Karpinski v Zookewich Estate, 2018 SKCA 56

Court of Appeal for Saskatchewan Docket: CACV3143 Citation: Karpinski v Zookewich Estate , 2018 SKCA 56 Date: 2018-07-23 Between: Ed Karpinski Appellant (Applicant) And Mary Lozinski and Al Lozinski, Executors of the Estate of Ernie Zookewich Respondents (Respondents) Before: Richards C.J.S., Caldwell and Herauf JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr. Justice Herauf In concurrence: The Honourable Chief Justice Richards The Honourable Mr. Justice Caldwell On Appeal From: 2017 SKQB 278 , Saskatoon Appeal Heard: May 17, 2018 Counsel: Curtis J. Onishenko for the Appellant Perry G.

Polishchuk for the Respondents Herauf J.A. I. introduction [ 1 ] Ed Karpinski, the appellant, was unsuccessful in his attempt to have Ernie Zookewich’s Will [Will] proven in solemn form. In his reasons, the Chambers judge held that Ernie did not lack testamentary capacity and there was no evidence of undue influence in the preparation of Ernie’s Will on the part of Mary and Al Lozinski, the respondents.

For ease of reference, I have utilized the first names of the relevant parties to avoid confusion, as they are closely related. [ 2 ] Ed puts forward two grounds of appeal, namely, Ernie lacked knowledge and approval of the contents of the Will and Ernie was unduly influenced in the making of his Will by Mary and Al. Ed also contends that a sub-issue of knowledge and approval of the contents of the Will is the “doctrine of righteousness”.

The doctrine was not mentioned by the Chambers judge even though counsel for Ed indicated it was raised by him during his closing submissions to the Chambers judge. [ 3 ] I can find no merit in either ground of appeal and would dismiss the appeal essentially for the reasons of the Chambers judge. II. Facts [ 4 ] Ernie was born in 1935 and died on September 16, 2016. Ernie’s father passed away when Ernie was three years old and his mother, Annie, remarried Stanley Karpinski in 1938. Annie and Stanley had two children, Ed and Mary.

Ernie never married or had any children and Ed and Mary are his only siblings. [ 5 ] Ernie quit school in grade five or six to work on the family farm. Ed stated that his mother was overly protective of Ernie and dominated his life. As a result, Ernie was discouraged from having a social life and he made few friends and had no girlfriends. Ernie’s parents also paid for Ernie’s living expenses and bought his clothes and groceries.

While Stanley made all of the business decisions with respect to the family farm, Ernie worked hard and was a self-taught mechanic. [ 6 ] Ed left the family farm in 1957 and married Verl Karpinski in 1980. Ed also legally adopted Verl’s daughter, Christine. In 1985, Ed and Verl moved to Yorkton to become involved in the family farm until they moved away in 1995. Mary left the farm in 1963 and married Al Lozinski in 1964. Al and Mary have four children together. [ 7 ] Stanley and Annie died in 2007 leaving Ernie three quarters of farmland and one quarter to Ed.

At Ernie’s death, he owned eleven quarters of farmland. [ 8 ] Ernie made a Will dated April 12, 2006, in which he appointed Mary and Al as the executors and sole beneficiaries of the estate. In particular, the Will stated that: As I have not left anything to my brother, I wish to confirm that the reason for doing so is because I feel my brother is well off and has no need for further funds or assets.

I also ask my sister Mary and her husband Al to give consideration to sharing my estate bequeathed to them herein, with their children and grandchildren. [ 9 ] In April 2015, Ed discovered that Ernie was living in a nursing home. Ed states that Ernie told him that this was Mary’s decision and not his own. It was also at this time that Ed became aware that an auction of farm equipment was taking place at the family

farm. It appears that this auction led to considerable friction in the family as Ed believed Ernie still owed him $55,000 for co-owned equipment Ed had left behind on the farm. According to Ed, when he spoke to Ernie about this, Ernie stated that he would pay Ed the money he owed and that all of his nieces and nephews were to have a share in his estate. Ed also states in his affidavit that on multiple occasions Mary was present when Ernie said that he was giving all of his assets to his nieces and nephews, including Ed’s daughter, Christine. [ 10 ] Stan Kyba was the lawyer who prepared Ernie’s Will. Mr.

