Olson v Skarsgard Estate, 2018 SKCA 64

Court of Appeal for Saskatchewan Docket: CACV3096 Citation: Olson v Skarsgard Estate , 2018 SKCA 64 Date: 2018-08-22 Between: Ann Olson Appellant (Respondent) And Lynn Marie Skarsgard, personal representative of the Estate of Sigurd Olav Skarsgard Respondent (Applicant) Before: Richards C.J.S., Caldwell and Herauf JJ.A. Disposition: Appeal allowed in part Written reasons by: The Honourable Mr. Justice Caldwell In concurrence: The Honourable Chief Justice Richards The Honourable Mr. Justice Herauf On Appeal From: SUR 5 of 2017, Prince Albert Appeal Heard: May 16, 2018 Counsel: Melvin R.

Annand, Q.C. for the Appellant Leo F. Pinel for the Respondent Caldwell J.A. I. Introduction [ 1 ] This appeal involves the estate of Sigurd Olav Skarsgard [Testator]. In a fiat dated June 26, 2017 [Fiat], a Queen’s Bench Chambers judge discharged a caveat registered by the Testator’s sister, Ann Olson, against title to certain lands. The Chambers judge also ordered the immediate issuance of letters probate, as had been requested by the Testator’s spouse and personal representative, Lynn Marie Skarsgard. Ms. Olson now appeals against the Fiat and, ultimately, seeks to have Ms.

Skarsgard prove the Testator’s will in solemn form. [ 2 ] For the reasons that follow, I find no error in the Chambers judge’s conclusion that Ms. Olson lacks the standing necessary to challenge the Testator’s will. I would dismiss the appeal on substantive grounds but vary the costs awarded in the Court of Queen’s Bench. II. background [ 3 ] In brief terms, the Testator was a successful farmer, running a mixed-farming operation near Shellbrook, Saskatchewan. In October 2015, he was diagnosed with terminal esophageal cancer. On March 3, 2016, the Testator married Ms. Skarsgard.

On March 14, 2016, he made a Last Will and Testament [Will] under which he appointed Ms. Skarsgard as the executor and sole beneficiary of his estate. He died on May 13, 2016, at the age of 65 years old. He was predeceased by his parents, but survived by his only sibling, Ms. Olson. Following his death, Ms. Skarsgard applied to the Court of Queen’s Bench for letters probate and, under Rule 16-43 of The Queen’s Bench Rules , for a direction to the effect that Ms. Olson had not provided a sufficient basis to have the Will proven in solemn form. [ 4 ] In the hearing before the Chambers judge, Ms.

Olson disputed the nature of the relationship between the Testator and Ms. Skarsgard. She described Ms. Skarsgard as a “caregiver”, but not as one spouse might care for the other. Ms. Olson also disputed the paternity of Ms. Skarsgard’s daughter, whom the Testator had acknowledged as his daughter. Ms. Olson also alleged the Testator had suffered from a cognitive impairment near the end of his life. She pointed to the fact he had told his lawyer he had no farmland when he gave instructions for his Will, when in fact he had land in his name at the time he signed his Will. [ 5 ] In response to these allegations, Ms.

Skarsgard adduced evidence of her relationship with the Testator, which had its origins sometime in 2000. The pastor who performed their subsequent marriage ceremony averred to the community’s understanding of their common law relationship prior to marriage. The lawyer who prepared the Will swore an affidavit as to his involvement in that process and his observations of the Testator at that time, averring that he had had no concerns about the Testator’s capacity to instruct him or to execute the Will. Other evidence adduced indicated the Testator had publicly acknowledged his common law relationship with Ms.

Skarsgard and had acknowledged her daughter as his own daughter as early as 2005. The evidence adduced by Ms. Skarsgard also included a holographic will executed on November 21, 2015, under which the Testator would have left his entire estate to Ms. Skarsgard and her three children. [ 6 ] Given this evidence, the Chambers judge firmly rejected Ms. Olson’s allegations as unsubstantiated, stating there was “absolutely no evidence before the Court that the deceased’s marriage was invalid or that the birth certificate issued by Vital Statistics in January 2002 is not in fact correct” (at para 10).

He later stated it was “abundantly clear” the Testator had been “well aware of his obligations and desires to provide for his wife, child and step-children upon his demise” (at para 18).

