Bell v Bell Estate, 2023 SKCA 53

Court of Appeal for Saskatchewan Docket: CACV4075 Citation: Bell v Bell Estate , 2023 SKCA 53 Date: 2023-05-09 Between: Wayne Joseph Bell Appellant (Applicant) And Donald Glenn Bell and Grant Bell, personal representatives of the Estate of Laurette Josephine Bell Respondents (Respondents) Before: Leurer, Tholl and Drennan JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Madam Justice Drennan In concurrence: The Honourable Mr. Justice Leurer The Honourable Mr.

Justice Tholl On appeal from: 2022 SKQB 198 , Regina Appeal heard: January 11, 2023 Counsel: Elaine Selensky and Virgil Thomson for the Appellant Kenneth Karwandy for the Respondents Drennan J.A. I. INTRODUCTION [ 1 ] Wayne Bell appeals the decision of a Chambers judge of the Court of Queen’s Bench, which dismissed his application to have the will of his mother, Laurette Bell, proven in solemn form. Before the Chambers judge, Wayne argued that Laurette lacked testamentary capacity and was unduly influenced at the time her will was executed on January 8, 2020 [Will].

The Will effectively excluded Wayne and his immediate family as beneficiaries to Laurette’s estate. [ 2 ] Wayne asserts that the Chambers judge erred by improperly weighing controverted evidence and making credibility findings, as well as by misapprehending and disregarding material aspects of the evidence. [ 3 ] For the reasons that follow, I would dismiss the appeal. II. BACKGROUND A. Circumstances leading to the Will [ 4 ] Wayne is one of seven children, born to Laurette and Donald Bell Sr. Donald Sr. passed away in 2015.

Laurette passed away in August of 2021. [ 5 ] Laurette and Donald Sr. operated a successful business called Insulation Applicators Ltd. Following Donald Sr.’s death, the business came to be operated by Wayne and his three brothers, Grant, Garth, and Donald Jr. The business ultimately suffered financial difficulties, and its assets were sold in late 2020. [ 6 ] Several years before Laurette’s death, a rift arose between her, Wayne, and his siblings, primarily over two matters. [ 7 ] The first matter involved an allegation that Wayne misused business funds and assets for his and his immediate family’s personal use.

Wayne’s brothers commissioned an audit to investigate the allegations, the results of which they construed as supporting this concern. Wayne’s brothers ultimately assumed control over the business and terminated both Wayne and his spouse as employees in 2020. [ 8 ] The second matter was a conflict between Laurette and Wayne’s daughter Dawn, over an allegedly unpaid loan owed by her to Laurette. In September of 2019, Laurette retained the legal services of Wayne Bernakevitch to send Dawn a demand for repayment. Dawn responded by asserting she had repaid the loan in full in October of 2004.

However, Laurette remained doubtful as to whether it had in fact been repaid. [ 9 ] In January of 2020, Laurette executed the Will, specifying that Wayne and his children were not to receive any portion of her estate. She did so with the assistance of Mr. Bernakevitch, who noted no issues with her testamentary capacity. At the same time, she raised concerns with Mr. Bernakevitch about Wayne’s conduct in relation to the business. [ 10 ] Laurette had executed a different will approximately four months prior, also with Mr.

Bernakevitch’s assistance. [ 11 ] In early 2021, Wayne and his spouse commenced an action, in relation to their termination as employees of the business, against Grant, Garth, Donald Jr. and the business. [ 12 ] Laurette was 88 years of age at the time of her death in August of 2021. The cumulative value of her divisible estate could be

fairly described as modest. B.

The Chambers application [ 13 ] Wayne applied to the Chambers judge to have the Will proven in solemn form pursuant to Rule 16-46 of The Queen’s Bench Rules , alleging that Laurette lacked testamentary capacity and was unduly influenced at the time the Will was executed. [ 14 ] Regarding the issue of testamentary capacity, Wayne asserted that Laurette was 87 years old at the time of the Will, increasingly forgetful, and had on one occasion, just months prior to the execution of the Will, become confused and disoriented after attending a coin shop, subsequently wandering for several hours.

He argued that Laurette’s mistaken belief in an outstanding loan to Dawn was further indicia that she lacked testamentary capacity. [ 15 ] On the issue of undue influence, Wayne asserted that his brothers had made disparaging comments about him to Laurette, specifically alleging that he misused business funds and assets. He argued this was evidence that Laurette was unduly influenced. [ 16 ] Wayne’s five siblings, Grant, Donald Jr., Garth, Graham and Linda, filed reply affidavits opposing his application. They also filed an affidavit of Mr.

Bernakevitch, outlining his interactions with Laurette prior to and at the time of the execution of the Will. [ 17 ] The evidence of Wayne’s siblings was consistent, each averring that Laurette was capable and independent until shortly before her death in August of 2021. Garth moved in with Laurette in December of 2020, and remained until she moved into a care home and subsequently palliative care. He deposed that Laurette made all her own decisions, booked her own appointments, paid all her bills, and expressed her wishes clearly until the date of her death.

