LEORA HARLINGTEN Applicant - v. -, 2023 SKKB 34

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 34 Date: 2023 02 14 Docket: SUR-BF-00212-2022 Judicial Centre: Battleford ___________________________________________________________________________ IN THE ESTATE OF WILLIAM GEORGE GIBB, DECEASED BETWEEN: LEORA HARLINGTEN Applicant - and - JESSICA SHAW Respondent Counsel: Robert F. Feist for the applicant, Leora Harlingten Karyn M. Kowalski for the respondent, Jessica Shaw ___________________________________________________________________________ FIAT ROTHERY J.

February 14, 2023 ___________________________________________________________________________ [ 1 ] The applicant, Leora Harlingten [Executrix], the alternate executrix of the Estate of William George Gibb, applies pursuant to Rule 16-43 of The Queen’s Bench Rules for a resolution of the matter resulting from a caveat filed by Jessica Shaw [Shaw] on September 23, 2022. The testator, William George Gibb [Gibb], died April 28, 2022. Shaw filed her caveat to protect her interest in a specific bequest made in her favour by way of a subsequent document, made November 23, 2020 [Subsequent Attachment].

The original document [Original Attachment] attached to Gibb’s will executed June 29, 2018, is similar to the Subsequent Attachment except that it did not make any reference to any specific bequest to Shaw.

The Subsequent Attachment added the specific bequest of $20,000.00 to be given to “Jessi Shaw … the administrator of RBM the company I work for at the time of this writing.” [ 2 ] The Executrix seeks the direction of the Court as to which of the two documents is the valid attachment to Gibb’s last will and testament made June 29, 2018, for the purpose of admitting the documents for probate. [ 3 ] The Executrix has filed affidavit evidence explaining that Gibb’s will was stored at the law office of the North Battleford solicitor, Marilyn Adsit [Adsit].

Adsit did not prepare the will but undertook to secure the will for Gibb. Adsit was also named in the will as the executrix. However, Adsit signed the renunciation of probate on June 29, 2022, which is also filed in this application. [ 4 ] The Executrix, from North Battleford, is one of two stepdaughters of Gibb. The other stepdaughter is Helen Sawatsky [Sawatsky] of Saskatoon. They are named in the will as the residual beneficiaries, to each an equal share of the Estate. The Executrix and Sawatsky are also listed as the residual beneficiaries in both attachments to the will.

The basic difference between the first and second attachment is the specific bequest of $20,000 to Shaw before the residue is equally divided between the Executrix and Sawatsky. [ 5 ] Paragraph 11 of the will states: 11. I give specific gifts as are identified on attachment “A”, attached to my Last Will and Testament and such attachment is incorporated and is part of this Last Will and Testament. [ 6 ] In her affidavit filed, the Executrix explained that the will she received from Adsit included the Original Attachment entitled “Asset Dispersement [ sic ] of Willaim George Gibb”.

It listed certain items to be distributed to various family members and to the Scale Rail Guild, accompanied by photographs to identify the items referred to. The Original Attachment referred to five photographs, but only three were appended to the Original Attachment. [ 7 ] The Executrix attached to her affidavit as Exhibit “F” a document marked “COPY”, which is a copy of the will with a different attachment, which she understands to be the Subsequent Attachment provided by Gibb to Adsit by way of email correspondence of November 23, 2020.

This Subsequent Attachment includes the specific bequest of $20,000 to Shaw.

[ 8 ] The Executrix also attached to her affidavit as Exhibits “D” (dated September 18, 2020) and “E” (dated November 23, 2020) the email correspondence between Gibb and Adsit, reproduced below: • Exhibit “D”: marilynadsit@sasktel.net From: Bill Gibb < bill@rbm-architecture.ca > Sent: Friday, September 18, 2020 11:24 AM To: Marilyn P. Adsit Subject: William Gibb_Will Addition Attachments: Dispersement 2018-06-12.pdf Hi Marilyn, I wish to add a person to my “Dispersement list” How do I go about that? I can revise the “Attachment A” and send it to you, if that will work. There are no signatures on that document.

No rush to get it done. If you let me know next week or month will be ok. Thanks Bill Gibb RBM Architecture Inc. … • Exhibit “E”: Bill Gibb From: marilynadsit@sasktel.net Sent: November-23-20 2:50 PM To: ‘Bill Gibb’ Subject: RE: W.G. Gibb Good afternoon Bill I received your email and hope all is well with you too ! I will print out and if I have any questions I will telephone you thanks plenty From: Bill Gibb < bill@rbm-architecture.ca > Sent: Monday, November 23, 2020 2:38 PM To: Marilyn P. Adsit < marilynadsit@sasktel.net > Subject: W.G. Gibb Importance: High Hi Marilyn Hope you are keeping safe.

Our entire office is working from home. A definite different way to live. I have attached a revised list to be attached to my will. I have added Jessi to receive cash. Please indicate receipt of this e-mail.

If you have any questions call or e-mail. Thank-you William George Gibb … [9] The attachment referred to in the email forwarded by Gibb to Adsit on November 23, 2020, is the SubsequentAttachment attached as Exhibit “F” to the Executrix’s affidavit.