III. fresh evidence application [7] As a preliminary matter, Ms. Olson seeks to adduce fresh evidence in this appeal in support of the allegations she had madein the Court of Queen’s Bench. Ms. Olson asks the Court to admit into evidence: (

a) a copy of an application made in February 2016 toamend the birth certificate of the Testator’s daughter by adding him as her birth father; and (

b) copies of land titles searches and transferdocuments, the latter of which were executed by the Testator on March 23, 2016, shortly after he had executed his Will. [8] It is well known this Court will not allow a party to adduce fresh evidence in an appeal if: (

a) by due diligence, it could have been adduced in the hearing before the tribunal appealed from; (

b) it is not relevant to a material issue in the hearing before the tribunal appealed from; (

c) it is not credible; or (

d) it is not practically conclusive of a decisive issue in the hearing before the tribunal appealed from.

See Rule 59 of The Court of Appeal Rules; Maitland v Drozda, (SK CA), [1983] 3 WWR 193 (Sask CA), TurboResources Ltd. v Gibson (1987), (SK CA), 60 Sask R 221 (CA); and Gritzfeld v Zuidema Farms Inc., 2009 SKCA 51,331 Sask R 63, among others. [9] Applying the admission criteria in this case, I find the proffered evidence is credible but it fails to satisfy in all other regards.As to the first batch of information, the birth certificate evidence could have been obtained prior to the Chambers hearing through theexercise of due diligence. In fact, Ms.

Olson had requested it prior to that hearing but apparently not far enough in advance to ensurereceipt of it before the hearing. Moreover, as I will explain in detail below, a question as to whether the Testator was the biological fatherof his daughter had little bearing on the result of the application before the Chambers judge. As to the second batch, the land titlesevidence was readily-obtainable at any time prior to the hearing by means of an electronic search of land titles records, but Ms. Olson didnot seek to obtain this evidence until seven months after the hearing.

Furthermore, the proffered information shows the Testatortransferred farmland to a third party just nine days after he had executed his Will. Given the Chambers judge’s reasons for grantingletters probate, I am unable to conclude the proffered evidence is practically conclusive of a decisive issue in the hearing before theChambers judge or that it could reasonably be expected to have affected its result. As such, I would deny Ms. Olson’s application toadduce fresh evidence. IV. appeal proper [10] Turning to appellate review of the Fiat, I find no basis upon which to interfere with the Chambers judge’s decision.

As I readhis reasons, the Chambers judge first found Ms. Olson did not have standing to challenge the Will. Second, and alternatively, theChambers judge found there was no credible evidence upon which to conclude Ms. Olson had raised a triable issue with respect totestamentary capacity or any other ground that might impugn the validity of the Will. I will address each of these aspects of the Fiat inturn. A. Standing [11] As to the question of standing, I recognise the Chambers judge had himself raised this as an issue but that fact does notundermine his reasoning.

In the Fiat, the Chambers judge wrote: [7] At the time of hearing this application the Court raised an issue with counsel for [Ms. Olson] as to the basis of his client’s right toregister the caveat and contest the validity of her brother’s Last Will and Testament. Even if this Last Will and Testament was found tobe not valid and his estate was to pass by administration, he was in fact married at the date of his death to the proposed executrix and isthe father of one of her children as evidenced by the birth certificate for [name redacted], registered January, 9, 2002 in which thedeceased is named as the father.

Therefore, even if the application were successful, [Ms. Olson] has no standing to bring the application. [8] As set out in Verbonac Estate (Re) (1997), (SK KB), 159 Sask R 299 (QB), only “persons who are entitledunder an intestacy, a legatee in the will, and an executor or beneficiary under any other testamentary instrument are interested persons”under this rule. [Ms. Olson] is none of the above. [9] Therefore, [Ms.

Olson] had no right to register the caveat delaying the issuance of Letters Probate and requiring the proposedexecutrix and immediate family of her deceased brother to be required to proceed with this application. [12] In this Court, Ms. Olson first says the Chambers judge erred in ruling that she lacked standing to register a caveat. That maybe true. Rule 16-38 of The Queen’s Bench Rules provides that “any person intending to oppose” a grant of probate may file a caveat andMs. Olson would certainly seem to satisfy that requirement on the face of things.

However, if it is an error, it is of no consequencebecause it did not affect the bottom-line decision of the Chambers judge. [13] The critical finding of the Chambers judge was that Ms. Olson lacked the standing to challenge the Will under Rule 16-46 ofThe Queen’s Bench Rules. In that regard, Rule 16-46 is straightforward in its description of who may seek proof of a will in solemnform: 16-46 A person who is or may be interested in the estate of a deceased person may give notice for the will to be proven in solemn form. [14] Ms.

