Docket: CACV2125 Yeong Oh Appellant - v. -, 2012 SKCA 27

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 27 Date: 20120308 Between: Docket: CACV2125 Yeong Oh Appellant - and - Trevor Robinson Respondent Coram: Jackson, Richards and Ottenbreit JJ.A. Counsel: Yeong Oh appearing on her own behalf Nolan Dooley for the Respondent , Trevor Robinson Jason Brunton for the Estate of Clarice Tunall

Appeal: From: 2011 SKQB 200 Heard: March 1, 2012 Disposition: Appeal dismissed Written Reasons: March 8, 2012 By: The Honourable Mr. Justice Richards In Concurrence: The Honourable Madam Justice Jackson The Honourable Mr. Justice Ottenbreit Richards J.A. I. Introduction [ 1 ] John Bellamy died in Saskatoon on July 18, 2002. One of his journals contained a holograph will. The writings comprising the will had been interlineated and amended so as to make them somewhat difficult to decipher, at least in part. [ 2 ] The executor brought an application to prove the will in solemn form.

A trial was held and witnesses were heard. The trial judge concluded that the will should be read as leaving nothing to Mr. Bellamy’s long-time girlfriend, the appellant, Yeong Oh. Ms. Oh appeals from this decision and says Mr. Bellamy’s entire estate should go to her. [ 3 ] Ms. Oh appeared on her own behalf.

We reserved our decision after hearing both her submissions and those of counsel for the executor, Trevor Robinson, and the Estate of Clarice Tunall, the principal beneficiary under the will. [ 4 ] We have now had an opportunity to consider the arguments presented and to carefully review all of the materials filed by the parties. These reasons set out and explain our decision. II. Background [ 5 ] Mr. Bellamy was born in 1919. He never married and had no children. He was a surveyor by trade. He was described as being an interesting and somewhat eccentric character.

After his retirement, he travelled to the Cayman Islands and other warm locations in the winter and, in the summer, would spend many days walking the banks of the South Saskatchewan River and camping out. [ 6 ] Mr. Bellamy met Ms. Oh in 1981 in Saskatoon. She moved to British Columbia in the late 1980s but they maintained their relationship throughout the years. They often visited in Saskatoon or Burnaby and, at least once, travelled together to the Caribbean. [ 7 ] Mr. Bellamy had a long history and a long friendship with the Tunall family. For some 38 years, they farmed a

section of land owned by Mr. Bellamy. [ 8 ] Mr. Bellamy suffered a stroke in May of 2002. Ms. Oh travelled from Burnaby to visit him in the hospital. She arrived on May 31, 2002 and returned to Burnaby on or about June 6, 2002. This was the final time she saw Mr. Bellamy. She says she last spoke to him by telephone on the morning of July 18, 2002. Mr. Bellamy took his own life later that day.

[9] Mr. Bellamy kept yearly journals in which he recorded many of the details of his life. The holograph will at the root of this appealwas in his 2000 journal. The word “WILL” was printed in white on the cover and spine of the volume. Shortly before he died, Mr.Bellamy told both Mr. Daigle and Mr. Tunall that his will was in the 2000 journal. [10] The writings ultimately held by the trial judge to comprise Mr. Bellamy’s will are found on four pages at the back of the journal. They begin with the words “This is the last will & testament of I John George Bellamy, retired of 236 Ave. H North, Saskatoon Sk.” andgo on to name Mr. Robinson, a relative, as executor and to give the

section of farm land to the Estate of Clarice Tunall. After doing this,the document sets out provisions relevant to Ms. Oh’s claim. The language in question was, to some extent, interlineated and wasobviously written on more than one session. It says: The remainder of my estate I leave to the Executor Trevor Robinson. subject to my slush fund approval & that of slush fund measured byamit rec. shareholders thereof.