In relation to Wayne’s assertion that Laurette had become disoriented and lost on one occasion, Grant deposed that he had dropped her off to attend a coin shop, and she had mistakenly headed south thereafter, instead of towards Linda’s business as she had intended. She ultimately reversed her path and arrived back at Linda’s business without incident. [ 18 ] Wayne’s brothers agreed they had discussed with Laurette their concerns about Wayne’s alleged misuse of business funds and assets. They also agreed that Laurette was generally aware of the allegations. [ 19 ] Mr.

Bernakevitch deposed that, upon execution of the Will, he made note that Laurette was “quite competent and quite adamant about” her exclusion of Wayne and his immediate family from the Will. He further averred that Laurette was concerned about Wayne misusing business funds, as well as the debt she believed Dawn owed her. C.

The decision [ 20 ] The Chambers judge noted that an application to challenge a will involves two levels of hearings: first, a hearing to determine whether there is sufficient merit in the challenge to the will to warrant a trial; and second, if sufficient merit was found, a trial of the issue. He identified that the question at the first hearing is whether there is a genuine issue to be tried.

He reviewed the legal tests for determining testamentary capacity and undue influence. [ 21 ] Turning to the evidence, the Chambers judge determined that Wayne’s assertions surrounding Laurette’s age, her possible confusion over the loan to Dawn, and her momentary confusion when walking to Linda’s business from the coin shop, did not give rise to a genuine issue requiring a trial. The Chambers judge went on to conclude that the discussions between Wayne’s brothers and Laurette regarding Wayne’s alleged misuse of business resources was not some evidence tending to prove undue influence.

He noted that when Dawn raised in a letter to Mr. Bernakevitch the issue of undue influence in relation to the alleged loan, Mr. Bernakevitch recorded in his notes “undue influence on her is unfair to her. She is very capable and doing this of her own initiative” (at para 59). [ 22 ] In conclusion, the Chambers judge found that Wayne had failed to provide a sufficient evidentiary basis to order a trial. He noted “[t]his determination has been made based upon uncontroverted evidence and without the need to weigh conflicting evidence or make findings of credibility” (at para 63). III.

POINTS AT ISSUE [ 23 ] While the notice of appeal identifies several grounds, Wayne’s argument was narrowed in his written and oral submissions to two grounds: (

a) Did the Chambers judge err by improperly weighing controverted evidence and making credibility findings? (

b) Did the Chambers judge err by misapprehending the evidence or disregarding material evidence? IV. ANALYSIS A. Did the Chambers judge err by improperly weighing controverted evidence and making credibility findings? [ 24 ] The question under this head is whether the Chambers judge said one thing but did another. In this regard, Wayne concedes that the Chambers judge identified the correct legal framework that governed the exercise of his discretion but asserts that he then failed to apply it. I will begin by briefly reviewing the legal framework the Chambers judge used to structure his analysis. [ 25 ] The Chambers judge began his

summary of the applicable law by discussing issues of procedure. As previously noted, he

commented that an application to challenge a will involves two levels of hearings. A first hearing requires a determination of whetherthere is sufficient merit in the challenge to the will to warrant a second hearing in the form of a trial. He identified that the question at thefirst hearing is whether there is a genuine issue to be tried. He noted that “a chambers judge […] retains an integral supervisory role toensure that only those matters in which there is a ‘genuine issue to be tried’ proceed to trial” (at para 13).

He added that “[i]n performingthis gate-keeping function, it must be determined whether the person challenging the will has pointed to some evidence, which if acceptedat trial, would tend to negative testamentary capacity and/or prove undue influence” (at para 13, citing Otto v Kapacila Estate, 2010SKCA 85 at para 27, [2010] 9 WWR 575 [Kapacila]; Bachman v Scheidt Estate, 2016 SKCA 150 at para 16, [2017] 2 WWR 301; Ritchiev Royal Trust Corporation of Canada, 2007 SKCA 64 at para 6, 293 Sask R 238 [Ritchie]; and Fraser v Fraser Estate, 2021 SKQB 192at para 24). [26] The Chambers judge next reviewed the law surrounding challenges to testamentary capacity.

He referred to Vout v Hay, (SCC), [1995] 2 SCR 876 [Vout], for the proposition that upon “proof that a will was duly executed with the requisiteformalities after having been read over to or by the testator who appeared to understand it, a presumption arises that the testator knew andapproved the contents of the will and had the necessary testamentary capacity” (at para 14, citing Vout at para 26).

He observed thatWayne “does not dispute that the formalities of execution required by s. 7 of The Wills Act, SS 1996, c W-14.1, were performed”, whichmeant that, in this case, “there is a presumption of testamentary capacity” (at para 15). The Chambers judge then further considered theessential elements of capacity, referring to Ritchie and Kapacila, following which he identified the question to be “whether the testator hadtestamentary capacity, not capacity in general” (at para 17). [27] Finally, as part of his review of the law, the Chambers judge discussed the test for undue influence.

