetka] without issue and believe he has the legal capacity to execute a Power of Attorney according to his wishes” leaves open the question as to whether Mr.

Shlahetka sought to have a power of attorney prepared or a will. [ 56 ] Mr. Patenaude averred that he instructed Mr. Madson to keep the July 8 Document in his safekeeping until they could get a capacity assessment and a formal will done. Mr. Madson retained the original copy of the July 8 Document in his possession until filing the same with this Court on my direction after the chambers hearing. [ 57 ] In the background, Ms. Vaudreuil and Ms.

Nehring were proceeding with their application in QBG-YT-00230- 2016 under The Adult Guardianship and Co-decision-making Act , SS 2000, c A-5.3 , to be named personal guardians and property guardians of Mr. Shlahetka. Ms. Vaudreuil and Ms. Nehring obtained a capacity assessment dated August 23, 2016 from Leanne

Semeschuk, a registered psychiatric nurse at Gateway Lodge who provided direct care to Mr. Shlahetka and a capacity assessment dated September 9, 2016 from Dr. Hamed Afshari, Mr. Shlahetka’s attending physician at Gateway Lodge. Both attested to having regular contact and to providing ongoing care to Mr. Shlahetka since his admission to Gateway Lodge in March 2015. Each attested to Mr. Shlahetka not having the capacity to manage his affairs or to deal with his own personal care. In his affidavit, Dr. Afshari averred to performing two MMSEs on Mr. Shlahetka on July 26, 2016 and August 26, 2016. Mr.

Shlahetka scored lower on both of those tests than his score upon discharge from the Yorkton Hospital in March 2015 and the subsequent test score of the MMSE performed by Dr. Oduntan on Mr. Shlahetka on May 21, 2015. [ 58 ] Ms. Vaudreuil and Ms. Nehring filed separate Form B affidavits in support of their application attesting to the need for Mr. Shlahetka to have a property guardian and personal guardian appointed for him. Attached to their Form B affidavits, each of Ms. Vaudreuil and Ms. Nehring attached the 2014 Will as representing the Last Will and Testament of Mr. Shlahetka. Mr.

Patenaude was aware of the steps being taken by Ms. Clark’s office to obtain an order appointing a property guardian and a personal guardian for Mr. Shlahetka, yet he did not send a copy of the July 8 Document to Ms. Clark until January 10, 2017. [ 59 ] On October 25, 2016, Justice Krogan granted an order under The Adult Guardianship and Co-decision-making Act finding that Mr. Shlahetka’s capacity was impaired to the extent he was unable to make reasonable decisions with respect to his personal care and was in need of a personal guardian. Justice Krogan further found that Mr.

Shlahetka’s capacity was impaired to the extent that he was unable to make reasonable decisions with respect to matters relating to his estate and was in need of a property guardian. Ms. Vaudreuil and Ms. Nehring were appointed by Justice Krogan to be the personal guardians and property guardians of Mr. Shlahetka. [ 60 ] Ms. Vaudreuil and Ms. Nehring described Mr. Shlahetka as continuing to be upset by Mr. Madson attending at the Gateway Lodge after July 8, 2016, including times Mr. Madson brought Ms. Leonhardt to visit. Ms. Vaudreuil subsequently directed the staff to no longer permit Mr. Madson or Ms.

Leonhardt to visit Mr. Shlahetka at Gateway Lodge. Although Mr. Patenaude complained to Ms. Clark about the same, no formal steps were taken by Mr. Madson or Ms. Leonhardt to seek an order permitting them to visit Mr. Shlahetka. [ 61 ] Mr. Patenaude averred he “…remained involved in matters on behalf of the Madsons who wished to protect [Mr. Shlahetka] but also protect their interest in [Mr. Shlahetka’s] land which had been rented by the Madsons for many years”. His efforts in that regard seemed to be largely limited to seeking to have a capacity assessment performed on Mr.

Shlahetka until February 2, 2017 when Mr. Patenaude on behalf of the Madsons commenced an action against Mr. Shlahetka styled as QBG-YT-00029-2017. In that proceeding, the Madsons claimed an interest in Mr. Shlahetka’s farmland under an agreement or agreements that granted them the right to use, lease or otherwise enjoy Mr. Shlahetka’s farmland in consideration of them paying the taxes on the farmland and further assisting Mr. Shlahetka from time to time. Additionally, they claimed as follows: 5.

In further consideration of the Plaintiffs assisting Paul Shlahetka, Paul Shlahetka promised the Plaintiffs that they would get the Land whether through a purchase of such Land during Paul Shlahetka’s life or by way of a gift of the Land upon Paul Shlahetka’s death such promise made verbally and also by a written instrument dated July 8, 2016. 6.