The Korean painted screen at present standing on E side of my desk is the property of Yeong Oh – latestphone (604) 526-0517 in Burnaby B.C. also she gets the 236 Ave H N building & containing it. slush fund share as best friend &girlfriend. & whatever other item she is entitled too. (sic) [11] The document next recounts various other bequests with reference to categories of beneficiaries described in the words “CategoriesMale Best friends Best Friends Female Best friends girl friends.” It also states that “Category of the not a plugged nickle [sic] means getnothing… .” At the foot of the third page, the document concludes with the words “I’m to be cremated & ashes to SSK River after livingwill provisions carried out. hoping to be forgiven for any unintentional foibles as I forgive others.” The document is then signed “JohnG.

Bellamy.” [12] There follows a blank page in the journal and then a page with the following written at the top: “As of July 10 Yeong Oh is on thenot a plugged nickle [sic] category.” For ease of reference, I will refer to this part of Mr. Bellamy’s writings as the “Codicil.” III. The Queen’s Bench Decision [13] The executor applied to the Court of Queen’s Bench for the purpose of determining which, if any, parts of the writings found in the2000 journal should go to probate. [14] A trial was conducted in April of 2011. Seven witnesses gave evidence. They included: (

a) Trevor Robinson (the executor, a non-practicing lawyer and grandson of Mr. Bellamy’s cousin), (

b) Margaret Ann Long (a relative), (

c) Doug Daigle (the caretaker of thebuilding where Mr. Bellamy lived), (

d) Leslie Peace (a handwriting expert), (

e) Marguerite McCallum Long (a relative), (

f) Dale Tunall(the son of Clarice Tunall), and (

g) Ms. Oh. [15] In his decision, the trial judge outlined the key aspects of Mr. Bellamy’s life and then reviewed the relevant provisions of The WillsAct, 1996, S.S. 1996, c. W-14.1. He also referred to several leading cases such as Dieno Estate v. Dieno Estate, (SKKB), [1996] 10 W.W.R. 375 (Sask. Q.B.) and Re Bunn Estate, (SK CA), [1992] 4 W.W.R. 240 (Sask. C.A.). Heaccepted the evidence of Mr. Peace, the expert witness, to the effect that all of the writings in question, including the Codicil, were in Mr.Bellamy’s handwriting. The judge had no difficulty concluding that the will embodied Mr.

Bellamy’s testamentary intentions. [16] The trial judge concluded he must give effect to the Codicil. He explained his reasoning as follows: [31] Based on the terminology used in the holograph will and the identical words used in the writing on the reverse side of page 4,namely, "not a plugged nickle [sic] category", is a clear and cogent connection to the holograph will which supports the position that thisis an amendment to the original will.

The evidence of the forensic expert has established that these words are also in the handwriting ofBellamy and were possibly written around July 14 or 15, 2002, just prior to Bellamy's suicide. There was also evidence presented to theCourt of an argument or disagreement between Bellamy and Oh on the telephone shortly before July 14, 2002. [17] The trial judge then worked through each feature of the will and made rulings as to how they were to be interpreted and applied bythe executor. In the end, the Codicil was taken to negate the specific bequest to Ms.

Oh found in the body of the will and she was foundto be entitled to nothing from Mr. Bellamy’s estate. IV. Analysis [18] Ms. Oh filed a notice of appeal listing a number of points where the trial judge is said to have erred. She also filed a written briefwhich developed and explained many of her concerns. As indicated at the outset of these reasons, we also gave her the opportunity tomake a detailed oral submission.

[ 19 ] Before dealing with the merits of Ms. Oh’s arguments, it might be useful to emphasize the role of the Court of Appeal. Simply put, this Court has no authority to decide this case afresh. As was explained to Ms. Oh during argument, our powers are much more limited than that. We are entitled to review the trial decision for error but we cannot do more. [ 20 ] I turn, then, to the specific concerns raised by Ms. Oh. A. The Codicil [ 21 ] First, and not surprisingly, Ms. Oh expresses great concern about the Codicil. She stresses that it is not signed and is not dated. She says Mr.