Olson’s claim of standing to challenge the Will is based on her contention that she is, as his sister, the Testator’s sole

surviving next-of-kin and would take the whole of his estate in intestacy. In support of her claim of error, Ms. Olson points out that shequestioned the validity of the marriage between the Testator and Ms. Skarsgard, questioned whether the Testator was the biologicalfather of his daughter, and challenged the validity of the Will. This, Ms. Olson asserts, was enough to show that she “may be interested inthe estate”. [15] Rule 16-46 is straightforward in its language.

Perhaps for that reason, few cases have addressed the question of who hasstanding to give notice under Rule 16-46 to have a will proven in solemn form.

In Saskatchewan, although Laing J. (as he then was) didnot have to resolve the question of who “may be interested in the estate”, he nonetheless helpfully addressed the issue of who is“interested in the estate” under the predecessor to Rule 16-46 in Verbonac Estate, Re (1997), (SK KB), 159 Sask R299 (QB), where he said: [8] It is not necessary to resolve who “may be” interested in an estate for the purposes of Rule 734, because the applicants arepersons “interested” in the estate.

Tristram and Coote, Probate Practice, 23rd Ed. (London: Butterworths, 1970), at pp. 622-623indicates that persons who are entitled under an intestacy, a legatee in the will, and an executor or beneficiary under any othertestamentary instrument are interested persons and are entitled “to proof in solemn form either before or after probate has been taken incommon form ...”. These same persons would be interested persons under rules 734 and 735. [16] The old English rules of court, upon which our probate practice and procedure rules were based originally, set out the sameintention as Rule 16-46. For example, R.F.

Burnand and A.S. Diamond noted in The Annual Practice, vol 1 (London, England: Sweet &Maxwell, 1958) at 7 [White Book]:

(1) Probate in Solemn Form.—Any person whose interest in the estate of a deceased person is prejudiced by a testamentary documentmay compel the executor, or other person entitled to a grant under it, to prove the document in solemn form of law—that is, to propoundit in a writ of summons and establish it by the examination of one or more of the attesting witnesses (see Belbin v. Skeates, 1 Sw. & Tr.148). See also Williams on Executors, 10th ed., pp. 253 et seq., and O. 21, r. 18. The attesting witnesses are witnesses of the Court, andmay be cross-examined by the party calling them (Jones v.

J. (1908), 24 T.L.R. 839). The following notations are found under Order 16, Rule 10 in the White Book at 344: Probate Actions.—Includes actions and other matters relating to the grant or recall of probate or of letters of administration other thancommon form business, O. 71, r. 1. Cf. J.A., 1925, s. 100. Any person who has an interest, or even a possibility of an interest, in the estate of the deceased, has a right to become a party to aprobate action (see Kippling v. Ash, 1 Rob. 270; 4 N.C. 177; Crispin v.

Doglioni, 2 Sw. & Tr. 17; 29 L.J.P. 130). [17] In Williams on the Law of Executors and Administrators, 13th ed, vol 1 (London, England: Stevens & Sons, 1953) at 79, 82and 83–84, the authors explain the old English probate rule on persons interested in an estate as follows: 123.

PracticeWhen a will is to be proved in solemn form, it is still requisite, in accordance with the old practice that such persons as have interest (thatis to say, persons interested under other wills or codicils, and the widow and next-of-kin of the deceased, to whom the administration ofhis goods ought to be committed, if he died intestate, and the heir-at-law, if there was real estate and the death occurred before 1926)should be made parties to the action, or should be cited to be present at the probation and approbation of the testament. … 129.

Next-of-kin can call for proof in solemn formThe next-of-kin, as such merely, are entitled to call for proof in solemn form of the deceased’s will, of common right. The mereacquiescence of a next-of-kin to the probate being taken in the common form is no bar to the exercise of this right, even though he hasreceived a legacy as due to him under the will; for he is still at liberty to call in the probate, and put the executor to proof of that identicalwill per testes. … … 131.

Person contesting may have to show interestBefore a person can be permitted to contest a will, the party propounding has a right to call on him to show that he has some interest. Any interest, however slight, and even, it seems, the bare possibility of an interest, is sufficient to entitle a party to oppose a testamentarypaper.