It is titled “Attachment ‘A’ Asset Disbursement of William GeorgeGibb”, with nine black-and-white photographs attached and referred to in the Subsequent Attachment. [10] Shaw filed an affidavit in this application, explaining how she came to know and become a close friend of Gibb.She met Gibb in early 2019 when she began working at RBM Architecture Inc. in Saskatoon where Gibb worked. Gibb became close toShaw and her family, spending Christmases and special occasions together. [11] In early March 2022, Gibb was diagnosed with cancer, and he was hospitalized mid-March.

Gibb executed apower of attorney on March 13, 2022, naming Shaw as his attorney. Gibb also appointed Shaw his healthcare proxy in his healthcaredirective signed March 18, 2022. [12] While he was dying in hospital, Gibb asked Shaw to retrieve and keep a binder of important documents from hishouse, which included his will and the attachment providing the $20,000 bequest to her. As well, the binder included email exchangesbetween Gibb and Adsit. [13] After Gibb’s death, Shaw handed the binder over to the Executrix.

About a month later, Shaw received a letterfrom the Executrix’s lawyer demanding that monies Gibb gifted to her be repaid. Shaw also learned that the Executrix was taking issuewith Gibb’s bequest to her of $20,000. [14] Melissa Widger [Widger], the daughter of Sawatsky, filed an affidavit in support of Shaw’s position. Widgerrecounted that the Executrix contacted her on March 27, 2022, to advise that Gibb was diagnosed with cancer.

The Executrix also toldWidger that she was concerned that Gibb had appointed Shaw his power of attorney and that he had changed his will. [15] Widger flew from Texas to Saskatoon on April 22, 2022, to spend time with her dying grandfather. In the fewdays they spent together, Gibb told Widger that he had given Shaw money to buy a new vehicle after a car accident and that he hadadded Shaw to his will. He told Widger that he did not want his will contested.

Widger observed the close bond between Gibb and Shawduring her visits in the hospital. [16] Counsel for the Executrix and for Shaw agree that the Subsequent Attachment to the will of November 23,2020, is subject to the provisions of s. 37 of The Wills Act, 1996, SS 1996, c W-14.1 [Act], which states: 37 The court may, notwithstanding that a document or writing was not executed in compliance with all the formal requirementsimposed by this Act, order that the document or writing be fully effective as though it had been properly executed as the will of thedeceased or as the revocation, alteration or revival of the will of the deceased or of the testamentary intention embodied in that otherdocument, where a court, on application is satisfied that the document or writing embodies: (

a) the testamentary intentions of a deceased; or (

b) the intention of a deceased to revoke, alter or revive a will of the deceased or the testamentary intentions of the deceased embodiedin a document other than a will. [17] As stated by the Saskatchewan Court of Appeal in Bunn Estate (Re), (SK CA), [1992] 4WWR 240 at para 21 (Sask CA): [21] … A party alleging that a document represents the testamentary intentions of the deceased despite defects in execution mustprove this on a balance of probabilities. [18] It is agreed by both counsel in this application that the burden of proof rests with Shaw that the SubsequentAttachment complies with s. 37 of the Act.

It is further agreed by both counsel that Gibb was competent when he prepared the OriginalAttachment to his will of June 29, 2018, and the Subsequent Attachment of November 23, 2020. [19] The legal analysis that must be applied in determining whether the Subsequent Attachment complies with s. 37of the Act and is fully effective is summarized in Kube v Kube, 2015 SKCA 49 at paras 19-22, 457 Sask R 265: [19] … The sole question under s. 37 is whether a document even though it does not comply with the Act nevertheless is testamentary(Langseth Estate v Gardiner (1990), (MB CA), 75 DLR (4th) 25 (Man CA), quoted with approval by Vancise J.A. inRe Bunn Estate, (SK CA), [1992] 4 WWR 240 at 246).

This question of whether a document embodies thetestamentary intentions of the deceased for the purposes of s. 37 is twofold. [20] The first aspect of the question, as stated by Gerein J. in Balfour Estate (Re) (1990), (SK KB), 85 Sask R 183(QB), is whether the document is testamentary in nature: 6 Yet it must be kept in mind that the section’s purpose is to overcome noncompliance with formal requirements. It does notempower the court to render a document testamentary in nature when it is otherwise not so.

In the instant case the subject document doesnot manifest a true testamentary intention and therefore does not meet the threshold requirement of the section.

[21] The second aspect of the question is whether the document represents a deceased’s final wishes as stated in George v Daily(1997), (MB CA), 143 DLR (4th) 273 (Man CA) at 291: The term “testamentary intention” means much more than a person’s expression of how he would like his/her property to be disposed ofafter death. The essential quality of the term is that there must be a deliberate or fixed and final expression of intention as to the disposalof his/her property on death: Re Gray; Molinary v. Winfrey, (SCC), [1961] S.C.R. 91; and Canada Permanent Trust Co.v.