Kyba passed away before Ernie. The law firm at which he practiced provided the contents of its file as it related to the preparation of Ernie’s Will. Mr. Kyba’s notes reference Ed, and Ernie’s apparent comment that Ed was well off and soon to be pensioned off. Ernie also had Mr. Kyba draft a Power of Attorney, which he signed at the same time as he signed the Will, appointing Mary and Al as attorneys to act severally. [ 11 ] Ed brought an application to make Al and Mary prove the Will in solemn form.

Ed believes that, when his father’s abilities to assist with farm finances declined, Mary stepped in and began to exert control over Ernie’s life and finances. Ed states that Al and Mary were in a position to exert control over Ernie and influence him to execute a Will that gave them all of his assets. In addition, Ed claims that he is not “well off” as Ernie’s Will suggests and that Ernie was aware of this in 2006 when he signed the Will. III.

Chambers Decision [ 12 ] The Chambers judge, in his decision Karpinski v Lozinski , 2017 SKQB 278 , dated September 18, 2017, denied Ed’s application to have Ernie’s Will proven in solemn form. At paragraph 1, the Chambers judge outlined the issues from Ed’s application: ...

(1) The Will was not made in accordance with s. 7 of The Wills Act, 1996 , SS 1996, c W-14.1;

(2) There are suspicious circumstances surrounding the making and execution of the Will; and

(3) Given the content of the Will and the behaviour of the testator, it is not known if the deceased had knowledge of and approved the contents of the Will. [ 13 ] The Chambers judge then reframed these issues in paragraph 2 of his judgment:

(1) The Will submitted for probate was not the Will signed by the deceased;

(2) The deceased was subject to undue influence of the Lozinskis in determining the contents of the Will; and

(3) The deceased lacked the necessary testamentary capacity when signing the Will. [ 14 ] The Chambers judge then set out the approach to apply when dealing with an application for proof of a will in solemn form: [30] The underlying feature of the analysis of both testamentary capacity and undue influence is whether a genuine issue to be tried exists. [ 15 ] He went on to quote Bachman v Scheidt Estate , 2016 SKCA 150 , [2017] 2 WWR 301 [ Scheidt Estate ], where this Court held: [ 16 ] In order to have a trial to prove the will in solemn form, the applicant must, at the first hearing, establish a genuine issue to be tried.

To do this, he or she must point to some evidence which, if accepted at trial, would tend to negative testamentary capacity or support a finding of undue influence. … [16] The Chambers judge rejected Ed’s assertion that the threshold was “reasonably low” for requiring proof in solemn form or that “the whiff of evidence” was enough to overcome the presumption that a testator knows and approves of the contents of his Will (at para 32). [ 17 ] The Chambers judge addressed the issue of whether or not a genuine question that the testator had testamentary capacity at the time of the Will’s execution existed.

He held that the appropriate timeframe for the examination of this question was when the testator executed the Will (para 34). Further, the Chambers judge stated that the best evidence for determining whether Ernie had testamentary capacity came from Mr. Kyba’s file and preparation documents. Regarding this evidence, the Chambers judge stated: [34] ... There is nothing in the file to suggest any concern with respect to testamentary capacity, and indeed there was an execution by Mr.

