Kenny v Kenny Estate, 2016 NSSC 214

Supreme Court of Nova Scotia Probate Court of Nova Scotia Citation: Kenny v Kenny Estate , 2016 NSSC 214 Date: 20160812 Docket: Hfx. No. 439153 Probate No.: 60774 Registry: Halifax Between: Erin Kenny and Jennifer Kenny Applicants v. Angela Moss as executrix of the Estate of Leslie Kenny Respondent Library Heading Judge: The Honourable Justice Arthur W.D. Pickup Heard: April 25, 26, 27, 2016, in Halifax, Nova Scotia Final Written Submissions: March 15, 2016, Applicants’ brief April 1, 2016, Respondent’s brief April 8, 2016, Applicants’ reply brief Written Decision: August 12, 2016 Subject: Probate; proof in solemn form; testamentary capacity

Summary: The testator’s will originally left his entire estate to his wife, and to his two children if she predeceased him. Both his wife and son predeceased him, and he executed a new will, under which his daughter was sole beneficiary. After the testator’s death the second will was admitted to probate. The testator’s granddaughter brought an application for proof in solemn form. The estate objected to the application. Issues:

(1) Was the granddaughter a “person interested in the estate” under the Probate Act ?

(2) Was any portion of the estate undistributed at the date of the application?

(3) Who had the burden of proof, and did the doctrine of suspicious circumstances apply?

(4) Did the testator have the required capacity when he executed the will? Result:

(1) The testator’s granddaughter was a “person interested in the estate” under the Probate Act by virtue of being a person who would potentially share on an intestacy. She held that status because she was “issue” of the testator within the meaning of the Intestate Succession Act .

(2) The application for proof in solemn form was filed after the estate was distributed. There being no assets left in the estate, the court dismissed the application.

(3) In the alternative, the estate conceded that the burden was on the proponent of the will to establish testamentary capacity where suspicious circumstances existed.

(4) Based on the evidence, the court was satisfied that the testator had testamentary capacity when he made the will. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET. SUPREME COURT OF Nova Scotia Probate Court of Nova Scotia Citation: Kenny v Kenny Estate , 2016 NSSC 214 Date: 20160812

Docket: Hfx. No. 439153 Probate No.: 60774 Registry: Halifax Between: Erin Kenny and Jennifer Kenny Applicants v. Angela Moss as executrix of the Estate of Leslie Kenny Respondent Judge: The Honourable Justice Arthur W.D. Pickup Heard: April 25, 26, 27, 2016, in Halifax, Nova Scotia Final Written Submissions: March 15, 2016, Applicants’ brief April 1, 2016, Respondent’s brief April 8, 2016, Applicants’ reply brief Counsel: Brian Casey, Q.C. and Geoffrey J.

Franklin, for the Applicants Jeremy Gay, for the Respondent By the Court: [ 1 ] By a will dated December 2004, Leslie Kenny left his entire estate to his wife, Audrey Kenny, with the proviso if she predeceased him his estate was to be divided between his two children, Philip Kenny and Angela Moss. As it transpired, Mrs. Kenny predeceased him as did his son, Philip Kenny, who died of cancer on May 11, 2011. [ 2 ] Mr. Kenny had Timothy Matthews, Q.C. prepare a new will which was executed on November 22, 2012. Mr. Kenny died June 3, 2013.

The 2012 will was admitted to Probate and a general grant of Probate was issued on July 29, 2013. Mr. Kenny’s daughter, Angela Moss, is the sole beneficiary under the will. [ 3 ] Erin Kenny, a granddaughter of Mr. Kenny, filed an application for proof in solemn form on May 2, 2015. Angela Moss, as personal representative of the estate, filed a notice of objection on October 1, 2015, in which she objected to Ms. Kenny’s application on the following grounds: 4. The applicant, Erin Kenny, has no standing to seek proof in solemn form of the Will as she was not a person interested in the estate of Kenny as required by

section 31 of the Probate Act (supra) and as defined in subsection 63(1) and subsection 52(1) of the Probate Court Practice Procedure and Forms Regulations . 5. The distribution of the assets of the estate of Kenny to Angela Susan Moss was completed on or about February 10, 2015 and the estate bank account was closed on or about the same day. 6. On or about February 26, 2015, the estate of Kenny completed an informal accounting to the Registrar of Probate further to section 69(3) of the Probate Act (supra), as amended and as prescribed by the Probate Court Practice and Forms Regulations,

section 54, in lieu of a formal accounting and the estate was closed. 7. The Probate Act (supra) provides in section 31(2) that the court can hear an application for proof in solemn form after six months from the date of the grant but only as to any portion of the estate remaining undistributed at the date of the application for proof in solemn form. 8. The application for proof in solemn form herein was made after all of the assets of the estate of Kenny had been distributed and the estate was closed.

Issues [4] The issues are as follows: i. Is Erin Kenny “a person interested in the estate” within the meaning of the Probate Act, S.N.S. 2000, c. 31, s. 31 and the ProbateCourt Practice, Procedure and Forms Regulations, N.S. Reg. 119/2001? ii. Is there any portion of the estate remaining undistributed as at the date of the application? iii. Who has the burden of proof, and does the doctrine of suspicious circumstances apply? iv. Did Mr. Kenny have the required capacity when he executed the will? Analysis i.

Is Erin Kenny “a person interested in the estate” within the meaning of the Probate Act, and the Probate Court Practice,Procedure and Forms Regulations? [5] An application for proof in solemn form must be made by “a person interested in the estate”. [6] The Probate Act provides as follows at s. 31: Proof in solemn form 31(1) A court may hear a will proved in solemn form and determine the validity of the will where an application asking the court to doso is made by a person interested in the estate of the testator either before or after a grant is made with respect to the will but not after theexpiration of six months from the grant.

(2) Notwithstanding subsection (1), the court may, upon application, where it considers it just, hear a will proved in solemn form atany time after the expiration of six months from the grant and before an order is issued pursuant to

Section 72 as to any portion of theestate remaining undistributed at the date of the application. [7] Ms. Moss submits that this application for proof in solemn form was brought well after the passage of the six month deadline. [8] Probate was granted to Ms. Moss on July 29, 2013.

The application for proof in solemn form was dated and filed on May 1,2015, almost two years later. [9] The court must determine whether it is “just” to hear the application under s. 31(2); even if it is allowed to proceed, theapplication will only pertain to “any portion of the estate remaining undistributed at the date of the application”: s. 31(2). But the firstprerequisite is that the applicant be a “person interested in the estate,” as defined in ss. 52(1) and 63(1) of the Probate Court Practice,Procedure and Forms Regulations. [10] Ms.

Moss says Erin Kenny, the applicant, is not “a person interested in the estate” for the purpose of s. 31 of the Act. She saysthe capacity in which Ms. Kenny claims is as an alternate residuary beneficiary under a predecessor will. Ms. Kenny says she qualifiesas a “person interested in the estate” by virtue of her status as a “person entitled to share in the distribution of the estate on an intestacy”,pursuant to s. 52(1) of the Regulations.

The Intestate Succession Act, R.S.N.S. 1989, c. 236, distributes the estate of an intestate perstirpes among the intestate’s “issue”, subject to the right of a surviving spouse (s 4(7)). The “issue” includes “all lawful linealdescendants of the ancestor” (s 2(b)). [11] In this case, Mr. Kenny’s spouse Audrey predeceased him, as did his son, Philip Kenny, Erin Kenny’s father. Ms. Kenny takesthe position that as a granddaughter she is “issue” of the testator. I am satisfied this is a reasonable

interpretation of the word “issue”, inview of the definition in the Intestate Succession Act, as well as the caselaw. In Smith v. Smith, 2010 MBQB 236, [2010] M.J. No. 325,Spivak J. said: 19 In submitting that the word issue is intended to mean all lineal descendants, the Public Trustee relies on the dictionary meaning ofthat word and the primary or ordinary meaning as noted in the case law. Indeed, Black's Law Dictionary, 7th ed. (St.

