McStay v Berta Estate, 2021 SKCA 51

Court of Appeal for Saskatchewan Docket: CACV3629 Citation: McStay v Berta Estate , 2021 SKCA 51 Date: 2021-04-01 Between: Linda McStay Appellant (Applicant) And Estate of Mihaly Berta, Greg Lipoth in his capacity as personal representative of the Estate of Mihaly Berta, Lucke Law, and Noble Johnston Law Office Respondents (Respondents) Before: Jackson, Barrington-Foote and Tholl JJ.A. Disposition: Appeal allowed Written reasons by: The Honourable Mr. Justice Tholl In concurrence: The Honourable Madam Justice Jackson The Honourable Mr.

Justice Barrington-Foote On appeal from: QBG 332 of 2019, Regina Appeal heard: January 18, 2021 Counsel: David Couture for the Appellant Jordan Hardy, Q.C., and Turner Ralston for the Respondents Tholl J.A. I. Introduction [ 1 ] Linda McStay applied to the Court of Queen’s Bench seeking an order requiring her father’s will, dated May 24, 2018, to be proven in solemn form. She asserted that her father lacked testamentary capacity and was unduly influenced by the executor. Her application was dismissed: McStay v Berta Estate (3 April 2020) Regina, QBG 332 of 2019 (Sask) [ Chambers Decision ]. Ms.

McStay contends the Chambers judge misapplied the relevant test, inappropriately weighed conflicting affidavit evidence and failed to take account of other evidence. [ 2 ] For the reasons that follow, the appeal must be allowed. II. Background [ 3 ] Mihaly Berta was born in Hungary in 1957. Ms. McStay is the daughter of his first wife and he adopted her when she was seven or eight years old. The family immigrated to Canada in 1989, where they lived together until Mr. Berta and Ms. McStay’s mother divorced in 1997. Mr. Berta had no other children.

Prior wills, including one executed in December of 2010, had named Ms. McStay as his executor and sole beneficiary. Mr. Berta and Ms. McStay had become estranged in 2013 and had not spoken in many years prior to the events in question. Ms. McStay has two children of her own, now aged six and eight. Mr. Berta was divorced as of the date of his death and had no dependents. [ 4 ] In 2017, Mr. Berta was diagnosed with terminal cancer and decided that, when the time came, he wished to use medical assistance in dying [MAID] to end his life in a dignified manner.

He gave initial instructions to his solicitor, Darryl Lucke, for the drafting of a new will in August of 2017, but needed more time to consider the issues. Mr. Lucke had been Mr. Berta’s solicitor since 2011 and had worked on several matters for him, including the sale of his business in early 2018. Mr. Lucke met with Mr. Berta at the Pasqua Hospital in April of 2018 and received additional instructions regarding the will, including a proposed distribution, but Mr. Berta had not yet come to a final conclusion with regard to the bequests he wished to make. [ 5 ] In May of 2018, Mr. Berta reconciled with Ms.

McStay and they spent considerable time together in the weeks prior to his death. [ 6 ] On May 22, 2018, Mr. Berta spoke with Mr. Lucke on the telephone and gave him further instructions regarding his will. As a result of those instructions, Mr.

Lucke drafted a new will appointing Gregory Lipoth as his executor and setting out the following bequests: (a) $25,000 to a friend who had provided care for him in his final days; (b) 2.5% of his estate, to a maximum of $10,000, to another friend; (c) 2.5% of his estate, to a maximum of $10,000, to another friend; (d) 22.5% of his estate, to a maximum of $100,000, to his sister-in-law in Hungary, with $50,000 to be paid out immediately and the remainder at $5,000 per year;

(e) 22.5% of his estate, to a maximum of $100,000, to his brother in Hungary, with $50,000 to be paid out immediately and theremainder at $5,000 per year; (f) 22.5% of his estate, to a maximum of $100,000, to Ms. McStay, in payments of $2,000 per month for 12 months, with theremaining $76,000 to be placed in a Registered Education Savings Plan for her children; and (g) 27.5% of his estate to Mr. Lipoth, for the benefit of Mr. Lipoth’s children’s education. [7] Mr. Lipoth had known Mr. Berta for 30 years and was Mr. Berta’s financial advisor. His evidence depicted him as a veryclose friend to Mr.