Kyba of a certificate that provided the testator had the capacity to understand the nature and effect of the Power of Attorney he was signing. That is not to say that the requirements of capacity for a Power of Attorney are the same as the requirements for capacity of a Will. It does, however, go a long way towards the question of capacity. [ 18 ] The Chambers judge addressed the additional circumstances raised by Ed that might show a genuine issue for trial on the issue of testamentary capacity. The circumstances raised were: (

a) Ernie knew that Ed was not well off when he made his Will in 2006; (

b) Ernie’s lack of education and sophistication and the potential difficulty he may have had interpreting the words of the Will; (

c) Ernie’s repeated statements that the Will divided his estate among his nieces and nephews; (

d) Mary’s failure to correct Ernie when he stated in her presence that the Will left everything to his nieces and nephews; and

(

e) Ernie’s inability to review the Will to gain knowledge or understanding of its contents on account of it remaining in Mary and Al’s safe deposit box from soon after execution until after his death. [ 19 ] The Chambers judge rejected these arguments because none of them convinced him that a genuine issue to be tried existed. According to the Chambers judge, much of the evidence relating to these circumstances was the subjective opinion of Ed and not supported by an independent source.

In addition, the Chambers judge found statements made by Ernie years after the execution of the Will did not raise a question of suspicious circumstances as to Ernie’s testamentary capacity at the time of signing the Will.

Finally, despite Ernie’s deficiencies as alleged by Ed, Ernie was able to run a successful farming operation from 2007 until 2016 without any apparent assistance, which suggested that Ernie had sufficient education and sophistication to understand the contents of his Will or review his Will and make a new one if he wished (paras 36–40). [ 20 ] When it came to the issue of undue influence, the Chambers judge held that the evidence before him did not support a finding that Mary or Al had exercised any undue influence (para 41).

Nor did the Chambers judge find evidence to suggest that Mary or Al were exercising undue influence over Ernie in either the period leading up to, or during, the creation and signing of his Will. Further, the Chambers judge stated that the contradictory evidence regarding certain events that occurred years after the signing of the Will was “periphery” to the issues in this application (at para 49). [ 21 ] Ultimately, the Chambers judge dismissed Ed’s application to have the Will proven in solemn form. IV. Positions of the Parties A.

Ed Karpinski [ 22 ] First, Ed argues that the Chambers judge erred in failing to order that the Will be proven in solemn form to determine whether Ernie had knowledge and approval of its contents. In particular, this ground of appeal focuses on the fact that the Chambers judge concentrated on the question of testamentary capacity, and not knowledge and approval, when determining this issue.

As well, Ed lists the doctrine of righteousness as a sub-issue to whether or not Ernie had knowledge and approval of the contents of his Will. [ 23 ] Second, Ed argues that the Chambers judge erred in failing to order that the Will be proven in solemn form to determine whether Ernie was unduly influenced by Mary or Al when making his Will. Specifically, Ed argues that the presumption of undue influence should have applied in this case or, at a minimum, that the evidence provided was enough to raise a genuine issue as to whether or not the presumption of undue influence applied. B.

Mary Lozinski and Al Lozinski [ 24 ] Mary and Al argue that the Chambers judge did not err in failing to order the Will be proven in solemn form to determine whether Ernie had knowledge and approval of the contents of the Will. Mary and Al admit that testamentary capacity and knowledge and approval of the contents of a will are distinct concepts.

However, they argue that a person who has testamentary capacity also has the capacity to know and approve the contents of their will. [ 25 ] Mary and Al also contend the Chambers judge did not err in failing to order that the Will be proven in solemn form to determine whether Ernie was unduly influenced in the making of his Will. V. Issues [ 26 ] The following issues will be addressed: (

a) Standard of proof and test to have a will proven in solemn form; (

b) Undue Influence; (

i) Presumption and legal burden; (ii) Test for undue influence; (

c) Knowledge and approval of the contents of the Will; (

i) Knowledge and approval of the contents of the Will as distinct from testamentary capacity; and (ii) Doctrine of righteousness. VI. Applicable Law and Analysis A. Standard of proof and test to have a will proven in solemn form [ 27 ] In Scheidt Estate , this Court stated the following when it comes to the appropriate test a chambers judge should employ when determining whether a will must be proven in solemn form:

[16] In order to have a trial to prove the will in solemn form, the applicant must, at the first hearing, establish a genuine issue to betried. To do this, he or she must point to some evidence which, if accepted at trial, would tend to negative testamentary capacity orsupport a finding of undue influence. The applicant must do more than simply suggest an irregularity or point to evidence on peripheralpoints. Rather, probative evidence showing a genuine issue must be adduced.

