Wright v. Wright, 2013 NSSC 288

SUPREME COURT OF NOVA SCOTIA Citation: Wright v. Wright , 2013 NSSC 288 Date: 20130920 Docket: Hfx. No. 370937 Registry: Halifax Between: Dennis Eliott Wright Applicant v. Cecil Lawrence Wright Jr. Respondent Judge: The Honourable Justice Cindy A.

Bourgeois Heard: September 9 and 10, 2013, in Halifax, Nova Scotia Written Decision: September 20, 2013 Counsel: Dennis Eliott Wright, Applicant, in person Cecil Lawrence Wright, Jr., Respondent, in person By the Court : [ 1 ] This decision pertains to an Application for Proof in Solemn Form of the last Will and testament of Eileen Mildred Wright, who died on March 21, 2011, at the age of 75. The Application is brought by Mrs. Wright ’ s grandson, Dennis Wright. The Will being challenged in the Application was purportedly executed by Mrs. Wright sometime in March 2011. It appoints Mrs.

Wright ’ s son, Cecil Wright, as executor and trustee of the estate, and provides that her other son, Ronald Wright, would serve as alternate executor and trustee in the event Cecil Wright was unwilling or unable to do so. Both sons are the only named beneficiaries in the Will. [ 2 ] In the Application and supporting material, Dennis Wright alleges that his grandmother lacked the necessary testamentary capacity to execute a Will in March of 2011, and that she did not understand the contents of the Will being executed.

He further makes strong allegations of fraud, undue influence and duress against his father Cecil Wright and sister Danielle Jackson, with whom his grandmother was residing when the Will was executed. [ 3 ] A Notice of Contest was not filed by any interested party, nor by Cecil Wright who had been issued a Grant of Probate on June 15, 2011. Cecil Wright did appear at the hearing and initially advised that he was not contesting Dennis Wright ’ s Application. However, after hearing evidence adduced in support of the Application, Cecil Wright advised the Court he did wish to refute some of the allegations.

Notwithstanding the lack of a Notice of Objection, the Court permitted Mr. Wright to call evidence, although in the circumstances, yet another adjournment was not considered appropriate given several appearances had been previously adjourned.

Background Facts [ 4 ] The deceased, Eileen Wright, was a long-time resident of Beechville. She and her husband, originally from the area, had spent a number of years living in Massachusetts, returning home in 1984. They used their savings from many years of hard work to build their home at 22 Oliver Street, Beechville. Mrs. Wright was widowed, but remained in her Beechville home following the death of her husband. [ 5 ] Although Mrs. Wright only had two sons, she was blessed with several grandchildren and great-grandchildren.

From the evidence, it is clear she was a well-loved and respected member of the Beechville community, being a friend and source of guidance to many. In or around 2006, Dennis Wright moved from the United States and began residing with his grandmother at 22 Oliver Street. He remains to this day in that home. [ 6 ] In May of 2010, Mrs. Wright refinanced her home and added Dennis Wright to the title as a joint owner. He also executed, along with his grandmother, a mortgage in favour of the Toronto-Dominion bank.

At the same time, Eileen Wright executed a Will, specifically bequesting her home and contents to Dennis Wright, her jewellery to her granddaughter Danielle Jackson, with the residue of her estate to be divided between her sons. [ 7 ] Sadly, Mrs. Wright ’ s health deteriorated. In December of 2010, the family was advised that her condition was terminal and that she was to be in palliative care. She was discharged home to 22 Oliver Street, but was re-hospitalized shortly thereafter. Despite her medical caregivers encouraging her to remain in hospital, Mrs.

Wright was insistent that she be discharged home for her final days. She did not return to her own home however, but spent the final few weeks of her life at the home of her granddaughter Danielle Jackson at 88 States Lane, Halifax, where she died on March 21, 2011. While there, she was confined to a hospital bed in the livingroom. [ 8 ] At some point prior to her death, Mrs. Wright was presented with a Will. It is unclear on what date the execution took place, as it is not dated. An “ X ” is placed on the last page of the Will where the Testatrix ’ s signature would be expected.