Bellamy’s habit was to sign letters and that, if he had written the Codicil, he would have signed it. Ms. Oh also questions the authenticity of the Codicil on the basis that she is very familiar with Mr. Bellamy’s writing, having read his letters and his journals for 21 years. In her opinion, the Codicil was not written by Mr. Bellamy, particularly given that he was in a weakened state from a stroke in May of 2002. [ 22 ] In my view, these arguments cannot succeed. The trial judge accepted the evidence of Mr. Peace, a man with considerable background and experience in forensic handwriting analysis. Mr.

Peace examined both Mr. Bellamy’s writing and the writing of other persons who might have been in a position to pen the Codicil. In Mr. Peace’s professional opinion, the Codicil was written by Mr. Bellamy and was written by him after the main body of the will, including the words quoted above at para. 10, was written. There is no basis for this Court to interfere with the trial judge’s assessment of these matters. Given the evidence before him, he reached an entirely proper and reasonable conclusion. [ 23 ] Ms. Oh must also understand that the Codicil is not invalid merely because it is not signed.

The Wills Act, 1996 sets out the law which governs the making of wills in Saskatchewan. Ms. Oh is correct, of course, that a holograph will (such as the will in question here, i.e. a will in the handwriting of the person who has died) must be signed.

Section 8 of The Wills Act, 1996 says this: 8 A holograph will, wholly in the handwriting of the testator and signed by him or her, may be made without any further formality or any requirement as to the presence of or attestation or signature by a witness. [ 24 ] The will found in Mr. Bellamy’s journal meets these requirements. It sets out his testamentary intentions and is signed by him. [ 25 ] Although she did not refer to it in argument, the

section of The Wills Act, 1996 of most significance to Ms. Oh’s submissions is s. 11(3). It says a will can be voluntarily altered by the testator if the alteration is wholly in the writing of the testator and signed by him or her. It reads as follows: 11(3) A will may be altered by a testator without any requirement as to the presence of or attestation or signature by a witness or any further formality if the alteration is wholly in the handwriting of, and signed by, the testator. [ 26 ] But, the law is more complicated than this.

Section 37 of The Wills Act, 1996 , referred to and relied on by the trial judge, says a writing which is not prepared as required by provisions such as ss. 8 and 11(3) can be effective if a judge decides that it reflects the testator’s intentions to (in this case) alter the will.

Section 37 says this: 37 The court may, notwithstanding that a document or writing was not executed in compliance with all the formal requirements imposed by this Act, order that the document or writing be fully effective as though it had been properly executed as the will of the deceased or as the revocation, alteration or revival of the will of the deceased or of the testamentary intention embodied in that other document, where a court, on application is satisfied that the document or writing embodies: (

a) the testamentary intentions of a deceased; or (

b) the intention of a deceased to revoke, alter or revive a will of the deceased or the testamentary intentions of the deceased embodied in a document other than a will. [ 27 ] All of this might seem very complicated to a layperson like Ms. Oh. However, the bottom line for her is quite simple. The law says that the fact the Codicil was not signed by Mr. Bellamy does not automatically mean it is invalid. The trial judge did not make any error or mistake on this point. There is no basis on which we can take issue with the idea that the Codicil reflected Mr. Bellamy’s testamentary intention. B. The Evidence Before the Trial Judge