Once this hurdle is cleared, the propounder of the will mayattempt to answer the challenge by showing unconditional and uncontroverted evidence that affirms that the maker of the will had thenecessary testamentary capacity and/or was not unduly influenced. Although the Chambers judge may consider evidence from bothparties, it is not his or her job to weigh conflicting evidence and make findings of credibility.

If contradictory evidence is adduced,especially where findings of credibility will have to be made, the only option for the Chambers judge is to direct a trial. (Emphasis added) See also: Ritchie v Royal Trust Corporation of Canada, 2007 SKCA 64 at para 6, 293 Sask R 238 [Ritchie]; Otto v Kapacila Estate,2010 SKCA 85 at para 27, [2010] 9 WWR 575. B. Undue Influence 1. Presumption and legal burden [28] The Supreme Court of Canada addressed the issue of attacking a will on the grounds of undue influence in the decision Vout vHay, (SCC), [1995] 2 SCR 876 [Vout].

Writing for a unanimous Court, Sopinka J. stated: [21] The third issue casts upon those attacking the will the burden of proving undue influence.

This requires proof that the testator’sassent to the will was obtained by influence such that instead of representing what the testator wanted, the will is a product of coercion.Although fraud is sometimes treated as a separate issue, “fraud and undue influence” are generally coupled and the burden of proofwith respect to fraud also lies on those attacking the will. (Emphasis added) Further, Sopinka J. went on to clarify that “fraud and undue influence are to be treated as an affirmative defence to be raised by thoseattacking the will” (Vout at para 28). [29] It is clear from the above decision that the party alleging testamentary undue influence has the onus of proving its existenceand the rebuttable presumption of undue influence, as it exists in the context of inter vivos gifts, is not applicable. 2.

Test for undue influence [30] In Vout, the Supreme Court reviewed the legal test for undue influence.

At paragraph 29, Sopinka J. cited the decision ReMartin; MacGregor v Ryan, (SCC), [1965] SCR 757 at 765–766, where Ritchie J. relied upon Viscount Haldane’sjudgment in Craig v Lamoureux (1919), (UK JCPC), 50 DLR 10 (UK JCPC) [Craig], where the Viscount had stated atpage 15: … Undue influence, in order to render a will void, must be an influence which can justly be described by a person looking at the matterjudicially to have caused the execution of a paper pretending to express a testator’s mind, but which really does not express his mind, butsomething else which he did not really mean. … [31] In this case, the Chambers judge found no evidence that gave rise to a genuine issue to be tried on the notion that Mary and Almay have exerted undue influence over Ernie (para 48).

The Chambers judge focussed on the time leading up to Ernie’s decision to makehis Will, his consideration of the contents of that Will and a timeframe after his signing of the Will that “may have probative value withthe issue of undue influence” (at para 42). The Chambers judge made an appropriate determination because the arguments put forth byEd failed to point to any evidence of manipulation, coercion, or an abuse of power by Mary and Al over Ernie. Specifically, theChambers judge made the following findings of fact relating to the issue of undue influence: (

a) Ernie’s lack of education and sophistication did not prevent him from running a successful farming operation from when hisfather died in 2007 to the date of his death without any assistance. The farming operation forms the basis for the substantial assets thatErnie accumulated during his life (paras 36, 40 and 44). (

b) There was no evidence to support Ed’s contention that Mary and Al exerted such control over Ernie that his will wasoverborne “so that in truth what he or she does is not his or her own act” (para 45). (

c) There was no evidence to support Ed’s statement Ernie advised Ed that Mary prepared Ernie’s Will (para 46). (

d) The evidence from Ed and Christine that Ernie advised them that his intention was to benefit all his nieces and nephews inhis Will is not probative evidence of any undue influence at the time of the making of the Will, which occurred years prior to this statedintention (para 47). (

e) Ed’s contention that Ernie did not like Al is Ed’s subjective opinion only and does not support evidence of undue influence(para 48). [32] I agree with the conclusion of the Chambers judge that there was no evidence relating to undue influence on the part of Maryand Al and I would dismiss this ground of appeal. C. Knowledge and approval of the contents of the Will