Berta, whereas Ms. McStay’s evidence relegated him strictly to the role of financial advisor. [8] Mr. Berta was scheduled for MAID to occur on May 25, 2018, although it was unexpectedly postponed to May 28, 2018, onshort notice. On the morning of May 24, 2018, a doctor at the Pasqua Hospital assessed Mr. Berta’s capacity for MAID and concludedthat there were no concerns about his capacity for that purpose. [9] Mr. Lucke attended to Mr. Berta’s bedside in the palliative care unit of the Pasqua Hospital for the signing of the will in theearly afternoon on May 24, 2018. He averred that after Mr.

Berta read the will, Mr. Lucke explained the provisions and confirmed thatthey were in accordance with his wishes. Mr. Berta then executed the will. Mr. Lucke’s legal assistant had attended the hospital with himand the two of them witnessed the will. [10] Mr. Berta died on May 28, 2018, at the age of 61. [11] On January 29, 2019, Ms. McStay filed an originating application with the Court of Queen’s Bench seeking to have the May24, 2018, will proven in solemn form, pursuant to Rule 16-46 of The Queen’s Bench Rules. She sought a trial on the issues of whether, atthe time of the execution of this will, Mr.

Berta had testamentary capacity or was subjected to undue influence. III. Chambers decision [12] In support of her application, Ms. McStay filed three affidavits from herself along with one from her mother. The executor,Mr. Lipoth, filed three of his own affidavits; he also filed two affidavits from Ms. McStay’s ex-husband, one from her ex-father-in-law,one from a friend of Mr. Berta, two from Mr. Lucke and one from Mr. Lucke’s legal assistant. [13] The Chambers judge provided a brief recitation of the background and addressed preliminary matters regarding theadmissibility of affidavits.

She then began her analysis by setting out the following rules from The Queen’s Bench Rules, although Rule16-47 appeared to play no role in her decision because letters probate had not been granted: Applications to prove will in solemn form 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.

Revoking a grant 16-47(1) A person interested in an estate who seeks to revoke a grant may apply at the judicial centre at which the grant was made, or towhich the estate has been transferred, by notice of application to be served on the personal representative to show cause why the grantshould not be revoked.

(2) On an application pursuant to subrule (1), a judge may order that pending the disposition of the application nothing be done under thegrant without leave. [14] The Chambers judge noted there was considerable case law regarding proof of a will in solemn form, testamentary capacity andundue influence.

She referenced Dieno Estate v Dieno Estate (1996), (SK KB), 147 Sask R 14 [Dieno], and then set outthe two-stage process for proving a will in solemn form: a Chambers application to determine if there is sufficient merit to the challenge towarrant a trial and, if the applicant is successful, a trial to determine the issue itself. Relying on Ritchie v Royal Trust Corporation, 2007SKCA 64, 293 Sask R 238, leave to appeal to the SCC refused, [2007] 3 SCR xiv [Ritchie], she noted that the application only proceeds toa trial when there is a genuine issue to be tried.

With regard to testamentary capacity, the Chambers judge referred to Otto v KapacilaEstate, 2010 SKCA 85, [2010] 9 WWR 575 [Kapacila]. For undue influence, she relied on Lamontagne Estate, Re (1996), (SK KB), 150 Sask R 85 (QB), and Culbert Estate, Re, 2006 SKQB 454, [2007] 1 WWR 121. [15] The Chambers judge extensively reviewed the evidence relied upon by Ms. McStay that tended to negate testamentary capacityand the evidence relied upon by the executor that affirmed testamentary capacity. She then reviewed the evidence regarding suspiciouscircumstances for the purposes of considering undue influence.