Paul Minn.: WestPublishing Co., 1999) at p. 836 defines issue as lineal descendants and lawful issue as including descendants more remote than children.Further, several cases have commented that the primary meaning of issue is descendants of all degrees unless that meaning is clearlydisplaced (see Kernahan v. Hanson et al., (SK CA), [1990] S.J. No. 699, 73 D.L.R. (4th) 286 (C.A.), Re GardnerEstate, (AB KB), [1991] A.J. No. 1247 (Surr. Ct.), 85 Alta. L.R. (2d) 119 and Re Linklater, (BCCA), [1967] B.C.J.

No. 177 (C.A.), 66 D.L.R. (2d) 30). 20 However, the ordinary or dictionary meaning of a word, referred to as the primary meaning, must give way to any modifiedmeaning or secondary meaning required by the context (see Feeney's Canadian Law of Wills, para. 11.20). So the ordinary meaning of aword used in a will must be modified by the context of the will as a whole, read in the light of the circumstances known to the testator atthe time the will was made.

The meaning is determined not only from the will, but also from the will as read in light of the surroundingcircumstances under the "armchair rule" (Feeney's Canadian Law of Wills, para. 11.14). 21 Certainly the jurisprudence makes it clear that context will govern the meaning of issue and other words that have a primary ortechnical meaning. Accordingly several courts have interpreted the word issue restrictively to mean children or grandchildren (seeJackson Estate v. Jackson, [1994] B.C.J. No. 1532 (S.C.), Bicknell Estate v. McDougall, [1992] O.J. No. 2800 (Ont. Ct. J. (Gen. Div.))

and Re Hudson's Will, (NS SC), [1970] N.S.J. No. 199 (S.C. (T.D.)), 14 D.L.R. (3d) 79). And this is sonotwithstanding the fact that the will was drafted by a lawyer. [12] In Eastern Trust Co. v. Leblanc (1962), (NS CA), 33 D.L.R. (2d) 609, 1962 CarswellNS 12 (S.C. in banco),Coffin J. discussed the

interpretation of “issue” as depending on the context of the will. In Price Estate v. Mann, 2011 NSSC 16, 2001CarswellNS 32, for example, Hamilton J. (as she then was) interpreted the phrase “[i]f my daughter dies before becoming entitled toreceive such monies, my residuary estate shall be distributed to her issue in equal shares” to mean “lineal descendants”. [13] I am satisfied that Erin Kenny is “a person interested in this estate” and has standing to bring this application. ii. Is there any portion of the estate remaining undistributed as at the date of the application? [14] Ms.

Kenny acknowledges that this application was brought after the distribution of the estate. The application was filed on May1, 2015 with the necessary affidavit not filed until June 12, 2015. I note probate was granted to Ms. Moss on July 29, 2013. Ms. Kennysays that she has brought a parallel proceeding to prove that the testator’s alleged incapacity renders transfer of certain personal assetsthat were made void. Therefore, certain assets may be returned to the estate. [15] The applicant cites no authority to suggest that the court can ignore the plain language of the Probate Act in thesecircumstances.

At the time the application was made there were clearly no assets left in the estate. [16] At paras. 10, 11, 12 and 13 of the Angela Moss affidavit, she states: 10.

On or about February 10, 2015, I completed the distribution of the assets of my father’s estate and the estate bank account wasclosed on the same date as appears from the Royal Bank of Canada account statement for the Estate of Leslie Kenny showingwithdrawal of the funds in the account produced herewith as Exhibit “C” to this my affidavit and my CIBC transaction record showingthe deposit of the funds to my personal CIBC account produced herewith as Exhibit “D” to this my affidavit. 11.

On or about February 25, 2015, I signed a Form 37 – Personal Representative’s Affidavit, a Form 38 – Consent – Accounting NotRequired and a Form 36 – Release, copies of which are attached hereto as Exhibit “E” to this my affidavit, which I understand from theproctor of my father’s estate, Timothy C. Matthews, Q.C. and do verily believe, were subsequently field with the Registrar of Probate atHalifax on or about February 26, 2015. 12.

The assets of my father were administered by me under the Grant of Probate consisted of two bank accounts with the Royal Bankcomprising chequing account number; 01943-5163282 - $103,373.67 and tax free savings account number; 56325743 - $5,358.12 andhousehold goods, etc. - $1.000.00, as appears from the inventory of my father’s estate, a copy of which is produced herewith as Exhibit“F” to this my affidavit. 13. All of my father’s other financial assets did not form part of his estate as they either were jointly held with me or I was thedesignated beneficiary. [17] It took Ms.

Kenny almost two years to file her application for proof in solemn form. The evidence is clear that on May 1, 2015,when the application was filed, all assets of the estate were distributed. There being no assets left in the estate, this application isdismissed. [18] This determines the matter. However, in the event that I am wrong in my determination, I will go on to consider whether Mr.Kenny had the required capacity when he executed the will. iii. Who has the burden of proof, and does the doctrine of suspicious circumstances apply? [19] The burden of proof is on Ms.

Moss with respect to execution, knowledge and approval, and the testamentary capacity of Mr.Kenny. Upon proof of due execution there is a rebuttable presumption that the testator knew and approved of the contents of the willand had the necessary testamentary capacity. However, where suspicious circumstances exist, this presumption is lost. [20] In final submissions, counsel for Ms. Moss acknowledged that this doctrine applies and agreed the burden rests on Ms.

Moss toprove on a balance of probabilities that Leslie Kenny had the requisite testamentary capacity, and that he had the appropriate knowledgeand approval of the contents of the 2012 will. v. Did Mr. Kenny have the required capacity when he executed the will? [21] Testamentary capacity as a principle was defined in Feeney’s Canadian Law of Wills, 4th Edition at s. 2.6 as follows: To use the time-honoured phrase, a person must be of “sound mind, memory and understanding” to be able to make a valid will.

When awill is contested on the ground of mental capacity, the propounder must proved [sic] that a testator understood what he or she was doing: that the testator understood the “nature and quality of the act.” The testator must be able to comprehend and recollect what property heor she was possessed, the persons that ordinarily might be expected to benefit, the extent of what is being given to each beneficiary and,finally, the nature of the claims of others who are being excluded. The Evidence [22] In support of the validity of the will, the following persons filed affidavits: i. Timothy Matthews, Q.C; ii.

Frederick Saturley;

iii. Angela Moss; iv. Kimberly Ann Ball; and v. Kevin John Ball. [ 23 ] All of these individuals were cross-examined except Kevin John Ball. Timothy Matthews, Q.C. [ 24 ] Mr. Matthews filed an affidavit dated December 15, 2015. He is an experienced lawyer who specializes in estate planning and estate litigation. The following are the relevant paragraphs from his affidavit: 6.

My first involvement with the late Leslie Kenny (“Kenny”) occurred on the 26 th of November, 2004 when I met with Kenny, Audrey Kenny and his investment advisor, Frederick Saturley in a conference room at the offices of CIBC Wood Gundy to take instructions for wills and powers of attorney for Kenny and Audrey Kenny. 7. This involvement resulted in the execution of Wills of Kenny and Audrey Kenny dated the 23 rd of December, 2004. 8.

On the 27 th of June, 2012, I received an email from Frederick Saturley, a copy of which is produced herewith as Exhibit “A” to this my affidavit, advising that Kenny and Audrey Kenny wanted to change their wills following the death of their son, Philip. 9. In response to this email, I telephoned Kenny and Audrey Kenny shortly thereafter. 10. I initially spoke with Audrey Kenny who told me that her husband would be home later that day. 11. When I called back, I was able to speak with Kenny and I explained to him that Frederick had suggested that they might want to make changes to their wills. 12.

Kenny responded to me that he would be speaking with his daughter, Angela Moss and Frederick Saturley about this. 13. On or about the 19 th of July, 2012, I spoke with Angela Moss on the telephone and I explained to her that I was attempting to determine her parents’ intentions regarding changes to their wills. 14. After some discussion with Angela Moss, she said that she was going to speak with her parents to see whether or not they really did want to make any changes to their wills. 15.

After this discussion, I made a Memorandum to File summarizing the discussion, a copy of which is produced therewith as Exhibit “B” to this my affidavit. 16. On the 19 th of November, 2012, I spoke with Frederick Saturley on the telephone and received instructions regarding changes to Kenny’s will and the deed to his property at 32 Strath Lane, of which I made a written note, a copy of which is produced herewith as Exhibit “C” to this my affidavit. 17. On the afternoon of the 22 nd of November, 2012, I drove to Kenny’s home at 32 Strath Lane. 18.