Bowman, (SCC), [1962] S.C.R. 711. [22] On a proper reading, the case of Kavanagh Estate v Kavanagh (1998), (NL CA), 159 DLR (4th) 629(NLCA), cited by Ken and Cherryl-Lynn for the proposition that evidence of intention to create a will is not necessary, merely reaffirmsthat there must be evidence that an individual intends that the document expresses his or her wishes as to what is to be done with his orher property in the event of his or her death and that it operates on his or her death for it to be testamentary. [Emphasis in original] [20] It is obvious that the Subsequent Attachment of November 23, 2020, is testamentary in the same manner as theOriginal Attachment to the will of June 29, 2018, was testamentary.

The Subsequent Attachment sets out a deliberate expression ofGibb’s intention to dispose of his property by including the specific bequest to Shaw. The Subsequent Attachment meets all the criteriarequired by s. 37 of the Act. [21] However, counsel for the Executrix submits that Shaw has failed to prove on a balance of probabilities that theSubsequent Attachment was actually made by Gibb and sent to Adsit from his own email account.

In support of the authenticity of theorigin of the email, Shaw stated in her affidavit that she did not have access to Gibb’s work email; only Gibb and the owner of RBMArchitecture Inc. would have had access to Gibb’s email. [22] Widger’s affidavit evidence also supports the fact that it was Gibb who sent the email to Adsit. Gibb toldWidger in April 2022 that he had added Shaw to his will.

And Widger stated that in March 2022, the Executrix already had concernsabout Gibb changing his will. [23] There is little more that Shaw can do to prove that Gibb actually sent the email and Subsequent Attachment toAdsit on November 23, 2020. However, there is one person who could provide evidence to show that the Subsequent Attachment wasfrom Gibb. It is Adsit, his lawyer at that time. There is no evidence filed by Adsit, even though she signed her renunciation as executrixon June 29, 2022. [24] Shaw could not glean any information from Adsit in support of her position.

It is protected by solicitor-clientprivilege. But the Executrix could have waived that privilege to allow for a full explanation from Adsit as to the communicationsbetween her and Gibb. See Geffen v Goodman Estate, (SCC), [1991] 2 SCR 353 at 384. [25] This is an obvious situation for invoking the rule of evidence regarding the inference that may be drawn fromthe failure of a party to bring before the Court evidence which may not support that party’s case.

That inference is set out in Murray vSaskatoon (1951), (SK CA), [1952] 2 DLR 499 at 506 (Sask CA): The subject is dealt with at length by the learned author in Wigmore on Evidence, 3rd ed., vol. II., pp. 162 et seq.

On p. 162 it isstated in part:‒“The failure to bring before the tribunal some circumstance, document, or witness, when either the party himself or hisopponent claims that the facts would thereby be elucidated, serves to indicate, as the most natural inference, that the party fears to do so,and this fear is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavourable to theparty.

These inferences, to be sure, cannot fairly be made except upon certain conditions; and they are also open always to explanationby circumstances which make some other hypothesis a more natural one than the party’s fear of exposure.

But the propriety of such aninference in general is not doubted.” The party affected by the inference may, of course, explain it away by showing circumstances which prevent the production of thewitness; but, where the failure to produce the witness is not explained, the inference may be drawn that the unproduced evidence wouldbe contrary to the party’s case or at least would not support it.

In the pages in Wigmore on Evidence following the above quotation manyauthorities are referred to which indicates that in the Courts of the United States the rule is of wide application. [26] Adsit could have cleared up the issue as to whether she received the Subsequent Attachment from Gibb andknew it to be the document sent to her from Gibb. With no evidence filed by the Executrix on that matter, I must draw the adverseinference that the evidence on this point is clear. That is, Adsit received her instructions from Gibb.

Shaw has proven on the balance ofprobabilities that the Subsequent Attachment setting out the specific bequest to her did indeed emanate from Gibb’s email. [27] In conclusion, Shaw has proven that the will with the Subsequent Attachment containing the inclusion of thebequest to Shaw of $20,000 constitutes the last will and testament of Gibb to be admitted for probate. [28] Shaw seeks an order that her costs of this application be paid, on a solicitor-client basis, out of the Estate.

Shawrefers to Ellingson v Ellingson Estate, 2017 SKQB 14 at para 119, in support of her request for costs: [119] The general rule of costs in estate litigation involving the

interpretation of wills is that the parties’ costs are to be paid out of theestate. This approach ensures that the will is interpreted in a manner that accurately reflects the intention of the testator. It was articulatedand applied by Matheson J. in Landsall v Lysyshyn (1998), (SK KB), 170 Sask R 273 at para 38 (Sask QB): 38 It is the rule, rather than the exception, to permit legal costs incurred in resolving disputes regarding the administration of estates tobe recovered from the estate, particularly when a dispute arises from an

interpretation of the testator’s intention. ... [29] I agree that Shaw’s costs should be awarded to her on a solicitor-client basis. There was no dispute as to Gibb’sintention when he made the Subsequent Attachment. The Executrix’s allegation that it was not a document prepared by Gibb wascompletely unsupported in the evidence. Therefore, Shaw is awarded costs on a solicitor-client basis, payable out of the Estate.

[ 30 ] I understand the caveat placed by Shaw has now been discharged, and it is unnecessary to make any order pertaining to it. “A.R. Rothery” J. A.R. ROTHERY