The Plaintiffs have farmed the Land for several years and have made significant improvements, the extent and nature of which will be proven at trial and have done so on the reliance that they would have indefinite use, right and enjoyment of the Land. [ 62 ] On February 21, 2017, Ms. Leonhardt brought a family law proceeding against Mr. Shlahetka styled as FLD- YT-00007-2017, claiming relief under The Family Property Act , SS 1997, c F-6.3 , and relief between persons who have lived together as spouses, including an interest in Mr.

Shlahetka’s property and seeking monetary compensation. [ 63 ] On August 10, 2017, Ms. Vaudreuil and Ms. Nehring, as Mr. Shlahetka’s litigation guardians, filed a statement of defence and counterclaim in QBG-YT-00029-2017. They sought the dismissal of the respondents’ action and an accounting and payment of the proceeds obtained by the respondents from the sale of livestock and other chattels belonging to Mr. Shlahetka, the recovery of other chattels belonging to Mr.

Shlahetka believed to be in the possession of the respondents, and damages against the respondents, including for damage to the farmland and buildings arising out of work done on the land by the respondents. [ 64 ] On September 29, 2017, Ms. Vaudreuil and Ms. Nehring, as Mr. Shlahetka’s litigation guardians, filed an answer to Ms. Leonhardt’s family law proceeding. In their answer, they denied that the action disclosed a cause of action and that Ms. Leonhardt and Mr. Shlahetka had cohabited as spouses. [ 65 ] Each of QBG-YT-00029-2017 and FLD-YT-00007-2017 were settled by agreement of the parties prior to Mr.

Shlahetka’s death, with Mr. Shlahetka represented throughout by Ms. Vaudreuil and Ms. Nehring as his litigation guardians. [ 66 ] In QBG-YT-00029-2017 by minutes of settlement dated July 18, 2018 [Minutes of Settlement], the Madsons agreed to pay the sum of $320,000 to Mr. Shlahetka and discontinue their action, in exchange for Mr. Shlahetka’s farmland, equipment, cattle and bales being transferred to them free and clear and in satisfaction of all claims arising out of Mr. Shlahetka’s counterclaim against them. [ 67 ] On October 8, 2020, in FLD-YT-00007-2017, Ms. Leonhardt released Mr.

Shlahetka of all her claims in consideration of the payment of $100,000 from him to her. [ 68 ] Despite the terms of the Minutes of Settlement, after Mr. Shlahetka died the respondents filed a caveat against his estate on August 23, 2021 claiming an interest in the estate pursuant to the July 8 Document. As noted above, their statement of claim in QBG-YT-00029-2017 claimed relief, among other things, arising out of the July 8 Document. There is a genuine issue as to the effect of the Minutes of Settlement on the respondents’ claims in this proceeding in respect of Mr. Shlahetka’s estate. c.

Conclusion on the effect of the conflicting evidence

[ 69 ] As can be seen from the above examination of the evidence, there were significant conflicts regarding Mr. Shlahetka’s mental state at the time the July 8 Document was signed, his intentions, his relationship with his nieces and nephew, his relationship with the Madsons, the actions and role of Mr. Madson and the circumstances surrounding the making of the July 8 Document. These are not mere contradictions on immaterial issues. There are major conflicts in relation to material issues that could affect a determination of capacity and undue influence. Having regard for the

summary of the affidavit evidence set out above, controversy remains on several critical matters in dispute, some of which overlap, and many of which will require an assessment of credibility by a trier of fact. Conclusion [ 70 ] I direct a trial to prove the July 8 Document in solemn form to determine what portion, if any, of the July 8 Document expresses the testamentary intention of Mr. Shlahetka. The issues to be determined are whether Mr.

Shlahetka, at the time of the execution of the July 8 Document, had testamentary capacity or was subject to undue influence, and what is the effect, if any, of the Minutes of Settlement on the respondents’ claims in this proceeding in respect of Mr. Shlahetka’s estate.

The respondents shall bear the burden of establishing on a balance of probabilities the issues identified in accordance with the tests set out in Vout . [ 71 ] The parties should, in advance of the hearing, attempt to resolve whether they accept the 2014 Will to be operative in respect of the testamentary intention and disposition of assets that are not found to be contained in the July 8 Document. [ 72 ] The Queen’s Bench Rules ,

Part 5, Division 2, Subdivision 2, regarding disclosure shall apply to the trial. A pre- trial conference shall take place in accordance with The Queen’s Bench Rules ,

Part 4, Division 3, Subdivision 2, before the trial in an effort to settle the matter. If there are any procedural issues to be addressed prior to the trial, the parties have leave to seek further direction from me in a case conference under Rule 4-4 upon request through the Local Registrar. [ 73 ] Ms. Vaudreuil has been successful at stage one of her application challenging the July 8 Document. She has met the threshold of establishing that there is a genuine issue for trial.

In the circumstances of this case, it is my view that the costs of the underlying application should be costs in the cause in favour of Ms. Vaudreuil payable by the estate, with the determination of whether such costs should be on solicitor-client basis left to the trial judge. J. F.N. TURCOTTE