1. Knowledge and approval of the contents of the Will as distinct from testamentary capacity [33] In Vout, Sopinka J. wrote that: [26] Suspicious circumstances in any of the three categories to which I refer above will affect the burden of proof with respect toknowledge and approval. The burden with respect to testamentary capacity will be affected as well if the circumstances reflect on themental capacity of the testator to make a will.

Although the propounder of the will has the legal burden with respect to due execution,knowledge and approval, and testamentary capacity, the propounder is aided by a rebuttable presumption.

Upon proof that the will wasduly executed with the requisite formalities, after having been read over to or by a testator who appeared to understand it, it willgenerally be presumed that the testator knew and approved of the contents and had the necessary testamentary capacity. (Emphasis added) [34] This passage confirms that knowledge and approval and testamentary capacity are separate concepts since Sopinka J. listeddue execution, knowledge and approval, and testamentary capacity as three separate legal burdens and went on to say: [27] Where suspicious circumstances are present, then the presumption is spent and the propounder of the will reassumes the legalburden of proving knowledge and approval.

In addition, if the suspicious circumstances relate to mental capacity, the propounder of thewill reassumes the legal burden of establishing testamentary capacity. ... [35] While Ed argues the Chambers judge erred when he only examined the issue of testamentary capacity instead of whetherErnie had the requisite knowledge and approval, this is not a valid concern for several reasons. First, at paragraph 40, the Chambersjudge stated: ... None of the circumstances alleged by the applicant create suspicion in the mind of the Court that Ernie knew and approved [sic] thecontents of his Will.

The cumulative effect of the arguments made in this regard do not advance the notion that a genuine issue to be triedexists with respect to testamentary capacity. (Emphasis added) [36] This indicates that the Chambers judge did in fact consider the issue of knowledge and approval, and not just testamentarycapacity, in his analysis. [37] Second, even if the Chambers judge only examined the issue of testamentary capacity as alleged by Ed, proof of capacity,combined with execution, is enough to discharge the propounder of the will’s burden since the testator’s knowledge and approval will bepresumed.

This presumption, which is rebuttable, is based upon the maxim “Omnia praesumuntur rite esse acta”, which looselytranslates as “all things are presumed to be done in due form”. Chief Justice Culliton explained the use of the maxim in R v Rorquist, (SK CA), [1981] 1 WWR 279 (Sask CA): [10] The classic definition and application of the maxim “Omnia praesumuntur rite esse acta” are set out by Lindley, L.J., in Harrisv.

Knight (1890), 15 P.D. 170, at p. 179, as follows: The maxim, “Omnia praesumuntur rite esse acta,” is an expression, in a short form, of a reasonable probability, and of the propriety inpoint of law of acting on such probability. The maxim expresses an inference which may reasonably be drawn when an intention to dosome formal act is established; when the evidence is consistent with that intention having been carried into effect in a proper way; butwhen the actual observance of all due formalities can only be inferred as a matter of probability.

The maxim is not wanted where suchobservance is proved, nor has it any place where such observance is disproved. The maxim only comes into operation where there is noproof one way or the other; but where it is more probable that what was intended to be done was done as it ought to have been done torender it valid; rather than that it was done in some other manner which would defeat the intention proved to exist, and would renderwhat is proved to have been done of no effect. [38] Ed argues that, since Mr. Kyba predeceased Ernie, there was no proof that the Will was read over by Ernie and that Ernieunderstood it.