The Will has the signatures of two witnesses, Sgt. Craig Smith and Marsha Peterson. The Will is six pages in length. Neither Mrs. Wright nor the witnesses initialled or marked in any way any of the five pages preceding the page with Mrs. Wright ’ s mark. It is this Will which Dennis Wright questions. Issues [ 9 ] The sole issue before the Court is whether the Will purportedly executed by Mrs. Wright in March of 2011 is valid. Based on the arguments raised, this will entail several considerations: (

a) Did Mrs. Wright possess the necessary testamentary capacity at the time the Will was executed? (

b) Did Mrs. Wright understand the contents of the Will being executed and approve of those contents? (

c) Did Mrs. Wright execute the Will on her own accord in the absence of undue influence or duress? [ 10 ] A response of “ no ” to any of the above questions will serve to invalidate the Will. Which party bears the burden of proof in relation to the above inquiries has been considered in many authorities. Legal Principles

[11] The Supreme Court of Canada has set out the required elements of proof for determining the validity of Wills in Vout v. Hay, (SCC), [1995] 2 S.C.R. 876. That decision has been followed many times by this Court - see for instance Willis Estate(Re), 2009 NSSC 231; Nieuwland v. Yorke Estate, 2011 NSSC 19, and Fawson Estate (Re), 2012 NSSC 55. [12] In Willis supra, Justice Murphy helpfully reviewed the Supreme Court of Canada’s decision and the principles to be takentherefrom as follows: 8 The leading decision addressing the requisite elements of proof in determining the validity of Wills is Vout v.

Hay, (SCC), [1995] 2 S.C.R. 876. That decision, which has recently been followed by this Court in Ramsay Estate (Re), 2004 NSSC 140 andRe Jessie May Coleman (Estate), 2008 NSSC 396, addressed the confusion surrounding the interrelation of suspicious circumstances,execution, testamentary capacity and undue influence. Justice Sopinka, writing for the Court in Vout stated as follows (at p. 889): [26] ... Although the propounder of the will has the legal burden with respect to due execution, knowledge and approval, andtestamentary capacity, the propounder is aided by a rebuttable presumption.

Upon proof that the will was duly executed with therequisite formalities, after having been read over to or by a testator who appeared to understand it, it will generally be presumed that thetestator 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. 9 The proponents of a will, in this case the Respondents with respect to the Second Will, have the onus to establish on a balance ofprobabilities that the formalities of the Wills Act were complied with, and that the testator, possessing a disposing mind and memorygiving him testamentary capacity, knew and approved its content (Vout, paras. 19 and 20).

As the Applicant acknowledges that theSecond Will was executed (by someone) at a time when James Willis would have had testamentary capacity and the ability to understandand approve contents, the Respondents may be deemed to have satisfied their initial onus as proponents of the Second Will, giving rise toa rebuttable presumption that will is valid. 10 The Supreme Court noted, at para. 25 in Vout, that the suspicious circumstances which will rebut the presumption in favour of awill's validity may relate to various issues.

The Court identified (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 thetestator was overborne by acts of coercion or fraud. [13] Justice Murphy further reiterated that the burden of proof is different if undue influence is alleged.

He writes: 12 Once suspicious circumstances arise and the presumption of validity is spent, the propounder of the will resumes the legal burdenof proving due execution, the testator's knowledge and approval, and, if it is an issue, testamentary capacity.

Those issues must be provedin accordance with the civil balance of probabilities standard (Vout, para. 27, supra). 13 When undue influence is alleged, the burden of proof does not revert to the proponent of the will, but rests with those attacking it.In Vout, the Supreme Court of Canada stated at para. 28: [28] It might have been simpler to apply the same principles to the issue of fraud and undue influence so as to cast the legal burden ontothe propounder in the presence of suspicious circumstances as to that issue ....

