Kot v Kot, 2021 SKCA 4

Court of Appeal for Saskatchewan Docket: CACV3344 Citation: Kot v Kot , 2021 SKCA 4 Date: 2021-01-15 Between: Ronda Erla Kot Appellant (Applicant) And Robin Grant Kot and Claire Francis Kot Respondents (Respondents) Before: Schwann, Barrington-Foote and Tholl JJ.A. Disposition: Appeal allowed Written reasons by: The Honourable Mr. Justice Barrington-Foote In concurrence: The Honourable Madam Justice Schwann The Honourable M r.

Justice Tholl On appeal from: 2018 SKQB 338 , Regina Appeal heard: June 9, 2020 Counsel: Gregory Murphy for the Appellant Robin Grant Kot and Claire Francis Kot on their own behalf Barrington-Foote J.A. I. Introduction [ 1 ] Sheridan Kot [Sheridan] passed away on September 15, 2015, leaving a will dated August 14, 2014 [Will]. The Will left his land, which made up the bulk of his estate, to his widow, Ronda Kot [Ronda], but for a lease and right of first refusal in favour of his brother, Robin Kot [Robin]. It left certain other assets to Robin and their brothers, Claire Kot [Claire], John Kot, and Blaise Kot.

Letters probate were granted December 8, 2015. Ronda, Robin and Claire were named as executors. [ 2 ] Regrettably, the administration of Sheridan’s estate has been fractious. On April 18, 2017, Ronda applied to have Robin and Claire removed as executors and for other relief relating to the administration of the estate. That application has been adjourned. On April 20, 2018, Ronda filed a second application [revocation application] for an order revoking the grant of letters probate and that the Will be proved in solemn form.

That application alleges that the document presented for probate was not Sheridan’s last will and testament because it had been destroyed by

an act of intentional destruction. On December 3, 2018, a judge of the Court of Queen’s Bench [Chambers judge] dismissed the revocation application: Kot v Kot , 2018 SKQB 338 , 42 ETR (4th) 88 [Chambers decision]. [ 3 ] Ronda has appealed the judgment. She seeks an order that the grant of letters probate be revoked and that the now-contested Will be proven in solemn form. For the reasons that follow, I have concluded that the appeal must be allowed. II. Background [ 4 ] Ronda, Robin and Claire were the signatories to the application for grant of probate which is now at issue.

Each of them also executed the required affidavit confirming that the Will attached to their affidavit was Sheridan’s original last will and testament, and that the contents of the application for the grant of probate were true. [ 5 ] Robin deposed that Sheridan showed him and Claire an unsigned copy of the Will on August 4, 2014, and explained that he intended to grant Robin a five-year lease and a right of first refusal to enable him to continue farming Sheridan’s land until Robin was in a position to purchase it. Robin confirms that he agreed to that arrangement.

Robin said that at Sheridan’s request, Robin kept the original Will until a year later, when Sheridan retrieved it and gave Robin a photocopy. [ 6 ] Ronda’s assertion that the Will is not valid is based solely on the affidavit evidence she filed in support of the revocation application. She states that Sheridan gave her a copy of the Will in 2014 and told her in the summer of 2015 that he had retrieved the original from Robin with the intention of making a new Will. She says Sheridan and Robin fought frequently that summer.

She deposed that when Sheridan retrieved the Will, he placed the original in the top drawer of his dresser and that she, concerned that it might be misplaced, made a photocopy of the original. It is her evidence that she replaced the original in Sheridan’s drawer with the photocopy and kept the original in her possession without advising Sheridan of what she had done. [ 7 ] Ronda deposes that in the fall of 2015, Sheridan burst into the living room, declaimed that he had had enough and that Robin did not deserve anything from his estate.