Thus where a testator disposed of all his personal estate by his will and gave his real estate, but none of his personal, to hisbrother’s children, and by a codicil he gave them pecuniary legacies, revoking the devise to them of the real estate which was of greatervalue than the legacies, it was held that they might oppose the codicil alone, notwithstanding their only right to a share of the personaltywas under it.

Though a next-of-kin may, as such, oppose all the testamentary papers as having an interest in having them set aside as awhole, he has not, as a matter of course, a right to oppose any particular one he may think fit; but some interest in having that particularpaper set aside, however remote, may suffice. [18] A useful

summary of Canadian practice, which is consistent with the old English practice, is found in the followingcommentary by Ian M. Hull in Halsbury’s Laws of Canada, Wills and Estates, 2016 Reissue (Markham: LexisNexis, 2016) at 543: Standing. A person who may take as either a beneficiary under a previous will or as a beneficiary in the case of an intestacy has asufficient financial interest to be granted status to attack the validity of a will.

Someone who has not received notice of proceedings toprove in solemn form may intervene in the proceedings, but if the person is cognizant of the proceedings and does not intervene, theperson is bound thereby. [19] Justice Laing’s finding in Verbonac Estate, Re is also supported by reference to decisions of the courts of Nova Scotia and

Ontario, who have taken a similar view of standing to contest a will under their own probate rules, see as examples: Collicutt Estate, Re(1993), (NS SC), 120 NSR (2d) 389 (Prob Ct); Kenny v Kenny Estate, 2016 NSSC 214, 376 NSR (2d) 271; Korstenv Lovett (2002), 48 ETR (2d) 41 (Ont Sup Ct); McLaughlin v McLaughlin, 2015 ONSC 3491 at para 28, 11 ETR (4th) 183; Smith vVance (1997), 12 CPC (4th) 391 (Ont Ct J (Div Ct)). [20] The persons to which Rule 16-46 speaks include those identified by Laing J. in Verbonac Estate, Re, namely, any beneficiaryunder the will in question, any executor or beneficiary under any other valid or potentially valid testamentary instrument, and any personwho would be entitled under intestacy if the will were challenged successfully.

To those listed in Verbonac Estate, Re, I would add thatpersons ostensibly entitled to support from a testator under The Dependants’ Relief Act, 1996, SS 1996, c D-25.01, may have an interestin the testator’s estate if a court finds the testator has disposed of real or personal property “in a manner that reasonable provision has notbeen made for the maintenance of the dependant”. Similarly, a spouse or former spouse of a testator may have an interest in thetestator’s estate by reason of an application under

Part VI of The Family Property Act, SS 1997, c F-6.3. In some circumstances, abeneficiary in an action brought under The Fatal Accidents Act, RSS 1978, c F-11, may have an interest in an estate. These are butexamples; this is not a closed list. [21] In each case, the court must determine whether a person “is or may be interested in the estate of a deceased person” on thebasis of the evidence adduced. This means a person who seeks to have a will proven in solemn form bears the evidentiary and persuasiveburden of establishing that he or she has standing to do so.

That is, the person must present enough evidence to satisfy the court that he orshe is or may be interested in the estate. For example, a person claiming to have an interest in an estate if it were administered inintestacy would have to adduce evidence sufficient to establish a relationship to the testator that satisfies the foremost applicable ruleunder the hierarchy of rules of succession set out in The Intestate Succession Act, 1996, SS 1996, c I-13.2.

Regardless of the context, aperson seeking to have a will proven in solemn form must do more than merely assert that they have or may have an interest in the estate.They must adduce evidence sufficient to support that inference. [22] In this case, Ms. Olson asserted she had standing to have the Will proven in solemn form because she is the Testator’s sisterand sole surviving next-of-kin.

In general terms, where a court is satisfied that a testator’s sibling may be the sole surviving next-of-kin(i.e., the evidence shows that the testator has died leaving no spouse, issue or parent), the sibling would have standing to challenge thetestator’s will.

This is because the sibling’s claim to an interest in the estate would be grounded in the evidence of those facts and thesuccession rule in s. 10 of The Intestate Succession Act, 1996: No spouse, issue or parent10 Where an intestate died leaving no spouse, issue, father or mother, the estate goes to the intestate’s brothers and sisters in equalshares, and if any brother or sister is dead, the children of the deceased brother or sister take the share their parent would have taken ifliving. [23] However, Ms. Olson’s claim to being the Testator’s sole surviving next-of-kin was not accepted by the Chambers judge.