After doing so, she rendered the following decision: [34] The evidence is overwhelming that the testator had knowledge and approved of the will and that the testator had testamentarycapacity. In addition, I find no suspicious circumstances. [35] The evidence establishes an earlier will from 2013 naming the applicant as executor and sole beneficiary. The notes taken by thelawyer drawing up the will explain the reason for a “basic will”. Thereafter, the testator and applicant were estranged. Beginning in thesummer of 2017, the testator planned a new will, and settled on a new executor.

The Executor was someone he had known for decades.He discussed his choice with his close friend, Alex Gedo, and with his lawyer. The testator was uncertain about the bequests and did notfinally make any determinations for another nine months. When he did make his final determinations, he was facing death. He was in painand on medication, but there is no evidence he did not understand what he was doing.

On the contrary, the evidence shows the testatoracted decisively and carefully. [36] The bequests were consistent with a person taking care in determining “the nature and extent of his property, [and] the persons who

are the natural objects of his bounty” ( Kapacila Estate , para 33 ). The applicant is the testator’s daughter. She would expect to benefit, notwithstanding their estrangement. In fact, she did benefit. [37] The Will also demonstrated an “orderly desire as to the disposition of [the testator’s] property” ( Kapacila Estate , para 33 ). Everyone mentioned in the Will had a strong connection to the testator. The bequests went to four friends – three of whom the applicant does not object to – his brother, his sister-in-law and his daughter.

The errors in the will were minor and do not raise a concern the testator did not know what he was signing. [38] The applicant argued the bequests in the Will were unclear, demonstrating the testator’s confusion. I do not agree. The bequests are capable of determination. I find the testator had testamentary capacity. [39] In Culbert Estate , at para 137, Ball J. describes undue influence falling within two categories, express and presumptive. Express undue influence occurs when “the gift was the result of influence expressly used by the donee for the purpose”.

Here, the evidence suggested the Executor tried to influence the testator not to give him any benefit under the Will. [40] Presumptive undue influence is established “where the relations between the donor and donee have at or shortly before the execution of the gift been such as to raise a presumption that the donee had influence over the donor” ( Culbert Estate at para 137). As stated by the Lawyer, the testator was “independent and strong-minded”. His doctors described him similarly. There is no suggestion the testator’s will was overborne by the Executor or anyone else.

I do not find suspicious circumstances in the making of the Will. [41] The application to prove the Will in solemn form is denied. There is no order of costs. [ 16 ] Ms. McStay appealed the whole of the judgment. IV. Points in issue [ 17 ] The following issues arise: (

a) Did the Chambers judge err in her application of the first part of the test set out in Dieno and Ritchie by weighing conflicting evidence and making findings of credibility? (

b) Did the Chambers judge err by not addressing whether all of the evidence, if accepted at trial, would tend to suggest Mr. Berta did not have testamentary capacity or did not have knowledge and approval of his will? (

c) Did the Chambers judge err by failing to consider there are differences between medical capacity for MAID and testamentary capacity? V. Analysis A. Application of part one of the test from Dieno and Ritchie [ 18 ] The parties agree that the Chambers judge identified the correct test but disagree on her application of that test. Ms. McStay submits the Chambers judge erred by impermissibly making findings of fact in the face of controverted evidence. She argues that it is a reversible error to weigh conflicting evidence at the first stage of the two-stage process. Ms.

McStay contends this error applied to both issues for which she wished to have a trial: testamentary capacity and undue influence. [ 19 ] The executor characterizes the application as an ill-fated attempt by a disappointed beneficiary to receive a larger share of the estate contrary to the clear wishes of the testator.

He asserts the Chambers judge property applied the correct test and there was no evidence that raised a hint of a concern about the validity of the will. [ 20 ] The standard of review applicable to this matter was summarized by Barrington-Foote J.A. in Kot v Kot , 2021 SKCA 4 , 63 ETR (4th) 161 [ Kot ]: [20] In

summary, these cases confirm that appellate intervention in a discretionary decision is appropriate where the judge made a palpable and overriding error in their assessment of the facts, including as a result of misapprehending or failing to consider material evidence. Appellate intervention is also appropriate where the judge failed to correctly identify the legal criteria which governed the exercise of their discretion or misapplied those criteria, thereby committing an error of law.