She states that Sheridan “stomped off to the bedroom, returned to the living room with what he thought was the original Will from his dresser drawer, and tore it into tiny pieces” before her. That destruction of a photocopy is the basis for her revocation application. [ 8 ] Ronda states that she took the original Will to a lawyer before Sheridan was buried and told him that Sheridan had torn up what he thought was the original Will, intending to revoke it and to make a new Will. She claims the lawyer advised her it is better to have

a will than not and that it was thus best to “go with the document” she had (Chambers decision at para 14). She says he did not tell her thatif Sheridan had revoked his Will, she would be entitled to his entire estate. [9] Robin’s affidavit confirms that Ronda took the original Will to the estate lawyer before the three executors met with thelawyer to discuss the contents of the Will and to retain him as the lawyer for the estate. There is no affidavit from the lawyer. DespiteRonda’s objections, the Chambers judge admitted into evidence a June 2018 email from the estate lawyer to Claire’s lawyer.

It says theestate file does not contain any indication that Ronda had advised of the intended destruction of the Will and that he did not recall such aconversation. III. The Chambers decision [10] The Chambers decision dealt with two issues; that is, Ronda’s claim that the Will had been revoked and her alternativeallegation that there were suspicious circumstances surrounding the preparation and execution of the Will. The Chambers judge decidedboth issues in favour of Robin and Claire.

Ronda did not appeal the decision as to suspicious circumstances and it is, accordingly, notnecessary to further discuss that aspect of the Chambers decision. [11] After outlining the facts, the Chambers judge dealt first with the evidentiary issue relating to the estate lawyer’s email, whichwas appended to Claire’s supplementary affidavit.

Ronda argued in Chambers that her application for proof in solemn form was anapplication for a final order and that the email should not be admitted because Rule 13-30 of The Queen’s Bench Rules provides that, onan application for a final order, affidavits “must be confined to facts that are within the personal knowledge of the person swearing oraffirming the affidavit”.

The Chambers judge held that the application was interlocutory, as a trial would be required if Ronda wassuccessful. [12] The Chambers judge turned next to the legal test to be applied on an application pursuant to Rule 16-47 to revoke a grant ofprobate and to prove the Will in solemn form pursuant to Rule 16-46. She adopted the two-part test specified in Dieno Estate v DienoEstate (1996), (SK KB), 147 Sask R 14 (QB) [Dieno]. The Chambers judge also cited Olson v Skarsgard Estate, 2018SKCA 64, 426 DLR (4th) 151 [Skarsgard], which dealt with the shifting burden of proof on an application of this kind.

Skarsgardconfirmed that an applicant who seeks to have a will proved in solemn form must establish a genuine issue to be tried by pointing toevidence that, if accepted at trial, would support the allegation that the will is invalid. If the applicant does so, the court may still refuse toorder proof in solemn form if the propounder of the will tenders uncontradicted evidence to the contrary. [13] The Chambers judge then considered whether Ronda was precluded from bringing the application as a result of the passage oftime.

The Chambers judge cited Verbonac Estate, Re, (1997), (SK KB), 159 Sask R 299 (QB) [Verbonac Estate], forthe proposition that delay itself is not fatal to such an application and is relevant only in assessing credibility and/or the bona fides of theapplication.

She noted that in Neuberger v York, 2016 ONCA 191, 129 OR (3d) 721 [Neuberger], the Ontario Court of Appeal held thatmere delay in questioning the validity of a will does not preclude such an application, as the court has a duty to the testator, to those with alegitimate interest in the estate, and to the public at large to ensure “that only wills that meet the hallmarks of validity are probated” (atpara 118).

The Chambers judge then noted what she considered to be a significant difference between the facts in Neuberger and in thiscase: [31] In Neuberger, the Court of Appeal was concerned that new evidence may arise which brings the will into question. Therefore, thedelay should not impede the court from considering the application. That did not occur here. The evidence supporting or contesting thevalidity of the Will is unchanged in the four and one half years after Sheridan’s death. [14] Finally, the Chambers judge applied the law as she understood it to the facts, including Ronda’s delay in bringing theapplication.