Thatis, he found she had not met the evidentiary or persuasive burden of satisfying him that she may be a person interested in the Testator’sestate. [24] To explain, this was not simply a matter of establishing the death of the Testator’s parents and the fact that Ms. Olson was hisonly sibling. I underscore here that, to establish her standing, Ms. Olson had to adduce sufficient evidence upon which the Chambersjudge could have drawn at least three inferences: (

i) that the Testator’s legal marriage to Ms. Skarsgard might be invalid; (ii) that theTestator and Ms. Skarsgard might not otherwise be spouses within the meaning of The Intestate Succession Act, 1996; and (iii) that hemight not be the biological father of his daughter. Only if all three of these inferences were open to the Chambers judge would it bepossible to conclude that Ms. Olson might be the Testator’s sole surviving next-of-kin.

Then she would have standing, but she would stillhave to show there were genuine issues to be tried as to the validity of the Will and, if successful on that count, as to the validity of theholographic will; only then might the Testator’s estate fall into intestacy and pass to Ms. Olson. [25] Accordingly, in support of her claim, Ms. Olson had attempted to call into question the validity of the Testator’s marriage toMs. Skarsgard and the paternity of the Testator’s daughter. She also attempted to raise issues as to the validity of the Will on the basis ofcapacity and undue influence.

The Chambers judge found there was no evidence to support any of Ms. Olson’s allegations about theTestator’s relationship with Ms. Skarsgard, about the paternity of the Testator’s daughter or as to the validity of the Will. [26] As noted earlier in these reasons, Ms. Olson sought to adduce fresh evidence that she suggested undermined the correctness ofthe daughter’s birth certificate. I observed that, even if that were the case, it could not have affected the result. I said that because, as theChambers judge found, the evidence Ms.

Skarsgard adduced at the hearing supported the fact she and the Testator had cohabited as earlyas 2005 and that they had undoubtedly legally married on March 3, 2016. For the purposes of intestacy, the word spouse is defined in s.2 of The Intestate Succession Act, 1996 as: (

a) the legally married spouse of the intestate; or (

b) if the intestate did not have a spouse within the meaning of clause (

a) or had a spouse within the meaning of clause (

a) to whomsection 20 applies[1], a person who: (

i) cohabited with the intestate as spouses continuously for a period of not less than two years; and (ii) at the time of the intestate’s death was continuing to cohabit with the intestate or had ceased to cohabit with the intestate within the24 months before the intestate’s death. (« conjoint ») The fact that Ms. Skarsgard and the Testator had cohabited and were later married is important in the context of Ms.

Olson’s claim inintestacy because, where a deceased has left a spouse but no issue, the foremost succession rule under The Intestate Succession Act, 1996provides that “the whole estate goes to the spouse” (s. 8). [27] That is, the issue of the daughter’s paternity was largely irrelevant to the Chambers judge’s bottom-line decision on Ms.

Olson’s standing because he found no basis in the evidence adduced by Ms. Olson upon which to question the validity of the Testator’smarriage to Ms. Skarsgard. I can see no palpable and overriding error in that finding. Indeed, Ms. Olson had merely stated her opinionthat the Testator had been a bachelor until marriage and had lived alone until November 2015. There was no actual evidence to indicatethat the marriage might be invalid or that the Testator and Ms.

Skarsgard might not have cohabited for two years or more; whereas, therewas compelling evidence of the validity of the marriage, of a spousal relationship prior to it and, for that matter, of the paternity of thedaughter. [28] In short, I find no basis whatsoever to Ms. Olson’s assertion that the Chambers judge erred in finding she lacked the standingto seek proof of the Will in solemn form. I would dismiss the appeal on this basis alone. B. Genuine issue to be tried [29] Ms. Olson’s second ground of appeal only arises if she has standing to challenge the Will.

As I have found no reason to setaside the Chambers judge’s finding that she does not, I will only briefly address her argument that the Chambers judge erred in law whendetermining whether the matter gave rise to a “genuine issue to be tried” as to the validity of the Will. [30] As the Chambers judge understood, before a court will require proof in solemn form, the evidence must establish a “genuineissue to be tried”. Ms. Olson says he erred by requiring her to positively affirm that the Testator had been subject to undue influence andhad lacked testamentary capacity.