[ 28 ] Ms. Oh’s second set of concerns relates to the evidence considered by the trial judge. In her view, all of the witnesses, save for herself, lied and perjured themselves. This is an untenable position but, nonetheless, I propose to deal with some of the specific points she has raised in this regard. (

a) Ms. Oh emphasizes that, in an affidavit sworn on December 2, 2010, Mr. Tunall recounted taking Mr. Bellamy to see an accountant who tried to convince Mr. Bellamy of the importance of having a formal will prepared by a lawyer. In his evidence at the trial, Mr. Tunall indicated that, in fact, this did not happen. For Ms. Oh, this appears to suggest that all of Mr. Tunall’s evidence must be rejected. Several points need to be noted here: (

i) Ms. Oh reads Mr. Tunall’s affidavit as saying he took Mr. Bellamy out of the hospital to see an accountant. However, that is not what the affidavit says. It does not indicate when Mr. Bellamy was taken to the accountant; (ii) Mr. Tunall explained in his evidence at trial that he was mistaken when he swore the affidavit and that the accountant had been taken by his father to see Mr. Bellamy. The trial judge heard this explanation and was in a position to decide how, or if, it had any bearing on the rest of Mr. Tunall’s evidence.

It is not the role of this Court to interfere with this sort of assessment; and, (iii) in any event, it is difficult to see the overall significance of this aspect of Mr. Tunall’s evidence. The root question before the judge was whether Mr. Bellamy had written the will and whether it reflected his testamentary intentions. Mr. Bellamy’s possible meeting with an accountant has no evident bearing on any of that. (

b) Ms. Oh says that, relatively shortly before Mr. Bellamy’s death when she visited him in the hospital, Mr. Bellamy gave her safety deposit box keys and a number of bank books. She says she passed those items on to Marguerite Long when she returned to British Columbia. Ms. Long testified at the trial and said she had been given only Mr. Bellamy’s car keys. Ms. Oh also points out that on July 15, 2002, Mr. Tunall says he took Mr. Bellamy to Ms. Long’s where Mr. Bellamy retrieved a journal. In Ms. Oh’s view, this confirms that Ms. Long was given more than car keys. On this set of issues, I observe as follows: (

i) it is not unusual at a trial for witnesses to have different memories of an event. The judge heard from Ms. Oh, Mr. Tunall and Ms. Long. As explained above, this Court cannot wholly remake his decisions with respect to the evaluation of their evidence; (ii) Ms. Oh did not say she left journals with Ms. Long and, as a result, the fact that Mr. Bellamy retrieved a journal from Ms. Long is not inconsistent with Ms. Long’s evidence about what Ms. Oh left with her; and, (iii) in any event, the significance of what was left, or not left, with Ms. Long is not at all apparent.

As indicated, the question before the trial judge concerned the status of the will found in the 2000 journal. Whether Ms. Long did or did not accurately or properly remember what was left with her by Ms. Oh has no immediate impact on that question. (

c) Ms. Oh refers to Mr. Peace’s Forensic Examination Report (Report No. 2) and, in particular, to p. 2 of that report where Mr. Peace refers to writings found on pages of Mr. Bellamy’s 2002 journal up to and including September 8, 2002. Ms. Oh notes that Mr. Bellamy died in July of 2002 and asks how Mr. Peace could have concluded Mr. Bellamy wrote things after his death. The answer to this concern is straightforward. There are, in fact, writings in Mr. Bellamy’s 2002 journal on some pages up to September 8. Mr. Peace’s report does not say Mr. Bellamy was alive and writing on September 8, 2002.

He says only that Mr. Bellamy wrote “on pages dated from January 1, 2002, to September 8, 2002… .” This is entirely accurate. (

d) Ms. Oh also stresses that, after Mr. Bellamy’s funeral, Mr. Robinson gave her Mr. Bellamy’s ashes to place in the South Saskatchewan River. She says this gesture confirmed her entitlement to Mr. Bellamy’s estate. Unfortunately for Ms. Oh, this kind of thinking is not legally correct. Mr. Robinson obviously recognized the nature of Ms. Oh’s relationship with Mr. Bellamy. However, in law, the quality of that relationship and the issue of who should get Mr. Bellamy’s estate are very different things. His estate must be distributed in accordance with the terms of his will, not on the basis of his relationships. (

e) Ms. Oh also refers to a will said by her to have been executed by Mr. Bellamy in Burnaby on December 5, 2001. She says this will named her as Mr. Bellamy’s sole beneficiary. No evidence of the existence of this will, beyond Ms. Oh’s own testimony, was presented at the trial. The will itself was not produced for the trial judge. As a result, the judge obviously could not give it any effect. He was entitled to act only on the strength of the evidence placed before him. C. Fairness [ 29 ] The third set of arguments raised by Ms. Oh concerns what might be called the fairness of the trial.