Her analysis is brief: [32] The evidence that supports the Will’s validity: 1. The original Will was submitted for probate; 2. No evidence supports the contention that Sheridan believed he was ripping up the original Will; 3. Ronda has acted on the Will as if it were genuine for over three years, including by disposing of most of the assets of the estate; 4. The estate lawyer does not corroborate Ronda’s contention that she saw Sheridan rip up the Will copy; and 5. Robin and Sheridan farmed together for many years.

Sheridan’s plan for Robin to enjoy a right of first refusal is consistent withSheridan’s actions, up until the day he died. [33] The evidence supporting the Will’s invalidity: 1. Ronda deposed that she saw Sheridan rip up a copy of the Will. [34] In this case, Robin and Claire are propounders of the Will. They must show that there is no genuine issue to be tried on thequestion of Sheridan revoking his Will. I am satisfied they have done so. [35] Ronda has raised some evidence that Sheridan intended to revoke the Will.

Therefore, according to Baynton J. in Dieno, theevidentiary burden reverted to the Will’s propounders (Dieno, para 35). However, the evidence that Sheridan ripped up a copy of the Willbelieving it to be the original Will is very weak. While the delay between probate and this application does not defeat Ronda’s position, itdoes suggest her claim has little credibility. There is no genuine issue for trial on the question of whether Sheridan revoked the Will.

IV. Standard of review [15] The decision of the Chambers judge as to whether to order that probate be revoked and the Will proved in solemn form was adiscretionary decision. The authority that has been most frequently cited in Saskatchewan as to the standard of review of a discretionarydecision is Rimmer v Adshead, 2002 SKCA 12 at para 58, [2002] 4 WWR 119 [Rimmer]: see, for example, Saskatchewan Crop InsuranceCorporation v McVeigh, 2018 SKCA 76 at para 26, [2019] 1 WWR 290 [McVeigh]; and Saskatoon Trading Company Limited v Hergott,Duval, Stack and Partners, 2013 SKCA 42 at para 18, 362 DLR (4th) 67.

The Rimmer test is that an appellate court will intervene only ifthe decision-maker erred in principle, misapprehended or failed to consider material evidence, failed to act judicially, or reached a decisionso clearly wrong that it would result in an injustice.

These limitations reflect the fact that, as Cameron J.A. said in Rimmer, where powersare discretionary, they “fall to be exercised as the judge vested with them thinks fit, having regard for such criteria as bear upon theirproper exercise” (at para 58). [16] As this Court noted in Strom v Saskatchewan Registered Nurses’ Association, 2020 SKCA 112 at para 60, [2020] 12 WWR396 [Strom], different language has been used by other courts to describe the standard of review for discretionary decisions. That has alsobeen true of this Court.

In Penner v Niagara (Regional Police Services Board), 2013 SCC 19, [2013] 2 SCR 125, for example, Cromwelland Karakatsanis JJ. described the standard as extending to the weight accorded to the criteria which govern the exercise of thediscretionary authority: [27] A discretionary decision of a lower court will be reversible where that court misdirected itself or came to a decision that is soclearly wrong that it amounts to an injustice: Elsom v. Elsom, (SCC), [1989] 1 S.C.R. 1367, at p. 1375.

Reversing alower court’s discretionary decision is also appropriate where the lower court gives no or insufficient weight to relevant considerations:Friends of the Oldman River Society v.

Canada (Minister of Transport), (SCC), [1992] 1 S.C.R. 3, at pp. 76-77. [17] This formulation of the standard has been frequently adopted: see, for example, the cases cited in Strom at paragraph 61, andother recent examples such as Ian Dmytriw et al v Jonah NK Odim et al, 2020 MBCA 112 at para 43; Walker v The Law Society of BritishColumbia, 2020 BCCA 178 at para 36, 38 BCLR (6th) 257; Allegro v TD Auto Finance (Canada) Inc., 2020 ABCA 175 at para 12.However, as this Court noted in Strom, “it must be kept in mind that the allocation of weight is, within the limits of the discretion granted,for the initial decision-maker.