Ed bases this argument on the Supreme Court of Canada’s decision in Vout at paragraph 26. Since it is the crux of Ed’sargument, paragraph 26 will be repeated here: Suspicious circumstances in any of the three categories to which I refer above will affect the burden of proof with respect to knowledgeand approval. The burden with respect to testamentary capacity will be affected as well if the circumstances reflect on the mentalcapacity of the testator to make a will.

Although the propounder of the will has the legal burden with respect to due execution,knowledge and approval, and testamentary capacity, the propounder is aided by a rebuttable presumption. Upon proof that the will wasduly executed with the requisite formalities, after having been read over to or by a testator who appeared to understand it, it willgenerally be presumed that the testator knew and approved of the contents and had the necessary testamentary capacity. (Emphasis added) [39] The British Columbia Court of Appeal dealt with a similar issue in Yen Estate v Yen-Zimmerman, 2013 BCCA 423, 49 BCLR(5th) 118.

There, the Court of Appeal held that, in the absence of suspicious circumstances surrounding the execution of the will andgiven the evidence that the deceased had signed the will, the trial judge was entitled to rely on the presumptions regarding execution,knowledge and approval. [40] The British Columbia Court of Appeal also dealt with an argument that the Supreme Court of Canada in Vout did away withthe presumptions. The Court of Appeal stated at paragraph 26:

Indeed, the decision in Vout v. Hay supports the use of presumptions in proving a will in solemn form. The Supreme Court of Canadaendorsed the use of presumptions that the testator knew and approved of the contents of the will and that the testator had the necessarytestamentary capacity. The Court held the presumptions applied even though there was no evidence that the testator had read the will or had it read to him. [41] In this case, there is no issue that Ernie’s Will was properly executed in compliance with s. 7 of The Wills Act, 1996, SS 1996,c W-14.1.

Proper execution of Ernie’s Will combined with the absence of any suspicious circumstances allowed the Chambers judge toconclude that Ernie had knowledge and approval of the contents of his Will. Further, even though there was no evidence that Ernie hadeither the Will read to him or had read it over, the Chambers judge noted the following factors tending to confirm his knowledge andapproval of the contents of the Will: (

a) Ernie met with Mr. Kyba on April 10, 2006, and April 12, 2006 – the first meeting was to provide instructions relating toboth his Last Will and Testament and his Power of Attorney; (

b) the notes of Mr. Kyba essentially mirror the contents of Ernie’s Will and, in particular, the notes contain the same clauseleaving nothing to Ed that is the subject of this dispute; and (

c) Mr. Kyba had the opportunity to observe Ernie twice and signed the Independent Legal Advice and Witness Certificate forthe Power of Attorney with respect to Ernie’s capacity to understand the nature and effect of the Power of Attorney. [42] Furthermore, Ed’s concern that Ernie left him nothing in the Will “because I feel my brother is well off and has no need forfurther funds or assets” is, as noted by the Chambers judge, simply Ernie’s subjective belief that this was true. Like the Chambers judge,I find nothing suspicious in this statement.

In my view, this statement provides justification by Ernie for disinheriting Ed, who, after all,would otherwise logically have been a beneficiary. [43] Once again, I agree with the conclusion of the Chambers judge on the issue of knowledge and approval and I would not giveeffect to this ground of appeal. 2. Doctrine of righteousness [44] Ed has also attempted to rely upon the doctrine of righteousness in his factum.

The Supreme Court addressed this doctrine inRiach v Ferris, (SCC), [1934] SCR 725 at 730–731, stating: After reviewing what he regarded as the salient facts of the case and stating that the facts as found by him brought the case within theprinciple of the rules laid down by Baron Parke in Barry v. Butlin, His Lordship quotes these rules as follows:—

(1) The onus probandi lies in every case upon the party propounding a will; and he must satisfy the conscience of the court that theinstrument so propounded is the last will of a free and capable testator, and

(2) If a party writes or prepares a will, under which he takes a benefit, that is a circumstance that ought generally to excite the suspicionof the court, and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favour of which itought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true willof the deceased. Then he quotes the dictum of Lord Hatherley, regarding Baron Parke’s second rule, from Fulton v.