She also says the Chambers judge erred in weighing the affidavit evidence before him. Finally, Ms.Olson submits the Chambers judge erred in his findings of fact. [31] To start, the Fiat reveals no obvious error of law.

The Chambers judge correctly identified the appropriate legal test as that setout by this Court in Ritchie v Royal Trust Corporation of Canada, 2007 SKCA 64, 293 Sask R 238, which Herauf J.A. recentlyconfirmed in Bachman v Scheidt, 2016 SKCA 150, [2017] 2 WWR 301, where he wrote: [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. [32] The Chambers judge in this case proceeded correctly. He accepted the uncontroverted affidavit evidence he had received atface value, including that of the pastor who had performed the marriage ceremony. The Chambers judge also relied on the holographicwill, as part of the uncontroverted evidence, to find that the Testator had been aware of and had recognised his duty to provide for hisspouse and her three children.

He relied on the uncontroverted evidence of the Testator’s lawyer as to due execution of the Will,testamentary capacity and undue influence. In that regard, in Vout v Hay, (SCC), [1995] 2 SCR 876 [Vout], Sopinka J.wrote: [26] … The burden with respect to testamentary capacity will be affected as well if the circumstances reflect on the mental capacity ofthe testator to make a will. Although the propounder of the will has the legal burden with respect to due execution, knowledge andapproval, and testamentary capacity, the propounder is aided by a rebuttable presumption.

Upon proof that the will was duly executedwith the requisite formalities, after having been read over to or by a testator who appeared to understand it, it will generally be presumedthat the testator knew and approved of the contents and had the necessary testamentary capacity. In the end, the Chambers judge concluded there was no genuine issue to be tried regarding testamentary capacity or undue influence. [33] In this appeal, Ms. Olson raised the presumption of undue influence, saying Ms. Skarsgard bore the onus of “[providing]uncontradicted evidence there was no undue influence” (appellant factum at para 52).

This is not correct. The presumption applies onlyto gifts made during an individual’s lifetime; the breadth of the presumption does not capture testamentary dispositions: Karpinski vZookewich Estate, 2018 SKCA 56 at para 29 [Karpinski]; Seguin v Pearson, 2018 ONCA 355 at paras 10–11, 36 ETR (4th) 1. [34] Although Ms. Olson has attempted to characterise Ms. Skarsgard as the Testator’s “caregiver” and, therefore, in a specialposition to influence him, I find the existence of such a relationship would have had no bearing on the Chambers judge’s analysis.

I reachthat conclusion because in Ravnyshyn v Drys, 2007 BCCA 400, 33 ETR (3d) 189, the Court directly addressed the issue of whether apresumption of undue influence exists where the party seeking to challenge a will has established that a special relationship existedbetween a named beneficiary and the testator.

I agree with the Court’s finding in that case where it said: [16] Counsel for the appellants sought to distinguish Vout on the basis that it was not dealing with circumstances involving a “specialrelationship”, but he was unable to point to any authority which supported his proposition that the burden of proof shifts to thebeneficiary under a will to disprove undue influence in circumstances where there is a “special relationship”, or which dealt with theconcept of a “special relationship” in the wills context.

In our view, the Vout decision, which cites Craig with approval on this point, is acomplete answer to the appellants’ submission. [35] In Karpinski at para 28, Herauf J.A. cited Vout (at paras 21 and 28) for the proposition that undue influence is “an affirmativedefence to be raised by those attacking the will” and then described what the attacking party had to prove: [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 Lamoureaux (1919), (UK JCPC), 50 DLR 10 (UK JCPC) [Craig], where the Viscount had statedat page 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 be a testator’s mind, but which really does not express his mind, butsomething else which he did not really mean. … [36] As such, I find no error in the Chambers judge’s approach to this matter or in his conclusion. If she had had standing,Ms. Olson bore the onus throughout of raising a genuine issue to be tried.

As noted, the Chambers judge found there was no basis on theevidence before him to suppose the Testator had been subject to undue influence and I can see no error in that finding. Accordingly, Ifind there is no merit to the second ground of appeal. C. Solicitor-client costs [37] In the Fiat, the Chambers judge ordered Ms. Olson to pay solicitor-client costs to Ms. Skarsgard, stating: [25] As [Ms. Olson] had neither standing nor valid justification for causing delay and expense to her brother’s widow and herchildren, [Ms. Skarsgard] shall have her costs on a solicitor/client basis to be paid forthwith by [Ms.