I met with Kenny, Angela Moss and Frederick Saturley in his living room. 19. There was about ten or fifteen minutes of social conversation including my expression of condolences to Kenny on the recent passing of his wife, some conversation about Frederick Saturley’s upcoming golf vacation in Florida to which Kenny commented that he was no longer playing golf, and there was some joking back and forth between Kenny and Frederick Saturley. 20.

After this initial period of conversation, I advised Kenny that I had drafted a new will for him as well as a deed to change the ownership of 32 Strath Lane into the joint names of himself and Angela Moss. 21. With respect to the deed, Kenny commented to the effect that he intended to continue to live at 32 Strath Lane but eventually it would be Angela Moss’s property. 22. The deed was executed first being signed by Kenny, witnessed by Frederick Saturley and the affidavit of execution taken by me. 23. A copy of the executed deed is produced herewith as Exhibit “D” to this my affidavit. 24.

Once the deed was executed, I proceeded to go over the will with Kenny. 25. I handed Kenny a copy of the will to review. 26. I explained to Kenny that the will appointed Angela Moss as his executrix and that it gifted all of his estate to Angela Moss, to which he responded that this was what he wanted. 27. I added that, in the event that Angela Moss should die before him, at which point he interjected “That’s not going to happen” and I continued saying “Well your grandchildren” to which he responded that was “fine”. 28.

We proceeded to have the will executed with Kenny signing it and initialling each page in the presence of myself and Frederick Saturley and Frederick Saturley and myself signed the will as witnesses in the presence of Kenny, a copy of which executed will is

produced herewith as Exhibit “E” to this my affidavit. 29. There was nothing remarkable about this meeting on the 22 nd of November, 2012. 30. Angela Moss took no

part in the conversation concerning the documents and I had no concerns that the deed and the changes to the will were a result of any pressure on Kenny from Angela Moss. 31. I am satisfied that Kenny wanted Angela Moss to inherit his home and the rest of his estate. 32. Nothing was said or done raised any concerns for me about Kenny’s mental abilities or his understanding of the will and the deed. [ 25 ] Frederick Saturley is a financial advisor who advised Mr. Kenny, prior to 1997 and up to Mr. Kenny’s death, except for the period of October 2008 to September 2010. [ 26 ] Mr. Saturley knew Mr.

Kenny socially, as they golfed together from approximately 2003 to 2008 at Grandview Golf Course. Although he did not do any business between October 2008 and September 2010 with Mr. Kenny, he kept in touch and continued to visit him, and played some golf with him. The following are the relevant paragraphs from Mr. Saturley’s affidavit (dated December 24, 2015, filed January 14, 2016): 10. In September, 2010 I began my own portfolio management investment business, Turnpointe Wealth Management Inc., and at that time I became Kenny’s financial advisor after I became licensed as a portfolio manager. 11.

After resuming my investment advisor capacity of Kenny’s financial affairs in 2010, I would contact him on about a monthly basis by phone or by personal visit to his home at 32 Strath Lane, Dartmouth, Nova Scotia and I continued as Kenny’s investment advisor up to his death. 12. During all of the time that I was his investment advisor, Kenny appeared to me to have a good understanding of his financial affairs and always had the ultimate control of his financial affairs. 13.

In or about September, 2008, Kenny advised me that his son, Philip requested to be added as a party to Kenny’s investment accounts but Kenny clearly stated he did not want to relinquish any control to his son, so he did not give Philip any authority or interest in his investment assets. 14. At no time while I was the investment advisor of Kenny did his son, Philip have trade authority or any other responsibility with respect to the investment accounts of Kenny. 15.

After the demise of Philip, Kenny’s daughter, Angela Moss did not have any involvement with Kenny’s investment accounts and had no trade authority or authority to make any investment decisions with respect to the accounts of Kenny. 16. Furthermore, after Philip Kenny’s demise, during Kenny’s lifetime, his daughter, Angela Moss did not do or look after her father’s banking or any other financial affairs to my knowledge. 17. When Philip Kenny became ill, Kenny advised me that his son, Philip, had cancer and was seriously ill and was not expected to survive it. 18.

When Kenny’s wife, Audrey Kenny passed away, Kenny appeared in conversations with me, to be well aware of his wife’s demise and to be grief stricken over it and to have never stated anything that indicated that he thought this wife was still alive. 19. During two conversations with Kenny, subsequent to his wife’s demise, Kenny clearly knew his wife had died as he offered to give me her golf clubs as she was gone and would no longer be using them. 20.

After John Moss died, who was the husband of Angela Moss, and prior to the death of Audrey Kenny, on or about the 26 th of June, 2012, Kenny and his wife, Audrey Kenny transferred the entirety of their joint investment account in their names into a new joint investment account in the names of Kenny and/or Audrey Kenny and/or Angela Moss as recorded in the account documentation produced herewith as Exhibit “B” at which time the joint investment account was valued at $346,575.59. 21.

After the death of Audrey Kenny, Kenny and Angela Moss executed a joint investment account on or about the 4 th of April, 2013, as appears from the account documentation produced herewith as Exhibit “C” to this my affidavit, at which time the account was valued at $415,209.51. 22. Further, on or about the 4 th of April, 2013, Kenny designated Angela Moss as beneficiary of his RIF account as appears from the Designation and Change of Beneficiary produced herewith as Exhibit “D” to this my affidavit, at which time the RIF account was valued at $23,257. 23.

Prior to the transfer of the investment account referred to in paragraphs 20 and 21 and the beneficiary designation referred to in paragraph 22, Kenny had expressed to me in words to the effect that he wanted his daughter, Angela Moss to be looked after by making her the sole recipient of his assets and that in doing so he would not be giving any of his money to his grandchildren or, in particular, his daughter-in-law towards whom he expressed his dislike. 24.

Further, on the 26 th of June, 2012, at the meeting of myself, Kenny, and Angela Moss to transfer the joint investment account referred to in paragraph 20 herein, Kenny and Audrey Kenny instructed me after Angela Moss had left the meeting that they wanted to change their wills, to make Angela Moss their sole beneficiary with no provision for the late Philip Kenny’s wife or the grandchildren. 25. As a result of these instructions, I sent an email to Timothy C. Matthews, Q.C. on June 27, 2012., a copy of which is provided

herewith as Exhibit “E” to this my affidavit, requesting him to follow up to arrange the will changes for Kenny and Audrey Kenny. 26. On or about the 25 th day of July, 2012, I received an email from Angela Moss requesting me to contact her father about their wills, a copy of which is produced herewith as part of Exhibit “F” to this my affidavit. 27.

As a result of this email from Angela Moss, I spoke to her father and received confirmation from him that they wanted their wills changed to leave everything to Angela, which I advised her of by email dated the 3 rd of August, 2012, a copy of which is produced herewith as part of Exhibit “F” to this my affidavit. 28.

On or about the 19 th of November, 2012, I had an email exchange with Angela Moss respecting estate matters of her father, copies of which are produced herewith as Exhibit “G” to this my affidavit, as a result of which I obtained confirmation from her father that Kenny’s home on 32 Strath Lane would be transferred into the joint names of Kenny and Angela Moss and Kenny’s will would be changed after making Angela Moss the sole beneficiary and if Angela Moss predeceased her father, the assets of Kenny would be split evenly among the four grandchildren. 29.

On the 19 th of November, 2012, I advised Tim Matthews to prepare the will and the deed in accordance with Kenny’s directions as set out in paragraph 28 herein and the date of November 22, 2012 at 2:00 pm was set to meet with Kenny. 30 I was present along with Kenny’s lawyer, Timothy C. Matthews, Q.C. and Angela Moss, at Kenny’s home on 32 Strath Lane, when Kenny executed his Last Will and Testament and the Deed to the real property at 32 Strath Lane to Kenny and Angela Moss as joint tenants on the 22 nd of November, 2012. 31.