An appellate court is not entitled to substitute its own discretion for that of the trial court or chambers judgemerely because it would have exercised the original discretion differently: Friends of the Oldman River Society v Canada (Minister ofTransport), (SCC), [1992] 1 SCR 3 at 76–77” (at para 62); see also, Rimmer at para 58.

Courts have emphasized thisprinciple in various ways, including by describing the standard of review as deferential, and by commenting that an appellate court willnot “lightly” interfere with a discretionary decision. [18] In British Columbia (Minister of Forests) v Okanagan Indian Band, 2003 SCC 71, [2003] 3 SCR 371 [Okanagan], LeBel J.offered a slightly more detailed description of the discretionary standard of review: [43] As I observed in R. v. Regan, [2002] 1 S.C.R. 297, 2002 SCC 12, however, discretionary decisions are not completely insulatedfrom review (para. 118).

An appellate court may and should intervene where it finds that the trial judge has misdirected himself as to theapplicable law or made a palpable error in his assessment of the facts. As this Court held in Pelech v.

Pelech, (SCC),[1987] 1 S.C.R. 801, at p. 814-15, the criteria for the exercise of a judicial discretion are legal criteria, and their definition as well as afailure to apply them or a misapplication of them raise questions of law which are subject to appellate review. [19] This formulation of the standard of review has also been frequently applied: see, for example, Prince Albert Right to LifeAssociation v Prince Albert (City), 2020 SKCA 96 at para 88, [2020] 10 WWR 603; Naber v John Deere Financial Inc., 2020 SKCA 94at para 19; Strohmaier v K.S., 2019 BCCA 388 at para 21, 30 BCLR (6th) 289; and Greengen Holdings Ltd. v British Columbia (Ministryof Forests, Lands and Natural Resource Operations), 2018 BCCA 214 at para 25, 422 DLR (4th) 672. [20] In

summary, these cases confirm that appellate intervention in a discretionary decision is appropriate where the judge made apalpable and overriding error in their assessment of the facts, including as a result of misapprehending or failing to consider materialevidence. Appellate intervention is also appropriate where the judge failed to correctly identify the legal criteria which governed theexercise of their discretion or misapplied those criteria, thereby committing an error of law. Such errors may include a failure to give anyor sufficient weight to a relevant consideration. V.

Analysis [21] The Chambers judge was correct in adopting the test specified in Dieno, which has been applied and explained by this Court:Otto v Kapacila Estate, 2010 SKCA 85 at paras 22–26, [2010] 9 WWR 575 [Otto], and Ritchie v Royal Trust Corporation of Canada,2007 SKCA 64 at paras 5–7, 293 Sask R 238 [Ritchie].

In Dieno, which concerned a challenge to testamentary capacity, Baynton J.summarized the test as follows: [31] … If the applicant attacking the will adduces or points to some evidence which if accepted at trial would tend to negativetestamentary capacity (such as suspicious circumstances), then the presumption of testamentary capacity is no longer operative and thepropounder of the will reassumes the evidentiary burden of proving testamentary capacity.

The standard of proof is on a balance ofprobabilities but the evidence tendered will be scrutinized in accordance with the gravity of the suspicion that the deceased lackedtestamentary capacity.

If the proponents of the will do not by uncontradicted evidence satisfactorily answer the challenge made by theapplicants and positively affirm testamentary capacity, then an order should be made that the will be proven in solemn form. … [32] If on the other hand the applicant fails to adduce or point to some evidence which if accepted at trial would tend to negativetestamentary capacity, or if the propounder of the will by uncontradicted evidence successfully answers the challenge and affirmspositively the testamentary capacity of its maker, then the application should be dismissed and the grant of probate of the will remains infull force and effect.