Andrewas follows:— There is one rule which has always been laid down by the Courts having to deal with wills, and that is, that a person who is instrumentalin the framing of a will, *** and who obtains a bounty by that will, is placed in a different position from other ordinary legatees who arenot called upon to substantiate the truth and honesty of the transaction as regards their legacies. *** But there is a farther onus uponthose who take for their own benefit, after having been instrumental in preparing or obtaining a will.

They have thrown upon them theonus of shewing the righteousness of the transaction. and adds that these rules of law have since been observed in a line of cases of the highest authority. And under later cases there has been a further expansion,so that, as pointed out by Lord Justice Lindley in Tyrrell v. Painton, “The rule in Barry v.

Butlin is not confined to the single case inwhich a will is prepared by or on the instructions of the person taking large benefits under it, but extends to all cases in whichcircumstances exist which excite the suspicion of the Court; and wherever such circumstances exist and whatever their nature may be it isfor those who propound the will to remove such suspicion.” (Emphasis added) [45] It appears that this doctrine may apply when a person, who is “instrumental” in the drafting of the will, also receives a benefitfrom the will greater than other beneficiaries.

There may be a requirement for such recipients to prove the “righteousness” of thetransaction. However, the Court went on to state that these rules of law apply to all circumstances that raise the “suspicion” of the Courtand not only under circumstances where a person who is instrumental in the drafting of the will receives a superior benefit.

This maysuggest that the “doctrine of righteousness” is really just an example the Court finding a certain kind of relationship to be a suspiciouscircumstance such that the burden of proof shifts to the propounder of the will. [46] However, John Poyser, in Capacity and Undue Influence (Toronto: Thomson Reuters Canada Limited, 2014), as cited by Edin his factum, states that this doctrine should not be confused with suspicious circumstances and is its own unique legal doctrine. Hedefined the principle at pages 247–248:

... [W]henever a person is instrumental in the generation of a will under which he or she benefits, or the circumstances are otherwise of a character that causes the court to be concerned over whether the will-maker truly understood the will and its effect, the court can refuse to put the will to probate unless given affirmative proof that the will-maker had actual knowledge of its contents and operative effect. ... [ 47 ] Poyser, at page 248, admits that the term doctrine of righteousness “appears to be falling from judicial vogue.” Whether the doctrine itself still exists, or has simply been absorbed into other related concepts, does not make much difference in this case.

At paragraph 25, the Chambers judge states “[t]he evidence from Mr. Kyba’s files does not disclose any involvement of Mary in giving instructions for the preparation of the Will or being involved in its execution.” The Chambers judge examined the evidence from Mr. Kyba’s law firm and rejected the possibility that Mary was instrumental in the generation of Ernie’s Will. Furthermore, as already noted, the Chambers judge did not find any suspicious circumstances that might trigger the doctrine. Therefore, the doctrine of righteousness, if it still exists, does not apply in this case.

VII. conclusion [ 48 ] Ed has failed in his attempt to set aside the decision of the Chambers judge on the basis that the Chambers judge erred in his conclusion that Ernie had the requisite knowledge and approval of the contents of the Will and that Ernie was not unduly influenced to execute his Will. The appeal is dismissed. Mary and Al are entitled to costs from Ed to be assessed on the appropriate Column. Mary and Al are also entitled to costs to be paid out of Ernie’s estate to cover such of their reasonable legal expenses as are not covered by the costs payable by Ed. “Herauf J.A.” Herauf J.A.

I concur. “Richards C.J.S.” Richards C.J.S. I concur. “Caldwell J.A.” Caldwell J.A.