Timothy Matthews explained to Kenny that Angela Moss would inherit Kenny’s estate and Kenny acknowledged agreement with this. 32. There was nothing in Kenny’s actions or his statements that indicated to me that he was suffering from any delusions during the period of time from the 25 th of June 2012 to the 4 th of April, 2013 when he was arranging for Angela Moss to receive all of the assets. 33. Further, I was not aware of any influence that Angela Moss had in Kenny’s decisions with respect to the dispositions of his assets in favour of Angela Moss. 34.

In my experience with Angela Moss she made it clear she did not wish to be in attendance when I discussed with Kenny his estate plans regarding the distribution of his assets and this was the case except for November 22, 2012 when I asked her to be in attendance at Kenny’s residence when his Last Will and Testament and the Deed were signed. [ 27 ] Mr. Saturley was cross-examined. He was questioned as to why Angela Moss contacted him regarding changes to Leslie Kenny’s will. The following exchange took place: Mr. Casey: Why were they relying on you to get their intentions recorded? Mr.

Saturley: I had been their advisor... financial advisor and actively involved with them for probably... I’m not sure if I recorded it in here or looked back, but it would be probably the late 90's, so probably 1997 or something like that, so I have known them for an extended period of time, and I socialized with Leslie particularly for golfing for things like that, so I became very knowledgeable and they were comfortable with me and I think that’s... they kind of extended that they wanted me to help them as much as I could, and so they rely on me as an advisor as well to do the right thing - in terms of that. Mr.

Casey: I understand that but what I think was the case is that Mr. Kenny was deciding between leaving everything to Angela and continuing with the split that was in place already, which was half to Philip’s side of the family and half to Angela. We think that was the decision that was being made. Mr. Saturley: Well from my understanding was is that... he already made that decision because there was not only Mr. Kenny who indicated that, it was also Audrey because I remember clearly where I sat in the room with Audrey on one side on a chair and Mr.

Kenny on the couch, and I was sitting in the chair sort of between them on the other side... on the other corner of the room, and I asked him what their intentions were and what they wanted to do and that’s what they said they wanted to do now that Philip was gone, that’s what they wanted to do. [ 28 ] Counsel for Ms. Kenny referred to two emails in November 2012 from Ms. Moss to Mr. Saturley. The first was at 11:01 a.m. on November 19, 2012 asking Mr. Saturley to call her father to talk about changes to his will, and, in particular “what he would like to do”. At 11:31:31 a.m., on the same date, Ms.

Moss emailed him as follows: Hi I have a few appointments myself this week and I am not able to get to the city. Maybe you could make arrangements with the lawyer and see him without me being there. I don’t really need to be there. He will need someone there to explain everything cause he is quite confused recently but it could also be grief. Dad an [sic] talked about changing the will to 50% to myself and I also pointed out that he hadn’t included my kids so we had said that 50% to the 4 grandchildren, not sure whether to include Carol in the 50% or not… guess it is up to him. [ 29 ] Counsel for Ms.

Kenny asked Mr. Saturley about this change in intention: Mr. Casey: Can I turn you to the next document, same tab or same exhibit number, but it’s the next email. We think for reasons that don’t really directly concern us, this one was sent by Angela about an hour later, and she says in response to an email from you “I have a few appointments myself this week and I’m not able to get to the city, maybe you could make arrangements with a lawyer and see him

without me being there. I don’t really need to be there. He will need someone there to explain everything cause he is quite confused recently, but it could also be grief...” and then she says “dad and I talked about changing the will, 50% to myself and I also pointed that he hadn’t included my kids, so he said 50% to the four grand-children, not sure whether to include Caroline 50% or not, guess it’s up to him”. Do you see that? Mr. Saturley: Yes I do. Mr. Casey: Do I read that in the course of an hour between the first email when it was 100% to Angela and the second email an hour later that it’s now 50/50? Mr.

Saturley: I don’t know what decision that he may have made. It looks like they talked about it. I don’t see that he had made a firm decision about it.

I don’t know what Angela may or may not have said to him or what he said to her, but my understanding and the consistency was the fact that um what Leslie and Audrey said two or three years earlier, I believe it was two or three years earlier, was no different in terms of his intentions than it was at the end, so I didn’t in my mind see any confusion or misunderstanding or a change from his point of view because when I saw him he re-confirmed that that’s what he wanted to because there was one conversation that I had with um... (inaudible 13:19)... here or not that I had with Audrey and I think there’s an email that contemplates this from me, but I... there was a conversation with Audrey and Les that when I asked them what they wanted to do they... with regards to the grand-children and so, and Audrey started the conversation by saying or the answer that - well let’s...

I want to leave... we just want to leave that up to Angela to make that decision. So once she’s gone, then whatever happens it’s up to her what she wishes to distribute or how she wishes to distribute it. And I think I put that in in an email, I believe it’s part of my submission I think I gave you.

So when I looked at that and I look at all the way across through here, my interaction with Les and Audrey during that time they were consistent all the way through that that’s ultimately what they wanted to do because of Angela’s financial circumstances after losing her husband that she was not in a very good financial position. [ 30 ] Counsel further questioned Mr. Saturley on this issue: Mr.

Casey: So my question is whether you are able to kind of account for what looks to be a comment in Angela’s email on November the 19th that her father was thinking of dividing the property a different way than ultimately was decided. Mr. Saturley: It seems to me... that I don’t know whether it came from Les saying that or whether it was from Angela saying that because she you know felt maybe a little uncomfortable about inheriting everything. She did express that to me about it.

But in my feelings with Les and Audrey, the final will was exactly what they intended to do, so that’s why I didn’t have any hesitation about when he signed the will. This seemed to be that was where his clear intentions along with Audrey at that point. Mr. Casey: From before. Mr. Saturley: From before and all my communication all the way through, so I didn’t have an experience where he said well maybe I should be doing something different. I never had that experience with him. [ 31 ] Angela Moss filed an affidavit on January 14, 2016. The relevant paragraphs as to testamentary capacity are as follows: 39.

I understood what was happening in relation to me being added as a party/owner/holder/designated beneficiary/beneficiary of some of my father’s assets but I made no effort to influence my father’s actions or direct my father in any way. 40. On or about the 25 th of July, 2012, I sent an email to Frederick Saturley requesting him to contact my father about wills for my parents, a copy of which is produced herewith as part of Exhibit “M” to this my affidavit. … 43.

I was present at my father’s home on November 22, 2012 along with Frederick Saturley, Tim Matthews and my father when my father executed the Will but I did not influence my father’s actions with respect to the Will or direct my father in such actions in any way. 44. During his lifetime, my father never showed any signs in his words or actions, of being delusional about any matter. 45. My father was never assessed by a doctor for testamentary capacity or the capacity to deal with real or personal property to my knowledge. 46.

When my mother died my father helped my daughter, Kimberly Ball, myself and a funeral director prepare my mother’s obituary, he cut my mother’s obituary out of the newspaper and kept it on the refrigerator where it remains to this date and he had an old photo of my mother that he kept close. 47. My father often talked about my late mother with me and he would express to me how much he missed her. 48. Even though my mother had passed away, my father still maintained his routine of going for coffee on Tuesday mornings at Mic Mac Mall every week. [ 32 ] Ms.

Moss was cross-examined about the two emails of November 19, 2012 from her to Frederick Saturley. She was unable to account for the difference, but did confirm that there was no conversation with her father between those emails. [ 33 ] Kevin John Ball is the son-in-law of Angela Moss. He is married to Ms. Moss’s daughter Kimberly Ann Ball. He filed an affidavit on January 14, 2016. The relevant paragraphs are as follows: 9.

I noticed that Leslie Kenny became more physically infirm and somewhat more forgetful over the last year or so of his life but he was always someone with whom you could carry on a lively, sensible conversation.

10. After the demise of their son, Philip, I was present on a number of occasions over a period of six months or more when Leslie Kenny and Audrey Kenny discussed changing their wills and leaving everything to their daughter, Angela Moss. [ 34 ] Kimberly Ann Ball, the daughter of Angela Moss, filed an affidavit on January 14, 2016. In her affidavit Ms. Ball outlined the contact she and her family had with her grandparents, Leslie and Audrey Kenny, when they were living. The following are the relevant paragraphs of Ms. Ball’s affidavit: 16.

