Hoffman v. Heinrichs, 2013 MBCA 63

Citation: Hoffman v. Heinrichs, 2013 MBCA 63 Date: 20130702 Docket: AI 12-30-07832 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Alan D. MacInnes Mr. Justice Marc M. Monnin Mr. Justice William J. Burnett BETWEEN : RUDY HOFFMAN ) J. E. Crane and ) I. B. Scarth ) for the Appellant (Applicant) Appellant ) ) D. G. Hill and - and - ) M. J. Weinstein ) for the Respondent WARREN MARCEL HEINRICHS ) ) Appeal heard: ) May 22, 2013 (Respondent) Respondent ) ) Judgment delivered: ) July 2, 2013 MacINNES J.A. [ 1 ] The applicant challenged the validity of the will of his aunt, Ann Ogilvie (Ann).

He sought to have the will set aside, alleging the existence of suspicious circumstances surrounding its making, that his aunt lacked testamentary capacity and that undue influence was exerted upon her by her twin brother, Jacob Heinrichs (Jake). [ 2 ] The trial judge dismissed the applicant’s application and ordered costs payable by him (rather than out of the estate) to the respondent. It is from that judgment that the applicant appeals. Background [ 3 ] Ann died January 4, 2009.

She made her last will on October 20, 1980, leaving her entire estate to Jake or, if he predeceased her, to his son, Warren Marcel Heinrichs, the respondent. [ 4 ] Ann was one of nine siblings. One of them, born 20 years before Ann, died at the age of three in 1900. She and Jake were several years younger than the other six siblings. They grew up on a farm in Halbstadt, Manitoba and had a very close relationship throughout their entire lives. Ann did not have a close relationship with her other siblings. [ 5 ] Ann and Jake were 19 when their father died in a car accident. Both inherited farmland from him.

Ann still owned her land at the time of her death. It had been farmed by Jake until he retired in 1982, and thereafter by his son, Warren. [ 6 ] Ann married on July 1, 1945. She and her husband had no children. They lived in Winnipeg. They visited Jake and his wife and family at their farm in Halbstadt from time to time. They in turn visited Ann and her husband at their home in Winnipeg and at their cottage from time to time. Ann’s husband died December 16, 1978. She went immediately to live with Jake and his family until January 15, 1979, when she became hospitalized. [ 7 ] Ann suffered from schizophrenia.

There was no evidence as to the date of her diagnosis, but the disease continued throughout her adult life. She was a patient in Selkirk Mental Hospital in 1957 and at Eden Mental Health Centre (Eden) in 1970, and again following her husband’s death, from January 15 to March 6, 1979. Upon discharge on March 6, 1979, she went to live at the

Ebenezer Home for the Aged, a personal care home, until early 1993. [ 8 ] A letter from Dr. Guenther, her psychiatrist at Eden, dated December 11, 1979, described her condition as follows: This lady shows typical symptoms from a long-standing schizophrenic illness. There is very little that one can do for her. Her condition is stable. She is no problem. Her emotions are rather flattened, anergic.

I think placement in a nursing home is indicated on a long term basis, where she should be encouraged to do as much as she can for herself, as well as involvement in occupational therapy and stimulation by going out and visiting at times. . . . . .

I would be prepared to see her at any time here at the Centre if her family doctor feels it is indicated; if there is any change in her condition I would reassess her and perhaps modify medication. [ 9 ] Following her discharge from Eden on March 6, 1979, her illness was treated and controlled with medication, and she did not require any further hospitalization. [ 10 ] After Ann’s husband died, Jake looked after her finances until he died in 1993, at which time his son, Bryon Heinrichs, assumed that responsibility.

It was Jake who drove Ann to a trust company in Winnipeg on October 20, 1980, where she met with an estate officer, gave instructions for and executed her will. At the time of Ann’s death, her estate was valued at approximately $1.1 million, considerably more than its value at the time she made her will on October 20, 1980. [ 11 ] In addition to the applicant and respondent, Ann had 82 other nephews, nieces, grandnephews and grandnieces.

If the will is declared invalid, her estate would be divided amongst each of these next of kin. [ 12 ] Following a six-day trial, the trial judge found the will to be valid, concluding that Ann had testamentary capacity when she made her will and that her will was executed with her knowledge and approval, and of her own free will. [ 13 ] The applicant raises five issues on his appeal. He asserts that the trial judge erred in finding that: 1. suspicious circumstances did not exist surrounding the preparation and execution of the will; 2.