Such errors may include a failure to give any or sufficient weight to a relevant consideration. [ 21 ] This Court has also recently clarified that the standard of review for findings of fact made on the basis of affidavit evidence is that of palpable and overriding error: City of Yorkton v Mi-Sask Industries Ltd ., 2021 SKCA 43 at para 25 . [ 22 ] The process to be utilized when a person applies to have a will proven in solemn form is not in dispute.

The current formulation of the procedure and the test was set out by Baynton J. in Dieno : [27] An application in Saskatchewan to challenge a will on the basis of testamentary incapacity potentially involves two levels of hearings. The first is a Chambers hearing to determine if there is sufficient merit in the challenge to warrant a trial. The second (if the applicant is successful) is a trial hearing to determine the issue itself. The issue before the court at either level is the same.

The main difference is the scope of the hearing, the ability to determine credibility respecting contradictory evidence, and the relief that is granted. The Chambers judge decides if there will be a trial, the trial judge decides if the testator had testamentary capacity. In order to decide whether a trial is warranted, the Chambers judge must summarily consider the evidence that tends to negate testamentary capacity along with the evidence

which tends to affirm testamentary capacity. There is more involved than simply ascertaining if there is some evidence adduced by theapplicant that tends to negate capacity. Evidence adduced by the proponents of the will must also be considered. … [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 notthe evidence itself which is in dispute but rather the inferences of fact to be drawn from the evidence adduced. But where contradictoryevidence is adduced, especially where findings of credibility will have to be made, the only realistic option for the Chambers judge is todirect a trial.

The evidence adduced and the submissions made at the Chambers hearing however, will expedite the trial to be ordered bynarrowing the focus of the issues in dispute. (Emphasis added) [23] The process and test were discussed by this Court in Ritchie, where Gerwing J.A. described the exercise in the following terms: [6] … If a real question, based on probative evidence going to issues material to capacity, is raised, the will should be proved in solemnform.

However it is not every suggestion of irregularity or evidence on peripheral points which will lead a Chamber judge to conclude thatthere is a sufficient issue for proof in solemn form. Proof in solemn form is a lengthy and expensive process and should not be entered intowithout sufficient foundation. Otherwise a substantial portion of the estate is at risk of being frittered away in pointless litigation. [7] Having said that, the commentary on the law in the balance of the judgment in Dieno is still material.

Whatever one may say about thestandard there proposed, or the need to use it, the second portion of the Dieno test clearly envisages a situation where no one can say areasonable issue or question exists to be tried. [24] This Court applied Dieno and Ritchie in Kapacila. In that case, Klebuc C.J.S. discussed the Chambers judge’s task as follows: [22] The hearing conducted to determine whether a challenged will should be proven in solemn form is often called the “first hearing” andthe trial following the order requiring a will to be proven in solemn form is often called the “second hearing”.

The procedure and legal testapplicable at the first hearing was articulated by this Court in Royal Trust Corp. of Canada v. Ritchie, 2007 SKCA 64, 293 Sask. R. 238,leave to appeal to S.C.C. refused [2007] 3 S.C.R. xiv, and partly described by Baynton J. in his seminal decision in Dieno Estate v. DienoEstate, (SK KB), [1996] 10 W.W.R. 375, 147 Sask. R. 14. … [24] The genuine interest test in Ritchie and the one in Quaintance v. Quaintance Estate, 2006 ABCA 47, 56 Alta. L.R. (4th) 6, arevirtually the same.