When my grandmother, Audrey Kenny passed away, I returned to 32 Strath Lane after being there earlier in the day and my mother, Angela Susan Moss and my grandfather, Leslie Kenny were both present and when the funeral home representatives came to take my grandmother, Audrey Kenny’s body away. 17. The day after my grandmother, Audrey Kenny passed away, when someone came to discuss the contents of the obituary, my grandfather, Leslie Kenny participated in the preparation of the obituary. 18.

When the obituary for my grandmother, Audrey Kenny was published, my grandfather, Leslie Kenny cut out the obituary and put it up on the refrigerator. 19. After my grandmother Audrey Kenny passed away, my grandfather, Leslie Kenny always kept a photograph of her nearby. [ 35 ] The applicant, Erin Kenny, filed affidavits of the following individuals: i. Erin Kenny. ii. Carol Kenny. [ 36 ] Erin Kenny’s affidavit was filed on June 12, 2015. The relevant paragraphs are: 4.

My grandfather, the late Leslie Kenny (“Kenny”) made his Last Will and Testament on December 23, 2004, where he left his estate to his wife, Audrey Kenny. 5. In the event that Audrey Kenny predeceased him, the will provided for the equal distribution of his estate between his two children, Philip Kenny and Angela Moss. 6. Kenny was careful not to favour one child over the other. … 16. Kenny’s wife died at home on October 28, 2012. I was present in the bedroom and brought Kenny to the beside to say goodbye to his wife. 17. Kenny did not appear to understand that his wife was dying.

He told me that he would spend the night in bed with his wife, and that she would be fine when she woke up. … 22. On November 22, 2012, Mr. Timothy Matthews, Q.C. prepared a new will for Kenny, which has been probated. That will essentially disinherits Kenny’s family, leaving everything to his daughter Angela Moss. 23. At the same time, Kenny transferred his real estate into joint ownership with Angela Moss. [ 37 ] Carol Kenny is the widow of Philip Kenny. She is the daughter-in-law of the late Leslie Kenny. She filed an affidavit on December 30, 2015. The relevant paragraphs are as follows: 7.

I knew Leslie Kenny for 46 years, and saw him regularly until his death in 2013. 8. Leslie was a fun-loving man with a dry British sense of humour. 9. Leslie was always well dressed. I knew him to wear a suit and tie every day. It was a running joke in our family that Philip’s father wore a suit to the campground. 10. I knew Leslie and Audrey to have a very traditional marriage. Leslie was the decision-maker of the household. I remember Audrey to have been very deferential and proper until the last years of her life. 11. Leslie always had a very up-to-date car. Driving was very important to him. 12.

The first time I noticed a change in Leslie’s behaviour was in 2009, when he purchased a new car without having taken it for a test drive. 13. The car was a large Ford sedan, burgundy in colour. That car sat quite low. 14. By that time, Audrey was suffering from dementia and was having mobility problems. 15. Audrey had difficulty getting in and out of the car. 16. When it became obvious to Philip and I that the car was not suitable, we suggested that Leslie return the car.

17. Leslie refused at first, stating that Audrey liked the car. Audrey, however, responded that she only liked the colour of the car. 18. Leslie eventually agreed to return the car to the dealer. He would not, however, permit Philip or I to go with him. 19. Leslie returned with a used Ford SUV, which was older, but more expensive. 20. Philip and I were concerned that Leslie had not gotten a good deal on the SUV. 21. Leslie found some of the SUV’s features to be distracting. After a few days, Leslie once again returned to the dealer to have some of those features removed at significant cost. 22.

I found Leslie’s impractical behaviour and stubbornness throughout this ordeal to be uncharacteristic of him. 23. For the rest of the time I knew Leslie, I noticed other troubling changes in his behaviour. 24. Leslie became forgetful. 25. In or about 2010, Philip and I purchased a new Hyundai SUV. 26. Shortly after purchasing the vehicle, we visited Leslie and Audrey at their home in Dartmouth. 27. Philip and I parked our car out front, as we usually did when visiting Leslie and Audrey. 28. Leslie asked three times over the course of lunch who the white SUV belonged to. 29.

On another occasion in or about 2010, Philip and I took Leslie to the Mic Mac Mall. 30. Leslie withdrew $200.00 from the ATM. Shortly thereafter, he withdrew another $200.00. 31. I was surprised when Leslie did not appear to have an explanation as to why he withdrew money twice. 32. On another occasion in or about 2010, Leslie arranged a meeting with his financial advisor. Leslie arranged to have Philip attend that meeting, which took place at Leslie’s kitchen table. 33. I understood the gentleman who attended the meeting to have been one of Fred Saturley’s associates. 34.

I sat with Audrey in the living room while Philip and Leslie met with the banker. I do not know specifically what it is that they discussed, but I understood it concerned Leslie’s investments. 35. When the meeting was over, Leslie and Philip joined us in the living room. 36. Philip asked Leslie whether he understood what they had discussed. Leslie responded that he did not, but that he was sure “Frederick would do the right thing.” 37. Not long after that meeting, it came to my attention that Leslie and Audrey needed assistance paying their bills on time. 38.

On at least one occasion, Leslie and Audrey’s telephone was disconnected. … 44. Over time, Audrey’s condition worsened. However, Leslie did not appear to have full appreciation for her limitations. 45. In the last years of her life, Audrey had become quite combative toward Leslie. I was present for several shouting matches between the two. 46. On those occasions, I explained to Leslie that Audrey was ill and was not able to act like her normal self. 47. Leslie would respond flippantly, that “Audrey was fine”. 48. Leslie also became unable or unwilling to make simple decisions. 49.

On one occasion at the grocery store, Leslie and Audrey could not agree on who would pay for the groceries. 50. On another occasion when Leslie and Audrey were living at the Drumlen Hills assisted living facility, I took Leslie to Zellers in the Bridgewater Mall to purchase some items for their new apartment. 51. Leslie was unable to decide on a garbage can without Audrey’s input. 52. Leslie and Audrey went for a period of time without a garbage can in their apartment. 53. Leslie and Audrey stayed at Drumlen Hills for approximately six months before moving back to their home in Dartmouth. 54.

It was after Leslie and Audrey moved back home that I noticed significant changes in Leslie’s personal hygiene.

55. Leslie was not changing his adult diapers regularly. Used diapers were being kept under the kitchen sink and the garbage was not being changed regularly. 56. Leslie and Audrey’s home smelled badly and was messy and dirty. 57. Because Leslie and Audrey were unable to keep up with their housework, Philip and I cleaned the house we visited. 58. Philip was diagnosed with prostate cancer in November 2010. 59. As a result of Philip’s diagnosis, we did not see Leslie or Audrey much between January and May, 2011. 60. Philip was admitted to the Bridgewater Regional Hospital on May 7, 2011.

At that time, he was placed in palliative care. 61. On May 9, 2011, Leslie and Audrey visited Philip in the hospital for the last time. 62. Audrey appeared to understand that Philip was dying. I remember her being very quiet throughout her visit. Just before it was time to leave, Audrey began to cry. 63. Leslie, however, did not appear to understand the gravity of Philip’s situation. 64. Before leaving, I told Leslie that if he had something to say to Philip, now would be a good time. 65. Leslie responded by telling me that he would be over to the house in a few weeks. 66.

I told Leslie again that he would probably not have another opportunity to say goodbye to his son. 67. Leslie walked into Philip’s room and said “You’ll be OK” and then left. 68. Although he understood Leslie’s condition, Philip told me that he was disappointed that his father did not say goodbye. … 73. Sometimes Leslie forgot where I lived. He would ask about our home in Lahave, even though Philip and I had moved to Mahone Bay in 2008. … 79. Leslie was in the room when Audrey died. He did not react or appear to understand what had happened.

Leslie told me that he intended to sleep in bed with Audrey that night. 80. I continued to visit Leslie regularly after Audrey died. I found Leslie to be more irritable and muddled than he used to be. 81. Leslie sometimes asked about Audrey. I recall one occasion when he said that Audrey was “probably visiting Angela” and would “be home soon”. 82. Leslie was very quiet after I explained to him that Audrey had died. 83. The last time I saw Leslie was in the Spring of 2013, approximately one week before Leslie died. 84. I visited Leslie in home in Dartmouth. Leslie was being bathed in his bed.