Olson]. [38] Awards of costs are “quintessentially discretionary” and, therefore, should only be set aside on appeal if the judge has erred inprinciple or if the award is plainly wrong: Sun Indalex Finance, LLC v United Steelworkers, 2013 SCC 6 at para 247, [2013] 1 SCR 271.As Cameron J.A. explained in Benson v Benson, (1994), (SK CA), 120 Sask R 17 (CA) at paras 89–90: [89] ...

In general costs are in the discretion of the court with full power to determine by whom and to what extent they are to be paid.The exercise of that discretion has been taken to be limited only by the need to act judicially on the facts of the case. Its exercise isotherwise “unfettered and untrammelled”. … [90] That, combined with the nature of our function in relation to appeals concerning the exercise of judicial discretion, serves tosignificantly narrow the scope for appeal. The discretion is vested in the trial judge, not us.

And our function, at least at the outset, is oneof review only, review for error vitiating the exercise by the judge of that discretion. The obvious aside, vitiating error is to be foundeither in misapplication of some governing principle or rule or in disregard of some critical fact or other consideration. Either that or it isto be assumed in the case of an order so obviously unjust as to invite intervention.

But in the absence of something of that sort we are notto wade in, substituting our discretion for that of the trial judge. … [39] In Siemens v Bawolin, 2002 SKCA 84 at para 118, [2002] 11 WWR 246 [Siemens], Jackson J.A. summarised the principlesthat govern the award of solicitor-client costs: ... 1. solicitor and client costs are awarded in rare and exceptional cases only; 2. solicitor and client costs are awarded in cases where the conduct of the party against whom they are sought is described variously asscandalous, outrageous or reprehensible; 3. solicitor and client costs are not generally awarded as a reaction to the conduct giving rise to the litigation, but are intended to censurebehaviour related to the litigation alone; 4. notwithstanding point 3, solicitor and client costs may be awarded in exceptional cases to provide the other party completeindemnification for costs reasonably incurred. [40] In Phillips Legal Professional Corporation v Vo, 2017 SKCA 58 at para 150, [2017] 12 WWR 779, Ottenbreit J.A. wrote that“an appellate court will be concerned to ensure that solicitor-client costs are awarded rarely”.

In Hope v Gourlay, 2015 SKCA 27 at para47, 384 DLR (4th) 235 [Hope], Richards C.J.S. observed that the “exceptional nature of solicitor-client costs is well known”. In thecompanion case to Hope, Hope v Pylypow, 2015 SKCA 26, 457 Sask R 55, the Chief Justice wrote: [48] Solicitor-client costs must not be awarded casually and, in my view, never without reasons as to why they are being awarded andan identification of the conduct which is said to warrant them. The Chambers judge should have offered a clear explanation as to hisperceived basis for awarding solicitor-client costs.

He did not do so. [41] Here, the Chambers judge stated the award of solicitor-client costs was based on the fact Ms. Olson “had neither standing norvalid justification for causing delay and expense to her brother’s widow and her children”. However, as Jackson J.A. explained inSiemens, solicitor-client costs are not generally awarded on the basis that a claim lacked merit. Chief Justice Richards put it in positiveterms in Hope when he said “solicitor-client costs are awarded because of behaviour related to the prosecution or defence of a claim.”As in Hope, in this case, there was nothing to suggest Ms.

Olson had acted improperly, let alone scandalously, outrageously orreprehensibly, in pursuing her claim of an interest in the Testator’s estate. That is, in my assessment, there was simply no basis uponwhich to award solicitor-client costs against Ms. Olson. [42] While a judge’s decision on costs must be approached with deference, I would intervene in this case to ensure that solicitor-client costs are awarded only rarely and in accordance with the principles of Siemens. I would set aside the award of solicitor-client costsand substitute an award of party-and-party costs in favour of Ms. Skarsgard.

V. conclusion [43] I would dismiss the substantive appeal against the Fiat but allow the appeal against the award of solicitor-client costs. I wouldset aside the costs award, substituting an award of party-and-party costs. Given the disposition in the substantive appeal, I would order

that Ms. Olson pay Ms. Skarsgard’s costs in the appeal and in the application to adduce fresh evidence. “Caldwell J.A.” Caldwell J.A. I concur. “Richards C.J.S.” Richards C.J.S. I concur. “Herauf J.A.” Herauf J.A.