Both decisions contemplate a second hearing only if the challenger of a will presents a genuine issue supported by anevidentiary foundation. As stated in Quaintance, “[i]f there is no merit to the contention [raised by the challenger], and the issues arecapable of only one resolution, it is open to the court to conclude that a genuine issue for trial has not been raised” (at para. 19). In Ritchie,Gerwing J.A. stated there is no need for a trial “where no one can say a reasonable issue or question exists to be tried” (at para. 7). [25] More recently, in Kot, this Court applied this same test.

After canvassing Dieno, Ritchie and Kapacila, Barrington-Foote J.A.described the narrow role of a judge at the first hearing: [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 todetermining whether there is a genuine issue to be tried.

To reiterate, the balance to be struck is captured by the following statement inBachman v Scheidt, 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 andmake findings of credibility.

If contradictory evidence is adduced, especially where findings of credibility will have to be made, the onlyoption for the Chambers judge is to direct a trial. … [31] … In the result, while the Chambers judge adopted the criteria that govern the exercise of her discretion, she improperly proceeded toweigh the evidence and make a finding of credibility.

By doing so, she misapplied the applicable criteria and committed an error of lawthat calls for intervention by this Court. [26] If there is a genuine issue to be tried, the matter must be referred to trial. [27] The Chambers judge identified and applied the correct test from Dieno, Ritchie and Kapacila. However, it is my view that sheerred in the application of the test by weighing the evidence and making findings of credibility on conflicting affidavit evidence. There arenumerous aspects of the evidence that were controverted on material points.

As I will illustrate below, these conflicts were significant and,when the test is correctly applied, the only realistic option was a trial.

1. Conflicts in the evidence [ 28 ] I will identify the major contradictions in the evidence; but, given that the matter will be the subject of a trial, I will be circumspect in my comments and not examine all of the conflicts. Some of the conflicting evidence overlaps and applies to multiple topics, so it is best to not attempt to compartmentalize it to any great degree. [ 29 ] The events of May 24, 2018, were a focal point for much of the affidavit evidence. Ms. McStay visited Mr. Berta in the hospital twice on that day, once around noon and again later in the afternoon.

She averred that he was heavily medicated and his behaviour was not consistent with his typical behaviour. She observed that he was sedated, not alert and kept dozing off. It was difficult to have a conversation with him. The medical records indicate Mr. Berta was in a lot of pain and received fentanyl at 12:30 p.m. on that day and more pain medication at 3:20 p.m. [ 30 ] Ms. McStay’s mother remained friendly with Mr. Berta after their divorce and they saw each other often. They frequently went for coffee and talked on the phone about his life, his family and his friends. She took Ms. McStay’s children to see Mr.

Berta at least once a month during the period that Mr. Berta and Ms. McStay were estranged and she visited him in the hospital almost every day. She averred that Mr. Berta told her, in May of 2018, that he was in a lot of pain and he could not think straight. She observed Mr. Berta to be overwhelmed and not himself when she visited him in the hospital in May of 2018. [ 31 ] Mr. Berta had a medical capacity assessment done on the morning of May 24, 2018, for the purposes of MAID.

The doctor who conducted the assessment noted there were no capacity concerns and that he was fully alert and oriented and understood the MAID process. Mr. Berta was having hallucinations earlier in the month, but they had alleviated. On May 28, 2018, a different medical doctor wrote that Mr. Berta was very clear-minded and competent and met all of the criteria for MAID. [ 32 ] Mr. Lucke averred that he received instructions regarding the will from Mr. Berta on three occasions prior to it being executed, twice by phone and once in person. He knew Mr. Berta from prior matters with which he had assisted him. Mr.

Lucke described Mr. Berta as having a cautious and thoughtful approach to his will. Mr. Berta told him he had carefully calculated the percentages so that it would result in no residue. He says that Mr. Berta explained he left the bequest for Mr. Lipoth because his children were academically inclined and that Mr. Berta was adamant about providing funds for their education. [ 33 ] The will was executed at the Pasqua Hospital around 1:00 p.m. on May 24, 2018. Mr. Lucke averred that Mr. Berta read the will and then Mr. Lucke went through it with him and ascertained that it reflected Mr. Berta’s wishes. Mr.