A final disposition of the application is a realistic option for the chambers judge in most cases in that usually it is not

the evidence itself which is in dispute but rather the inferences of fact to be drawn from the evidence adduced. But where contradictory evidence is adduced, especially where findings of credibility will have to be made, the only realistic option for the chambers judge is to direct a trial. ... (Emphasis added) [ 22 ] In Ritchie , Gerwing J.A., writing for the majority, confirmed that the issue to be determined by the Chambers judge is whether there is “a genuine issue to be tried” (at para 20).

She rejected the notion that the threshold that must be met to demonstrate that there is such an issue is “reasonably low”, emphasizing the competing considerations at play: [6] … If a real question, based on probative evidence going to issues material to capacity, is raised, the will should be proved in solemn form. However it is not every suggestion of irregularity or evidence on peripheral points which will lead a chamber judge to conclude that there is a sufficient issue for proof in solemn form.

Proof in solemn form is a lengthy and expensive process and should not be entered into without sufficient foundation. Otherwise a substantial portion of the estate is at risk of being frittered away in pointless litigation. [ 23 ] On a related note, Baynton J. emphasized in Dieno that, although the Chambers judge has a limited role, they must consider both evidence which favours granting the application and that which does not when determining whether there is a genuine issue for trial.

As he said, where the issue relates to testamentary capacity, “[t]here is more involved than simply ascertaining if there is some evidence adduced by the applicant that tends to negate capacity. Evidence adduced by the proponents of the will must also be considered” (at para 27). That said, Gerwing J.A. – despite having rejected the suggestion that the test sets a “low threshold” – held that “the second portion of the Dieno test clearly envisages a situation where no one can say a reasonable issue or question exists to be tried” ( Ritchie at para 7 ).

See, to the same effect, Otto at para 24 . [ 24 ] These comments reflect the tension between the requirement to consider the evidence that weighs both for and against the applicant, and the limited role of a judge hearing such an application, which is a reflection of the fact that the purpose of the enquiry is limited to determining whether there is a genuine issue to be tried.

To reiterate, the balance to be struck is captured by the following statement in Bachman v Scheidt Estate , 2016 SKCA 150 , [2017] 2 WWR 301: [16] … Although the Chambers judge may consider evidence from both parties, 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. [ 25 ] On this appeal, Ronda argues that the Chambers judge did not respect this balance.

She submits that the Chambers judge improperly weighed the evidence and made findings of credibility. She also says that the Chambers judge erred by admitting and relying on the email from estate counsel. [ 26 ] In response, Robin emphasizes that the Chambers judge identified the correct test. In his view, she did not weigh the evidence but, rather, scrutinized it to determine whether there was probative evidence to support Ronda’s claim that a copy of the Will had been destroyed. He submits that there was no probative evidence. Claire’s submissions are substantially to the same effect as Robin’s.

Further, both Robin and Claire note that Ronda had the opportunity to file further evidence but failed to do so. [ 27 ] I have concluded that I must agree with Ronda; that is, with the greatest respect, it is my view that the Chambers judge went beyond the limited review of the evidence required to determine whether there was a genuine issue for trial. Let me explain. [ 28 ] The Chambers judge recognized that the delay that had occurred between probate and the revocation application did not preclude an application.

However, she also cited Verbonac Estate as authority for the proposition that delay could be relevant for the purpose of assessing credibility. She then explicitly made just such an assessment, finding that “the delay between probate and this application … does suggest her claim has little credibility” (at para 35). It is apparent that the passage of time after the Will was probated weighed heavily in that assessment. [ 29 ] Further, the Chambers judge reached this conclusion on the basis of the evidence referred to at paragraph 32 of the Chambers decision, which is reproduced in full above.