Nevertheless, the principle has become firmly entrenchedthat fraud and undue influence are to be treated as an affirmative defence to be raised by those attacking the will. They, therefore, bearthe legal burden of proof. No doubt this reflects the policy in favour of honouring the wishes of the testator where it is established thatthe formalities have been complied with, and knowledge and approval as well as testamentary capacity have been established. Todisallow probate by reason of circumstances merely raising a suspicion of fraud or undue influence would tend to defeat the wishes of

the testator in many cases where in fact no fraud or undue influence existed, but the propounder simply failed to discharge the legalburden. Accordingly, it has been authoritatively established that suspicious circumstances, even though they may raise a suspicionconcerning the presence of fraud or undue influence, do no more than rebut the presumption to which I have referred. This requires thepropounder of the will to prove knowledge and approval and testamentary capacity. The burden of proof with respect to fraud and undueinfluence remains with those attacking the will. See Craig v.

Lamoureux, (UK JCPC), [1920] A.C. 349; Riach v.Ferris, (SCC), [1934] S.C.R. 725; Re Martin, (SCC), [1965] S.C.R. 757, supra. 14 This Court in Ramsay, supra, reaffirmed the direction in Vout that the burden of proving undue influence remains with thoseattacking the will, and that to establish undue influence it is not sufficient to show only that the beneficiary had the power to coerce thetestator, but it must be demonstrated that the overbearing power was exercised and that because of its exercise the will was made(Ramsay, paras. 32, 33, 50). [14] So, based on the above, if Dennis Wright can by the evidence presented raise a suspicion that Mrs.

Wright lacked testamentarycapacity and/or did not fully appreciate the contents of the Will, the burden will shift to Cecil Wright to establish that she in fact did. With the third consideration, however, the burden remains with Dennis Wright to establish through the evidence, on a balance ofprobabilities the existence of duress or undue influence. Analysis [15] Both parties were self-represented. As such, the Court was presented with evidence and submissions which were not relevantto the narrow issues to be determined in the Application.

Although both Dennis and Cecil Wright conducted themselves in an exemplaryfashion before the Court, large portions of the evidence dealt with “old hurts” and family history not relevant to whether Mrs. Wright’sMarch 2011 Will should be found to be valid. As such, the Court will not undertake a review of the evidence as fully as it mightotherwise do. This family has, through the loss of Mrs.

Wright, suffered greatly and I am loathe to add to it by repeating in this decisionirrelevant and potentially hurtful information. [16] The above being said, the Court was presented with ample relevant evidence to decide the issue before it. From the relevantevidence before the Court, Dennis Wright has raised a suspicion with respect to both Mrs. Wright’s testamentary capacity at the time theWill was executed, as well as to whether she had knowledge of, and approved of the contents thereof. In my view, Cecil Wright failed toestablish on a balance of probabilities that Mrs.

Wright had testamentary capacity and that she understood and agreed with the contentsof the Will. I will explain why I reach the above conclusions. [17] At the time Mrs. Wright executed the Will, it is unrefuted that she was very ill. It is acknowledged that in December of 2010,the family was advised she was terminally ill. Further, when discharged from hospital in February of 2011, Mrs. Wright’s mobility waslimited and she was receiving “end of life” medication, including morphine. [18] Mrs. Wright died March 21, 2011.

It is unclear when in March the Will was executed, although at most, it was within threeweeks of her death. Jermaine Howe-Bundy visited with Mrs. Wright on the evening the Will was executed. Ms. Howe-Bundy hasknown Mrs. Wright for her entire life, and was a neighbour for many years. She considered Mrs. Wright “a second mother”, andinteracted with her frequently. [19] Mrs. Howe-Bundy testified that she was present at 88 States Lane and became aware that a Will was being presented to Mrs.Wright by virtue of a conversation with her daughter Deanne, who reported she was requested to serve as a witness. Ms.

Howe-Bundyadvised her daughter not to have anything to do with the Will being signed and they left the home. [20] When asked about Mrs. Wright’s mental capacity, Ms. Howe-Bundy testified that in the weeks preceding her death, Mrs.Wright was “in and out” and incoherent at times. Specifically, it was Ms. Howe-Bundy’s view that on the evening Deanne was asked toserve as a witness, Mrs. Wright had been “in and out” mentally during her visit. She was of the view that even though at times Mrs.Wright appeared to recognize her, it was highly questionable that she could understand a legal document of any length.

I accept Ms.