Lucke averred that only he, Mr. Berta, and his legal assistant were present in the hospital room during the meeting. Mr. Lucke had no concerns about undue influence or Mr. Berta’s mental capacity. His behaviour and mannerisms on May 24th were consistent with his previous dealings with Mr. Lucke and Mr. Berta was alert and engaged in the conversation. In his affidavit, Mr. Lucke provided other details supporting his conclusion that there were no capacity concerns. The affidavit from the legal assistant who attended the hospital supports Mr. Lucke’s observations and description of the meeting. [ 34 ] Ms.

McStay questioned the evidence of Mr. Lucke regarding what occurred in the hospital room on May 24, 2018, by averring that Mr. Berta’s first language was Hungarian and he could not read English very well and could not write in English. She observed this to be a barrier for him throughout his life and that it continued to be an issue in the hospital in May of 2018 when she would have to translate things for the nurses and doctors. She noted that Mr. Berta was frustrated by his inability to fully communicate with them. In her affidavit, Ms. McStay’s mother confirmed Mr.

Berta’s difficulty with the English language and gave an example where he asked her to read him a Facebook message on May 26, 2018, because he could not read it. Ms. McStay pointed to errors in the will, such as Hungary being spelled incorrectly and Mr. Berta’s sister-in-law being referred to by the wrong name as indicative that he could not have properly read the will and was not knowledgeable of its contents. Mr. Lipoth admitted that Mr. Berta had trouble writing in English but believed Mr. Berta could read that language. [ 35 ] Mr.

Berta’s long term neighbour, friend and confidante had no concerns about his mental functioning or awareness in the days prior to his death. [ 36 ] The evidence regarding Mr. Lipoth’s role in Mr. Berta’s life was highly controverted. Mr. Lipoth averred that, while he was Mr. Berta’s financial advisor, they had been close friends for nearly 30 years. His mother had been Ms. McStay’s babysitter in 1989. He described numerous interactions between him and Mr. Berta over the years which were indicative of such a friendship. He averred that Mr.

Berta had known and interacted with his children since they were born, and provided details of that interaction. They spent Christmas of 2017 together. Mr. Berta’s long-term neighbour averred that he met Mr. Lipoth at a dinner party hosted by Mr. Berta, which Mr. Lipoth, his wife and their four children attended. It was clear to him that Mr. Berta had a good relationship with Mr. Lipoth’s children. In his view, Mr. Berta and Mr. Lipoth were friends. [ 37 ] Mr. Lucke averred that Mr. Berta had told him he wanted Mr. Lipoth to be his executor because Mr. Lipoth had been a constant person in his life and Mr.

Berta trusted him. He reiterated that choice in all of their meetings. He said that Mr. Berta told him on many occasions that Mr. Lipoth did not want Mr. Berta to leave anything to Mr. Lipoth in his will. [ 38 ] Mr. Berta’s long-time neighbour averred that he had many discussions with Mr. Berta about his estate after he was diagnosed with cancer. Mr. Berta discussed leaving money for the education of Ms. McStay’s children and Mr. Lipoth’s children because they were the only children that he knew well. He averred that Mr. Berta told him numerous times he was going to name Mr. Lipoth as his executor.

The evidence that pointed to Mr. Lipoth and Mr. Berta being long-time friends was also supported by the affidavits of Ms. McStay’s ex- husband and ex-father-in-law, who averred that Mr. Berta introduced Mr. Lipoth to them as his long-time friend and financial planner. [ 39 ] Ms. McStay’s evidence described a much different relationship between Mr. Berta and Mr. Lipoth. In her view, he was her father’s financial planner and not his friend. Ms. McStay averred that, in May of 2018, Mr. Berta told her that he did not intend to benefit Mr.

Lipoth because he had already given him $25,000 in advance to compensate him for being his executor. Mr. Lipoth denied that he received any money as a gift or as an executor’s fee. Ms. McStay further averred that Mr. Berta told her that he had lent Mr. Lipoth money to start his business and he had never repaid him. In his affidavit, Mr. Lipoth denied that he received any money from Mr. Berta to start his business.