Ann was not under undue influence, coercion or duress at the time the will was prepared and executed; 3. Ann had testamentary capacity on the date of the execution of the will; 4. the respondent satisfied the onus to prove that the will was executed with the requisite knowledge and approval; and 5. the applicant was not entitled to his costs from the estate. Standard of Review [ 14 ] The applicant submits that the standard of review for each of the five issues is that of palpable and overriding error.

He asserts that this court must show deference to the decisions of the trial judge on questions of fact, including the drawing of inferences from facts, and on questions of mixed fact and law and may only interfere if the trial judge has made a palpable and overriding error. [ 15 ] The respondent agrees with the applicant’s position respecting issues one to four, but asserts that issue five, being the trial judge’s award of costs against the applicant, is a discretionary order for which the standard of review is that set forth by Freedman J.A. in Towers Ltd. v.

Quinton’s Cleaners Ltd. et al. , 2009 MBCA 81 , 245 Man.R. (2d) 70 (at para. 28 ): The standard for intervention in a discretionary decision is very high. It is not enough that the appellate judges think the trial (or motions) judge simply reached a wrong result; there rarely is, in truly discretionary matters, a “right” or “wrong” result. It is not enough that the appellate judges would have decided differently; they are to respect, and not replicate, the unique role of trial judges.

Assuming there have been no reversible errors on fact or law, the appellate judges are not to usurp the trial judge’s role in discretionary matters, barring a decision so “clearly wrong” as to yield a truly unjust result. [ 16 ] I agree that the standard of review for issues one to four is that of palpable and overriding error and that the standard of review for issue five, being a discretionary decision, is one of great deference, as set forth in para. 28 of Towers . Analysis and Decision

[ 17 ] The evidence at trial was both oral and documentary. Eleven witnesses testified, some called by the applicant and some by the respondent. The documentary evidence included health records, nurses’ and doctors’ notes, the medical report of Dr.

Guenther and, in particular, an Estate Planning Information Sheet and a Memorandum, both completed by the estate officer who met with Ann on October 20, 1980, contemporaneous with the taking of instructions and the preparation and execution of the will. [ 18 ] Following receipt of the evidence and submissions of counsel, the trial judge reserved her decision and thereafter wrote a thorough and well-reasoned judgment. [ 19 ] She acknowledged that there was a basis for alleging the existence of suspicious circumstances surrounding the preparation and execution of the will.

She concluded on the evidence, however, that the suspicious circumstances had been dispelled. [ 20 ] She acknowledged that the evidence pertaining to Ann’s knowledge of the extent of her estate could have been better, but concluded on the evidence that it was sufficient, particularly where, as here, Ann had demonstrated considerable knowledge as to her assets, had provided the estate officer with the names of her siblings and the number of children each had and had specifically instructed that she wanted to leave her entire estate to Jake, or, if he should predecease her, to his son, the respondent, and that she did not want to leave anything to her siblings. [ 21 ] The trial judge considered the allegations of undue influence.

She found that there was absolutely no evidence of that and that the allegation and entire argument were based on conjecture. [ 22 ] She addressed the fact of Ann’s schizophrenia. She considered both the medical evidence and the evidence of lay witnesses familiar with Ann at the material time and concluded that Ann had testamentary capacity on October 20, 1980, when she executed her will. [ 23 ] The applicant does not assert that the trial judge made any error in law in her decision.

Rather, as I have stated, his appeal as regards issues one through four is founded entirely on what he asserts as palpable and overriding errors of fact or errors in inferences drawn upon the factual findings made by the trial judge, or errors of mixed law and fact. I have not been persuaded by the applicant that the trial judge made any palpable and overriding error and thus would dismiss the applicant’s appeal in respect of issues one through four. [ 24 ] With respect to issue five, the trial judge advised the parties that costs might be spoken to if they could not be agreed upon.

Costs were spoken to and the trial judge gave separate reasons and awarded costs in favour of the respondent on a party and party basis against the applicant. [ 25 ] Her reasons make clear that she fully considered the arguments presented in light of the facts and the law. [ 26 ] In my opinion, the trial judge made no reversible error of fact or law in her decision as to costs, nor was her decision wrong, let alone so clearly wrong as to amount to a truly unjust result.

I would therefore dismiss the applicant’s appeal on issue five. [ 27 ] In conclusion, I would dismiss the applicant’s appeal with costs in favour of the respondent against the applicant. J.A. I agree: J.A. I agree: J.A.