Analysis [ 38 ] This onus is on Ms. Moss. [ 39 ] Ms. Kenny takes the position that Leslie Kenny did not have the necessary testamentary capacity to execute the will on November 22, 2012, nor was he aware of the size of his estate or the impact it would have on his family, namely Carol Kenny and her children, because he went through a progressive decline in cognition over an approximate two-year period prior to executing the will. [ 40 ] Carol Kenny in her affidavit lists several observations of Mr.

Kenny’s decline. [ 41 ] With respect, many of these incidents may be related to advancing age and/or dementia and the functional decline with moderate impairment of memory and executive function diagnosed by Dr. Mallery in December 2010. [ 42 ] In some instances, these incidents are refuted by other witnesses. [ 43 ] Ms. Kenny commented at paras. 62 and 63 of her affidavit: 62. Audrey appeared to understand that Philip was dying. I remember her being very quiet throughout her visit. Just before it was time to leave, Audrey began to cry. 63.

Leslie, however, did not appear to understand the gravity of Philip’s situation. [ 44 ] Philip Saturley in reference to Philip’s illness commented: 17. When Philip Kenny became ill, Kenny advised me that his son, Philip, had cancer and was seriously ill and was not expected to

survive it. [ 45 ] Angela Moss stated in her affidavit: 34. When my brother, Philip also developed prostate cancer, my father expressed the fact that he had been through the same thing and had survived it. 35. After my brother, Philip’s death, my father and my mother were solemn, quiet, sad and grief stricken for some time after his death. 36. My parents cut my brother’s obituary out of the paper and it has been retained to date, a copy of which is attached hereto as Exhibit “L” to this my affidavit. [ 46 ] Carol Kenny’s affidavit is helpful in setting out the behaviour exhibited by Mr.

Kenny in the months leading up to the signing of the 2012 will, which Erin Kenny suggests show a lack of testamentary capacity at the time of the signing of the will. [ 47 ] A treating physician’s narrative was filed by Dr. Laurie Mallery on January 15, 2016. Dr. Mallery is a staff member, Geriatrics, at Capital Health. [ 48 ] Dr. Mallery first saw Mr. Kenny on December 16, 2010, and, after examination concluded: In

summary, Mr. Kenny has functional decline with moderate impairment of memory and executive function on objective testing. This presentation would be consistent with moderate-stage Alzheimer dementia. [ 49 ] Dr. Mallery next saw Mr. Kenny on June 16, 2011, and concluded, in

summary: Mr. Kenny has functional decline with moderate impairment of memory and executive function as demonstrated on objective testing. There has been no significant interval change since he was last seen in the clinic. This presentation is consistent with moderate-stage Alzheimer dementia. [ 50 ] Mr. Kenny saw Dr. Mallery again on September 28, 2011, but there was no assessment done on that date for cognitive changes. [ 51 ] There are no other examinations by Dr. Mallery prior to the preparation of the November 22, 2012 will. [ 52 ] In

summary, from the initial examination and diagnosis on December 16, 2010, up to June 16, 2011, there was no change in his condition. [ 53 ] The purpose of Dr. Mallery’s involvement with Mr. Kenny is relevant. Dr. Mallery as a member of the geriatric team was concerned whether Mr. and Mrs. Kenny had the capacity to look after themselves. In particular, there was a concern as to whether they were able to carry out their activities of daily living. At no time, according to Dr. Mallery, was it the intent to assess Mr. Kenny as to capacity to make a will.

For example, in cross-examination the following exchange occurred after counsel discussed Dr. Mallery’s comments in her report: Dr. Mallery: This particular examination mirrors no intent to assess capacity - I don’t believe. Mr. Gay: And did you ever at any time conduct an assessment of Mr. Kenny’s capacity to understand, appreciate and reason through the process of executing a will? Dr. Mallery: No I do not. Mr. Gay: Would such an assessment by you have involved evaluations other than in the MMSE testing? Dr. Mallery: Yes it would. [ 54 ] Katherine Hominick, MSW, RSW, was part of the geriatric team.

She prepared a “social work assessment” which is at Exhibit 5. In that document she quoted Dr. Mallery as saying “Mrs. Kenny clearly lacks capacity and so does Mr. Kenny”. During cross- examination of Dr. Mallery, the following series of questions and answers took place in relation this statement: Mr. Gay: Were you present for the social work assessment? Dr. Mallery : I don’t believe I was - no. Mr Gay: In the last paragraph of page 1 of that note, there is a reference to an email to you and your response, and it states “Mrs. Kenny clearly lacks capacity and so does Mr. Kenny”. Dr. Mallery: Um hm. Mr.

Gay: Do you recall that email exchange? Dr. Mallery : Um ... not really no. Mr. Gay: What would your understanding be of the capacity to which Katherine Hominick refers in that note? Dr. Mallery: Um. I was most likely referring to the capacity to make personal care decisions. Which means a decision about where to live, and um... having an understanding of the safety and risks involved in living in a particular situation.

Mr. Gay: And just to clarify that further. Would you have communicated to Katherine Hominick at that time anything about the capacity of Leslie Kenny to understand, appreciate and reason through the process of making a will? Dr. Mallery: No, I wouldn’t have. [ 55 ] Ms. Hominick prepared a progress note on November 15, 2012, where she found a MMSE score of 16/30 which was lower than that diagnosed by Dr. Mallery. As a result she concluded: Impression: Based on today’s home assessment, Leslie presents with cognitive impairment at the level of impacting his ADLs.

He also has decreased insight into rationale for bathing and potential consequences of lack of bath in light of urinary incontinence. However, with strategies and daily support in place to compensate for declining memory and insight, Leslie is functioning his own home environment at a level of risk he, Angela and Theresa are comfortable with in keeping his goal to remain home… [ 56 ] Ms. Homininck, like Dr. Mallery, was concerned about Mr. and Mrs. Kenny living on their own. Ms. Hominick’s recommendation at the end of her assessment illustrates the purpose of her visit, namely to make sure Mr. and Mrs.

Kenny were safe in their home and for no other purpose. [ 57 ] In

summary, no assessment of Mr. Kenny’s capacity to sign a will was completed. Dr. Mallery testified that to do so would require further testing. [ 58 ] A treating physician’s narrative was filed by Dr. John Nicholson, Mr. Kenny’s family physician. He was not present at the hearing and, therefore, there was no cross-examination of him. I have reviewed his treating physician’s narrative. [ 59 ] Dr. Shannon Johnson, Ph.D. prepared an expert neuropsychological report, which was filed on January 15, 2016. Dr. Johnson based her report on the medical records of Mr.

Kenny from November 2005 to June 12, 2013, as well as a discovery transcript of Dr. Laurie Mallery dated January 7, 2015. [ 60 ] Dr. Johnson was qualified as an expert in the field of neuropsychology, capable of giving evidence concerning the cognitive assessment of Alzheimer’s disease and its impact on cognitive functioning, and in particular, opinion evidence with respect to the late Leslie Kenny’s level of cognitive functioning and ability to make decisions concerning his finances and estate. [ 61 ] Dr. Johnson was asked specific questions about Mr. Kenny’s cognitive functioning. For example: 2.

What difficulties, if any, would Leslie Kenny’s cognitive functioning have caused him in making decisions about his estate in November 2012? [ 62 ] In part, she responded: In my opinion, Mr. Kenny’s cognitive impairments would have limited his ability to comprehend the future impact of the decisions about his estate. [ 63 ] Further: 3. How had Leslie Kenny’s level of cognitive functioning changed since he was first diagnosed? [ 64 ] Dr. Johnson responded, in part: 11. Thus, there had been significant decline in his cognitive functioning from 2011 to 2012. [ 65 ] Legal counsel for Ms.

Moss directed a number of questions to Dr. Johnson respecting her expert report. On February 25, 2016, a response was provided, part of which is summarized as follows: 2) What experience has Dr. Johnson had doing forensic evaluations involving historical reconstructions of a person’s ability to make decisions concerning his/her personal finances and estate? Historical reconstructions, such as the one required in this case, are a rare request in my line of work. Thus, I have not been asked to complete this type of evaluation in the past.