[ 40 ] Ms. McStay averred that Mr. Berta had never met Mr. Lipoth’s children and that he told her he did not have any relationship with them. She says she asked Mr. Berta about Mr. Lipoth’s children in May of 2018 and he told her he did not know much about them and did not even know their names or ages. Mr. Lipoth’s children did not attend the funeral. [ 41 ] Ms. McStay averred that she spoke to Mr. Lipoth on June 4, 2018, and he told her that he and Mr. Berta had a falling out and did not speak for many years. She averred that Mr. Lipoth told her that, when he found out Mr.

Berta had cancer, he decided to make amends. In his affidavit, Mr. Lipoth agreed that he told Ms. McStay that he had also made Mr. Berta angry from time to time and they would not speak for a period of time, but they would always pick up where they left off. He stated that he said these things to try to comfort Ms. McStay with regard to her lost time with Mr. Berta. He denied that he stated he made amends after Mr. Berta was diagnosed with cancer. [ 42 ] Ms. McStay’s mother averred she and Mr. Berta saw Mr. Lipoth only once in the seven years they lived together in the 1990s. She further averred that Mr.

Berta told her that he only saw Mr. Lipoth when he needed financial advice and at no point did Mr. Berta tell her that he was his friend. He only told her that he was his financial advisor. She says that Mr. Berta never talked about Mr. Lipoth’s children. [ 43 ] In his affidavits, Mr. Lipoth stated that he had a very limited role in relation to the preparation of Mr. Berta’s will. He said he introduced Mr. Berta to Mr. Lucke a decade ago; Mr. Berta had needed a lawyer. At some point after that initial referral, Mr. Lipoth had contacted Mr. Lucke one additional time to ask him to represent Mr.

Berta, but took no other

part in any interactions between lawyer and client. He averred that Mr. Berta became very concerned about his will when his cancer became terminal and he had discussed the estate with him, but not the details of the will. He told Mr. Berta to not leave him a bequest in his will when Mr. Berta raised the idea with him in January or February of 2018, and there were no further discussions about the will after that. Like Mr. Lucke, Mr. Lipoth described Mr. Berta as very cautious about his financial affairs. He had no concerns about Mr. Berta’s mental capacity right up to the end and denied he tried to influence Mr.

Berta in his favour. [ 44 ] To the contrary, Ms. McStay averred that Mr. Lipoth himself told her that he had many in-depth conversations with Mr. Berta about the will and the designated percentages and that Mr. Berta did not understand the percentages versus the dollar amounts. Mr. Lipoth denied this conversation and averred that he did not have any conversations with Mr. Berta about the specifics of the will. [ 45 ] In her affidavit, Ms. McStay’s mother averred Mr. Lipoth came to visit Mr. Berta in the hospital on May 23, 2018, and had a long conversation with him about his will. Mr.

Lipoth wrote a lot of things down and stayed until 11:00 p.m. She further says that Mr. Berta told her on May 25, 2018, that Mr. Lipoth was present with Mr. Lucke when he signed his will on the previous day. Mr. Lipoth denied that he ever attended any meetings between Mr. Lucke and Mr. Berta. [ 46 ] With regard to the bequests in the will to Ms. McStay and her children, as mentioned, the previous wills named her as the sole beneficiary and executor. The will signed on May 24, 2018, was significantly different than the prior wills. Ms. McStay averred that Mr.

Berta told her many times in his final days that her children would be taken care of. He also told her that he was giving some money to his brother and $25,000 to the friend who provided care for him, but that the rest would go to her and her children. Ms. McStay said that Mr. Berta never told her that he had changed the will. [ 47 ] Mr. Lipoth averred that Mr. Berta discussed his estate plans many times with him and, when he did, he expressed anger at Ms. McStay and was concerned about leaving a large amount of money to her. However, it was clear to Mr. Lipoth that Mr. Berta wanted to ensure Ms.