Howe-Bundy ’ s evidence. [ 21 ] Devan Howe also testified at the request of the Applicant. He is the son of Ms. Howe-Bundy and knew Mrs. Wright for his entire life. Mr. Howe testified that Mrs. Wright babysat him from the time he was an infant until the end of elementary school. She was like a grandmother - he called her “ Nan ” . Mr. Howe testified he continued to have a close relationship with Mrs. Wright and she was a good source of guidance and advice for him. [ 22 ] Mr. Howe testified he had visited with Mrs.

Wright both during her hospitalization and also later when she was in the home of her granddaughter Danielle. Mr. Howe testified that he noted a deterioration in Mrs. Wright ’ s mental state when she was in the hospital, but this further deteriorated significantly during his visits at Danielle ’ s home. He testified that he would need to explain to Mrs. Wright who he was. He further testified that he attended a birthday party for Mrs. Wright in March 2011. Mr. Howe testified that on this occasion, it was like Mrs.

Wright had “ gone back to an infant stage ” as she was not coherent and did not appear to be aware of what was going on around her. I accept Mr. Howe ’ s evidence. [ 23 ] The above circumstances raise a suspicion regarding Mrs. Wright ’ s mental capacity at the time of execution. There was, in my view, insufficient evidence to displace that suspicion. Although I acknowledge Cecil Wright testified that his mother was mentally fit on the evening in question, it is, without other evidence in support of mental capacity, inadequate.

Given her precarious health and the medications being taken, the Court would have preferred the evidence of an objective witness, preferably a medical practitioner, as to Mrs. Wright ’ s capacity at the time of execution. Although one witness to the Will, Marsha Peterson, did testify, her evidence did not serve to displace the suspicion raised, as she acknowledged that she spoke very little to Mrs. Wright that evening. [ 24 ] As noted above, the Court also is suspicious based on the evidence presented by Dennis Wright that his grandmother may not have been aware of the contents of the Will.

Marsha Peterson testified that she recalled Mrs. Wright being presented with the Will by Cecil Wright. She testified that Mrs. Wright asked if, before signing the Will, “ whether Dennis was getting the house ” . Cecil Wright replied that Dennis was getting the house, and Mrs. Wright subsequently signed the Will with an “ X ” . This evidence is troublesome as, unlike the earlier Will executed in May of 2010, the March 2011 Will did not convey Mrs. Wright ’ s home to her grandson Dennis.

Cecil Wright ’ s evidence not only failed to displace the suspicion raised by the above evidence, but served to establish on a balance of probabilities that Mrs. Wright had not either read, nor had read to her, the March 2011 Will and further she was, on a balance of probabilities, unaware of the contents. [ 25 ] In his evidence, Cecil Wright testified that the lawyer who drafted the Will both emailed a copy to him, and provided a copy to him personally. Mr. Wright testified that he never provided a copy to his mother to review, nor did he read it to her. Mr.

Wright testified that on the evening the Will was executed, he answered the questions his mother had about the contents of the Will. He acknowledges Mrs. Wright asked whether Dennis was receiving her house and he answered in the affirmative. Mrs. Wright asked whether Danielle was getting her jewellery, and again, he answered affirmatively. Mrs. Wright asked whether her son Ronnie was going to be Trustee, and again Cecil Wright answered her with a “ yes ” . Mr. Wright further testified that Mrs.

Wright did not read nor did anyone read to her the contents of the Will on that evening. [ 26 ] The problem with the answers Mr. Wright gave his mother regarding the contents is that none are accurate reflections of what in fact is contained in the Will. Mr. Cecil Wright is executor and trustee, with the entire estate being divided between himself and his brother Ronald. Dennis does not receive Mrs. Wright ’ s house; Danielle does not receive her jewellery; and Ronald is not the trustee - he only acts in that capacity if Cecil is unable or unwilling to do so. I am far from satisfied that Mrs.

Wright, given this evidence, was aware of the contents of the Will. [ 27 ] Having made the above findings regarding Mrs. Wright ’ s mental capacity and knowledge of the contents of the Will, it is not necessary to address the issue of undue influence. [ 28 ] The Will executed by Mrs. Wright in March 2011 is invalid and shall not be admitted to probate. J.