The heart of her concerns in this area relates to the notion that, in her opinion, the other witnesses perjured themselves and the trial judge failed to recognize this. I am not prepared to give effect to any argument along these lines. The trial judge heard the evidence. He had an opportunity to observe the witnesses and to assess their credibility. There is nothing of any sort in the transcript which suggests a generalized problem of the sort described by Ms. Oh. As discussed above, there were some minor contradictions or inconsistencies in the evidence but this is not unusual in a trial.

Perhaps more to the point, none of those inconsistencies go to the question of whether the trial judge erred in his bottom-line assessment of the writings found in Mr. Bellamy’s journal. All of that said, I will nonetheless comment briefly on two of the specific concerns raised by Ms. Oh. (

a) Ms. Oh says she was not allowed to put seven letters sent to her by Mr. Bellamy before the trial court. The reality, however, is that (according to the transcript) Ms. Oh did not attempt to place the letters into evidence. In any event, five of the seven letters were in fact before the court in connection with the reports prepared by Mr. Peace. Further, there is nothing to suggest the letters in question do

anything more than evidence Mr. Bellamy’s affection for Ms. Oh, a point not contested by any of the parties nor disputed by the trial judge. (

b) Ms. Oh also refers to her difficulties with the English language. While it is true that English is not her native tongue, the record shows the trial judge was not insensitive to her situation. First, he advised her at the outset of the trial about the advantage of being represented by counsel. Second, at the start of the trial, he also confirmed the scope of the proceedings and the matters in issue. Third, on more than one occasion, he asked Ms. Oh if she needed more time to think about questions or her position. Fourth, at the end of the trial, he gave Ms.

Oh an opportunity to take some time for filing a written argument. More importantly, Ms. Oh does not point to any specific problem or issue where language difficulties prejudiced her position, caused her to misunderstand what was happening in the trial or led to some other problem of consequence. As a result, there is simply no basis, even an arguable one, on which this Court can intervene in the trial decision on grounds related to Ms. Oh’s proficiency in English. V. Conclusion [ 30 ] I conclude that Ms.

Oh’s appeal must be dismissed. [ 31 ] Trevor Robinson and the Estate of Clarice Tunall are entitled to reasonable solicitor and client costs to be paid out of the estate. Ms. Oh is entitled to be reimbursed for reasonable disbursements incurred in the course of pursuing this appeal. This includes expenses relating to air or other travel to Regina from her home and return, hotels and meals, taxis, telephone charges, the cost of the transcript and the cost of reproducing the appeal books and her memorandum.

These reimbursements shall also be paid from the estate. [ 32 ] Let me conclude by saying that we understand the disappointment, sadness and hurt Ms. Oh will feel in light of our decision. She had a long relationship with Mr. Bellamy and has been left with nothing under his will even though she understood that all of his estate would go to her. This is not an easy situation to be in. However, we hope Ms. Oh understands that none of the participants in this case question the quality of her relationship with Mr. Bellamy, how he felt about her or how she felt about him. She and Mr.

Bellamy appear to have been close for a very long time. But this does not mean she is entitled to his estate. That is not how the law works. We must look to Mr. Bellamy’s will to determine how his property is to be distributed. Testators often write wills which surprise and disappointment those people who are close to them. Unfortunately for Ms. Oh, this is one of those cases. DATED at the City of Regina, in the Province of Saskatchewan, this 8th day of March, A.D. 2012. “Richards J.A.” Richards J.A. I concur “Jackson J.A.” Jackson J.A. I concur “Ottenbreit J.A.” Ottenbreit J.A.