McStay’s children received a good education. Mr. Lucke averred that he and Mr. Berta discussed what Mr. Berta was leaving to Ms. McStay and Mr. Berta told him that he wanted to leave the majority of the cash to her children because he did not trust her with large sums of money and had concerns about her lifestyle. Ms. McStay says he would not have been aware of her lifestyle because they had not seen each other in many years. [ 48 ] Ms. McStay’s mother averred that Mr. Berta never told her that he was concerned about Ms. McStay’s lifestyle or that their falling out was about money. On April 26, 2018, Mr.

Berta sent her a Facebook message, in Hungarian, telling her that he loved Ms. McStay with all of his heart. She said that he told her he was leaving lots of money to Ms. McStay’s children for their education and never mentioned Mr. Lipoth’s children. [ 49 ] Ms. McStay’s ex-husband averred that in May of 2018, Mr. Berta told him he was leaving money to the children for their education and asked him to make sure that Ms. McStay could not get her hands on it. He also took the children to visit with Mr. Berta. 2.

Conclusion on the effect of the conflicting evidence [ 50 ] As can be seen from the above examination of the evidence, there were significant conflicts regarding Mr. Berta’s mental state at the time the will was signed, his intentions, his relationship with his daughter and her children, his relationship with Mr. Lipoth and his children, the actions and role of Mr. Lipoth and the circumstances surrounding the making of the will. These are not mere contradictions on immaterial issues. There are major conflicts in relation to material issues that could affect a determination of capacity and undue influence.

Despite these conflicts, the Chambers judge determined the evidence was overwhelming in favour of upholding the validity of the will. In the face of this controverted evidence on material issues, the only way she could have done so was by engaging in a weighing exercise by, inferentially, conducting an evaluation of credibility. [ 51 ] The Chambers judge’s approach in examining the evidence and then reaching the conclusion that it overwhelmingly favoured the executor’s position demonstrates that she impermissibly engaged in weighing the evidence and in assessing credibility.

She did not determine whether there was a genuine issue to be tried. While the affidavit and medical evidence in support of her determination was strong, the conflicts in the evidence on material points were simply too pronounced to support a finding that there was no genuine issue for trial unless there were adverse findings of credibility. The Chambers judge erred by treating the application as akin to a

summary judgment application where she would have been permitted to weigh the conflicting evidence and make findings of credibility. An application under Rule 16-46 did not permit her to engage in such an exercise. As such, the appeal must be allowed.

B. Other grounds of appeal [ 52 ] Some of the aspects of the other grounds of appeal are subsumed in the above discussion of the evidence. Given Ms. McStay’s success on the first issue, there is no utility in further discussing the other issues raised by this appeal. C. Costs [ 53 ] Ms. McStay has been successful in her appeal to this Court and should have her costs of this appeal, payable from the estate, on a solicitor–client basis. [ 54 ] While Ms.

McStay has been successful at stage one of her application challenging the will, she has only met the threshold of establishing that there is a genuine issue for trial. In the circumstances of this case, it is my view that the costs of the underlying application in the Court of Queen’s Bench should be costs in the cause, with the determination of whether such costs should be on solicitor–client basis left to the trial judge. VI. Conclusion [ 55 ] The appeal is allowed and a trial is directed to prove the last will and testament of Mihaly Berta, dated May 24, 2018, in solemn form.

The questions to be determined are whether Mr. Berta, at the time of the execution of the will, had testamentary capacity or was subject to undue influence. Costs of the Chambers application which resulted in the April 3, 2020, decision of the Chambers judge shall be costs in the cause, with the determination of whether such costs should be on solicitor–client basis left to the trial judge. [ 56 ] Ms. McStay shall have her costs of this appeal, payable from the estate, on a solicitor–client basis. “Tholl J.A.” Tholl J.A. I concur. “Jackson J.A.” Jackson J.A. I concur. “Barrington-Foote J.A.” Barrington-Foote J.A.