She found that evidence had met the burden on Robin and Claire as the propounders of the Will. As is noted above, that burden would arise only if the Chambers judge also concluded that Ronda had led evidence that would, if accepted at trial, tend to prove that Sheridan had destroyed what he believed to be the original Will with the intention of revoking it.

Expressed in the terms of the Dieno test, that means that the Chambers judge concluded that there was uncontradicted evidence that responded to Ronda’s evidence and affirmed positively that Sheridan did not rip up a copy of his Will that he believed to be the original Will. [ 30 ] In my opinion, the evidence referred to in paragraph 32 did not meet that standard. I note the following considerations: (

a) The Chambers judge refers to the fact that the Will was submitted for probate and that Ronda acted on the basis that the Will was genuine for three years. Ronda’s affidavit explains these facts, as it is her evidence that she discussed this issue with the estate lawyer and proceeded as she did on the basis of his advice. (

b) The Chambers judge notes that there was no evidence that supports the “contention” that Sheridan believed he was ripping up the original Will. That conclusion could be read as a palpable error, as Ronda’s affidavit is not a “contention”, but evidence of the fact Sheridan ripped up a copy of the Will. However, read in the context of the Chambers decision as a whole, I understand this statement in paragraph 32 – like the statement that the estate lawyer did not corroborate Ronda’s evidence – as relating to a lack of corroboration. The fact the Chambers judge was concerned with the lack of corroboration demonstrates that she was weighing the evidence. (

c) The Chambers judge notes that Robin and Sheridan farmed together right up until Sheridan’s death. Ronda’s affidavit also offers an explanation of that fact, being the evidence of a fractious and deteriorating relationship between Robin and Sheridan, ending in an emotional outburst by Sheridan.

[ 31 ] For these reasons, none of the evidence described in paragraph 32 is uncontradicted or, as the Court put the matter in Otto , “unconditional” (at para 27 ). In the result, while the Chambers judge adopted the criteria that govern the exercise of her discretion, she improperly proceeded to weigh the evidence and make a finding of credibility.

By doing so, she misapplied the applicable criteria and committed an error of law that calls for intervention by this Court. [ 32 ] I would finally note that Ronda has presented evidence that, if believed, would prove that Sheridan destroyed a photocopy of his Will with the intention of revoking it. All parties proceeded on the assumption that such

an act could constitute revocation, presumably in accordance with s. 16 (

d) of The Wills Act, 1996 , SS 1996, c W-14.1 . As such, this question of mixed fact and law was not raised before the Chambers judge or by the parties. Although this Court called for written submissions relating to this issue at the close of the appeal hearing, those submissions were very limited. Accordingly, the issue was not fully argued in this Court. In the circumstances, it would be preferable if this issue is considered in the context of the findings of fact that will be made by the trial judge. VI. Conclusion [ 33 ] For these reasons, I have concluded that the appeal must be allowed and would order as follows: (

a) The Will must be proven in solemn form at a trial to determine the following issue: (

i) Did Sheridan Kot revoke his last will and testament dated August 4, 2014, by the destruction of a photocopy of the Will? (

b) Ronda Erla Kot shall be the plaintiff at the trial and Robin Grant Kot and Claire Francis Kot shall be the defendants and the proponents of the Will; (

c) The issue of revocation of the grant of probate will be left to the trial judge. (See Dieno at para 31 ; Wilson v Staples , 2018 SKQB 245 at para 95 , 40 ETR (4th) 198, (reversed on appeal, Adams Estate v Wilson , 2020 SKCA 38 , 57 ETR (4th) 1, but not on this point); and (

d) Until further order or until the matter has been resolved, nothing shall be done under the existing grant of probate without the unanimous written consent of all of the executors or leave of the Court of Queen’s Bench. [ 34 ] There shall be no order as to costs. “Barrington-Foote J.A.” Barrington-Foote J.A. I concur. “Schwann J.A.” Schwann J.A. I concur. “Tholl J.A.” Tholl J.A.