I have been involved in assessing capacity in patients with dementia on multiple occasions. [ 66 ] Mr. Kenny died in June 2013, and as a result he was not able to be interviewed by Dr. Johnson. Dr. Johnson was asked about this on direct examination: Mr. Casey: I take it you never met Leslie Kenny in his lifetime? Dr. Johnson: No I did not. Mr. Casey: What impact does that have on your ability to assess his level of cognitive functioning? Dr. Johnson: Well, it’s always nice to have the person in front of you and to be able to - you know - see them and test them yourself.

But I think in this case it’s the numbers are pretty well documented, you know, as well as the clinical presentations. So I think it was quite a thorough medical record to review. [ 67 ] Further, Dr. Johnson testified: Mr. Casey: What can you say about the impact that has on Mr. Kenny’s ability to remember who his grandchildren or remember which family members might be expected to benefit under a will.

Dr. Johnson: Yeah. Well I think there was some documentation in the records that he was having difficulty remembering specific family members, so you know understanding who these decisions might impact, he might not have had the ability to do that. Yeah, I think what the literature suggests about where... about financial decision making is that people in this stage of Alzheimer’s have a very difficult time with that. Mr. Casey: In the middle of that page you make some comments about what an appropriate score for making an enduring Power of Attorney is... Dr. Johnson: Yeah Mr.

Casey: What can you tell us about what’s involved in an enduring power of attorney from a cognitive point of view that says that 18 is what you need before you can make a.... Dr. Johnson: The way my understanding is the way that’s that assessed is having a understanding enduring a power of attorney is, and then understanding, you know, appreciating um... sort of the future consequences of making that decision. Um... so again having the ability to understand that conceptually what that is about, as well as thinking ahead. Having that prospection ability.

Um, so that... somewhat different issue I think the cognitive abilities needed to do that would be similar in many ways to - sort of estate planning and these kinds of financial decisions. I think capacity in general, those are the main components right. [ 68 ] Dr. Johnson was cross-examined. She agreed that between December 2010 and June 2011 there was no significant change in Mr. Kenny’s condition. [ 69 ] Counsel for Ms. Moss asked the following question: Mr.

Gay: And If you were to assess someone for purposes of determining whether they had testamentary capacity, what would you do in order to make that assessment? [ 70 ] Dr. Johnson responded: Dr. Johnson: Well I would want um... evaluate whether they understood um... sort of the context around that. Do they understand sort of what they’re making decisions about. Um... do they appreciate sort of the future consequences of those decisions and who those decisions will affect in the future, who are the individuals that... that sort of this would affect. So you would want to make sure they sort of understand all of that.

I think another fact or that we look at is reliability is the decision that would hold across time. Would this individual reliably make that same decision, is it just sort of - today I want to do that and tomorrow I wouldn’t want to do that, so we would want to look at reliability particularly given the kind of disease process that individual is experiencing. Mr. Gay: Would you agree that it would include more than just that MMSE testing? Dr. Johnson: Absolutely. Yeah. Yeah I mean the MMSE... Mr.

Gay: You would do functional testing, cognitive testing, and you would interview the person in order to get the detail that you mentioned, you’d have to interview them to obtain that information. Dr. Johnson: Yeah, ideally you’d want to do that interview. Mr. Gay: When you say ideally, wouldn’t that be the case that you would want to do that in every instance in order to be able to ensure that you were coming to the right decision? Dr. Johnson: Yes. You’d want to an interview to self-capacity. [ 71 ] By her own admission Dr.

Johnson agreed that an interview would be required, as well as further functional testing in order to provide an opinion as to testamentary capacity. Dr. Johnson did not interview Mr. Kenny, nor provide the additional testing she agreed was required. [ 72 ] In her expert report, Dr. Johnson opined that a person would need at least a score of 18/30 in MMSE testing to be able to understand the implications of an enduring power of attorney. In her view, the understanding of the implications of executing a will may require a higher reading than an enduring power of attorney. [ 73 ] Regarding Dr.

Johnson’s comments, the following exchange occurred on cross-examination: Mr. Gay : Now, in the third paragraph and ah... you talk about the study done on an enduring power of attorney. Dr. Johnson: Yes. Mr. Gay: Has there been any study... I take it there hasn’t been since you don’t indicate it, but perhaps you can confirm that that’s there’s no study been done on the capacity to do a will. Dr. Johnson: Not that I can find. Mr. Gay: Based on MMSE. Dr. Johnson: Not that I could find.

I think the whole feel of the financial capacity is emerging and there’s been you know a fair bit of research in recent years but nothing specific to that that I could identify. [ 74 ] Dr. Johnson relied on the medical records of Dr. Mallery and the assessment of Ms. Hominick to prepare her expert opinion. It

is noted that no assessment of Mr. Kenny’s cognitive ability to execute a will was done by either of these individuals. [75] Moreover, Dr. Johnson did not interview Mr. Kenny. Dr. Mallery and Dr. Johnson both testified that an interview with Mr.Kenny was required with other tests to determine cognitive ability to execute a will. Dr. Johnson on cross-examination also agreed aninterview was preferable. As well, it does not appear that Dr. Johnson spoke with Dr. Mallery or any other persons who providedrecords upon which she relied.

Further, this was the first time she prepared a “historical reconstruction” without interviewing thesubject. [76] Dr. Johnson referred to Mr. Kenny’s MMSE score of 16/30 on November 15, 2012 in support of her opinion. Counsel for Ms.Kenny referred to Re: Jessie May Coleman (Estate), 2008 NSSC 396, for the proposition that an MMSE of 16/30 is conclusive of lackof testamentary capacity. At para. 70 the trial judge concluded: 70 Among other things, Dr. Mulhall conducted the standard mini-mental scale test (MMSE) and the testator scored 16 out of 30points.

He stated that the standard rate of decline in mental or cognizant capacity on that test is three points in twelve months (whichworks out to about one point every four months). He concluded on that basis that the testator would not have been competent to make awill on July 20, 2005. [77] The trial judge further commented at para. 72: 72 The results of the MMSE and Dr.

Mulhall's other specific inquiries as to the testator's finances and family confirmed that shelacked knowledge of her finances and her family in November 2005 to such an extent that, absent a factual basis for finding that aprecipitous event occurred between July 20 and November 30 as would very significantly accelerate the normal progression of herdementia, she could not have had testamentary capacity on July 20, 2005. [78] In Coleman, supra, unlike the situation here Dr. Mulhall had interviewed the testatrix as part of his assessment of her condition.

What we have here is an historical analysis or reconstruction based on other medical practitioner’s reports. It must be remembered thatthe focus of Dr. Mallery’s inquiries had to do with Mr. and Mrs. Kenny’s ability to stay in their home. Likewise, Ms. Hominick had thesame concerns. The evidence of both Dr. Mallery and Dr. Johnson is that MMSE testing is not sufficient to assess testamentary capacityand that additional testing was required with at least one interview of the testator. [79] In

summary, I place limited weight on the testimony of Dr. Johnson. For circumstances beyond her control she was unable tointerview Mr. Kenny. As a result, she did an historical reconstruction which was based on reports in the treating physician’s narrative of Dr. Mallery, Dr. Mallery’s discovery and Ms. Hominick’s assessment. Both Dr. Mallery and Ms. Hominick acknowledge no testingwas done to assess the cognitive ability to sign a will. [80] Moreover, the expert opinion of Dr. Johnson is contrary to the evidence of those individuals who knew Mr. Kenny best. Ms.Moss, as his daughter, had frequent contact with him.

Frederick Saturley was Mr. and Mrs. Kenny’s long time financial advisor and, inaddition, was a friend who golfed with Mr. Kenny. Ms. Moss and Saturley both stated that in their opinion he had the necessaryunderstanding and ability to execute the will. Dr. Johnson’s evidence must be weighed against the testimony of these individuals whoactually knew Mr. Kenny for a long time and were there at the time the will was executed. [81] In Ramsay Estate (re), 2004 NSSC 140, the trial judge noted: 48.

As noted in Feeney’s Canadian Law of Wills (4th Ed.), there are a number of cases that point out the evidence of a layperson ontestamentary capacity may carry greater weight than that of a doctor. The key point is the opportunity and extent that the layperson hadto observe the testator and arrive at an opinion. The dominance of lay evidence is ever greater when the medical experts do not examinethe deceased personally, and are merely interpreting medical records (see, for example, Marquis v. Westin (1993) (NB CA), 49 E.T.R. 262 (NBCA).

This proposition become even more forceful when the medical records being interpreted areadmittedly incomplete, as is the case here. [82] Mr. Saturley was a long-time friend and financial advisor to Mr. Kenny from 1997 until Mr. Kenny’s death. They golfedtogether and generally kept in touch up to his death. [83] Mr. Saturley was present at the time the will was executed and did not voice any concerns as to Mr. Kenny’s capacity to executethe will. In fact he stated in his affidavit: 11.

After resuming my investment advisor capacity of Kenny’s financial affairs in 2010, I would contact him on or about a monthlybasis by phone or by personal visit to his home at 32 Strath Lane, Dartmouth, Nova Scotia and I continued as Kenny’s investmentadvisor up to his death. 12. During all the time that I was his investment advisor, Kenny appeared to me to have a good understanding of his financial affairsand always had the ultimate control of his financial affairs. [84] Angela Moss, his daughter, was a caregiver and had frequent contact with her father. She testified: 43.

I was present at my father’s home on November 22, 2012 along with Frederick Saturley, Tim Matthews and my father when myfather executed the Will but I did not influence my father’s actions with respect to the Will or direct my father in such actions in any way. 44. During his lifetime, my father never showed any sign in his words or actions, of being delusional about any matter. [85] Tim Matthews, Q.C. is a well-known estate practitioner with many years’ experience. He prepared the previous will inNovember 2004, as well as the 2012 will.

He described the circumstances of the execution of the will, including an approximate fifteenminutes of “small talk” prior to execution of the will. Specifically he stated:

25. I handed Kenny a copy of the will to review. 26. I explained to Kenny that the will appointed Angela Moss as his executrix and that it gifted all of his estate to Angela Moss, to which he responded that this was what he wanted. 27. I added that, in the event that Angela Moss should die before him, at which point he interjected “That’s not going to happen” and I continued saying “Well your grandchildren” to which he responded that was “fine”. 28.

We proceeded to have the will executed with Kenny signing it and initialling each page in the presence of myself and Frederick Saturley and Frederick Saturley and myself signed the will as witnesses in the presence of Kenny, a copy of which executed will is produced herewith as Exhibit “E” to this my affidavit. 29. There was nothing remarkable about this meeting on the 22 nd of November, 2012. 30. Angela Moss took no

part in the conversation concerning the documents and I had no concerns that the deed and the changes to the will were a result of any pressure on Kenny from Angela Moss. 31. I am satisfied that Kenny wanted Angela Moss to inherit his home and the rest of his estate. 32. Nothing that was said or done raised any concerns for me about Kenny’s mental abilities or his understanding of the will and the deed. [ 86 ] It is interesting to note the circumstances surrounding the signing of the 2004 will are somewhat similar to those in 2012. That is, Mr. Matthews and Mr.

Saturley were both present with Leslie Kenny and Audrey Kenny at the signing of the will in 2004, and then again in 2012 Mr. Matthews and Mr. Saturley were present. [ 87 ] I accept the evidence of Mr. Saturley and Mr. Matthews. Both gave their evidence in a forthright, fair and professional manner. More importantly, they are independent from the Kenny family and have nothing to gain in these proceedings from the estate. [ 88 ] It is useful to summarize what is required for testamentary capacity. The requirements for testamentary capacity were set out previously at para. 23 of this decision.

A person must be of “sound mind, memory and understanding” to be able to make a will. Ms. Moss must prove: i. that Mr. Kenny understood what he was doing; ii. that Mr. Kenny understood the nature and quality of the act; iii. that he was able to comprehend and recollect what property he possessed; iv. that he understands the persons who might ordinarily be expected to benefit; and v. he must understand the nature of what is being given to each beneficiary, and the nature of the claims of others who are being excluded. [ 89 ] I am satisfied that Mr. Kenny understood what he was doing.

He had the necessary testamentary capacity. I accept the evidence of Mr. Saturley and Mr. Matthews on this issue. [ 90 ] I am satisfied from the evidence before me that Mr. Kenny was consistent in his wish to benefit his daughter, Angela Moss after the death of his son Philip. Mr. Saturley offered a reason for this change to exclude Philip Kenny’s spouse. According to Mr. Saturley, Mr.

Kenny expressed his dislike of his daughter-in-law, Carol Kenny, and at a meeting with Leslie and Audrey Kenny on June 26, 2012, he was told that they wanted to change their wills to make Angela Moss the sole beneficiary with no provision for Carol Kenny or her children. [ 91 ] At the same time Mr. and Mrs. Kenny transferred their entire joint investment account into Angela Moss’s name, as well as their own. Prior to that Ms.

Moss was added as a party/owner on September 20, 2011 on a bank account with CIBC, valued at approximately $99,000, and likewise on a Bank of Montreal account valued at approximately $17,400, on September 12, 2011. [ 92 ] These transfers are consistent with the November 2012 will. In other words as far back as 2011 Mr. and Mrs. Kenny’s early intention was to transfer assets to Angela Moss to the exclusion of Carol Kenny. [ 93 ] I am satisfied that Mr. Kenny was able to comprehend what property he possessed.

At the same time the 2012 will was executed, he transferred by deed his house property to himself and Angela Moss as joint tenants. [ 94 ] Mr. Matthews noted in his affidavit: 20. After this initial period of conversation, I advised Kenny that I had drafted a new will for him as well as deed to change the ownership of 32 Strath Lane into the joint names of himself and Angela Moss. 21. With respect to the deed, Kenny commented to the effect that he intended to continue to live at 32 Strath Lane but eventually it would be Angela Moss’s property. [ 95 ] Mr.

Kenny obviously comprehended the nature of a joint tenancy deed. [ 96 ] In relation to signing the will, Mr. Matthews states:

24. Once the deed was executed, I proceeded to go over the will with Kenny. 25. I handed Kenny a copy of the will to review. 26. I explained to Kenny that the will appointed Angela Moss as his executrix and that it gifted all of his estate to Angela Moss, to which he responded that this was what he wanted. 27. I added that, in the event that Angela Moss should die before him, at which point he interjected “That’s not going to happen” and I continued saying “Well your grandchildren” to which he responded that was “fine”. [ 97 ] Mr.

Kenny likewise comprehended that his grandchildren would benefit if his daughter Angela Moss predeceased him. [ 98 ] Further, Mr. Saturley states in his affidavit: 11. After resuming my investment advisor capacity of Kenny’s financial affairs in 2010, I would contact him on about a monthly basis by phone or by personal visit to his home at 32 Strath Lane, Dartmouth, Nova Scotia and I continued as Kenny’s investment advisor up to his death. 12.

During all of the time that I was his investment advisor, Kenny appeared to me to have a good understanding of his financial affairs and always had the ultimate control of his financial affairs. [ 99 ] As to the remainder of the factors set out in Feeney, supra, I am satisfied: i. that Mr. Kenny understood the persons who might benefit and those who might be expected to benefit, and ii. he understood the nature of what he was giving to each beneficiary and the nature of the claims of those who are being excluded. [ 100 ] In

summary, I am satisfied Ms. Moss has met her burden and that Leslie Kenny had the necessary testamentary capacity when he executed the November 22, 2012 will and understood the implications and what property he possessed and who would benefit. [ 101 ] Until Philip Kenny’s death, Mr. Kenny had divided his estate between his two children. Upon Philip’s death and his stated dislike for his daughter-in-law, Carol Kenny, Mr.

Kenny decided to benefit his daughter, Angela Moss, and in the event of her death, to benefit all of his grandchildren, including those of his late son, Philip and his wife Carol Moss. [ 102 ] The application for proof in solemn form by Erin Kenny is dismissed with costs to Ms. Moss. In the event that the parties are unable to agree on costs by August 17, 2016, submissions are to be provided no later than August 23, 2016, setting out the parties’ respective position. Pickup, J.