In doing this, he relied onthis Court’s decision in Karpinski v Zookewich Estate, 2018 SKCA 56 [Zookewich], referencing the test for undue influence as articulatedin Vout, being “influence which can justly be described by a person looking at the matter judicially to have caused the execution of apaper pretending to express a testator’s mind, but which really does not express his mind, but something else which he did not reallymean” (at para 19, citing Zookewich at para 30, citing Vout at para 29).

He went on to instruct himself that undue influence “can usuallyonly be discovered by examining the circumstances leading up to the preparation of the will or by looking at the relationship that existedbetween the person benefitting from the will and the testator” (Lamontagne v Lamontagne (1996), (SK KB), 150 SaskR 85 (WL) (QB) at para 30; Carlson v Carlson Estate, 2018 SKQB 196 at paras 40–41, 39 ETR (4th) 308).

In a first hearing, an applicantmust show some evidence that the testator’s free will was “overpowered” by undue influence (Carlson at para 42). [28] Wayne argues that, notwithstanding the Chambers judge’s identification of the applicable legal tests, he erred by weighingconflicting evidence and making credibility findings, contrary to the direction of this Court in Kot v Kot, 2021 SKCA 4, 63 ETR (4th) 161[Kot], and the other authorities to which the Chambers judge referred.

Essentially, he asserts that the Chambers judge misapplied therelevant legal criteria, thereby committing an error in law warranting appellate intervention. [29] With respect, I see no support for this contention in the decision of the Chambers judge. I reach this conclusion for thefollowing reasons. [30] As I have reviewed, the Chambers judge repeatedly cautioned himself as to his role in a first-hearing context. While Waynesuggests the Chambers judge failed to heed this caution during his analysis, I am not persuaded that the Chambers judge erred in thisfashion.

Further, I note that following his detailed analysis of the law, the Chambers judge then reviewed the “Background Facts”,summarizing the affidavits both parties had presented. As with the Chamber judge’s review of the law, Wayne offers no criticism of theChambers judge’s

summary of the evidence. [31] Only after setting out a framework of the law and a

summary of the evidence that stands unimpeached by Wayne, did theChambers judge enter into his analysis. In the first paragraph of this, he identified the argument made on Wayne’s behalf to be “that thereis a ‘genuine issue to be tried’ in relation to testamentary capacity and/or undue influence” (at para 42). After a further

summary of thearguments made before him, the Chambers judge stated that he approached this question being “[m]indful of the obligation of the Court toconsider the evidence, both for and against the applicant, for the limited purpose of determining whether there is a genuine issue to betried without weighing conflicting evidence and making credibility determination” (at para 46).

This statement conclusively demonstratesthat the Chambers judge had a clear eye on the task he was called upon to undertake. [32] A review of the remainder of the Chambers judge’s reasons show that he was careful not to determine contested points,including whether the loan to Dawn had in fact been repaid, or whether Wayne had misappropriated assets and funds of the business. Heremained focused on whether there was a genuine issue, and whether Wayne had adduced some evidence that could negate testamentarycapacity or tend to prove undue influence.

At no point in his analysis did he overstep the confines of this first-hearing evidentiary focus. [33] Significantly, the Chambers judge assessed Wayne’s allegations in their most favourable light and determined that Wayne had“not adduced any evidence which, if accepted at trial, would tend to negate testamentary capacity or establish undue influence” (at para47, emphasis added). He also found the evidence was uncontroverted on major points underpinning the issues of testamentary capacityand undue influence, thus requiring no weighing. Some specifics of his reasoning are as follows: (

a) Regarding the loan to Dawn, the Chambers judge determined that even “if Laurette was mistaken in the belief that the loanwas still outstanding, [it did] not lead to the conclusion that Laurette was not competent to execute the Will” (at para 52). He further notedthat, even if Wayne could establish this at trial, “[m]any people forget details of the past and the fact that one may have been mistakendoes not mean that she was incompetent or was not capable of executing a valid will” (at para 52). (

b) The Chambers judge found that even if Laurette had “forgotten some names and may have gone in the wrong direction afterleaving a coin shop on one or more occasions, [this] does not constitute evidence that would negate testamentary capacity” (at para 53). (

c) Aside from acknowledging the factual underpinnings for Laurette and Wayne’s conflict, the Chambers judge declined todelve into any analysis of this issue. He noted that “[e]ven if Laurette was wrong about her presumptions and perceptions, there is noevidence that there was influence that would have overburdened her will” (at para 56). (

d) The Chambers judge found there was no need to weigh conflicting evidence, as there was “uncontroverted relevant first-hand

information from all of [Laurette’s] children (except for Wayne and Melanie) and the senior lawyer that took instructions for her Will and witnessed her sign the Will that she was sharp and did not lack testamentary capacity when she signed the Will” (at para 54).

Similarly, the Chambers judge found the evidence was uncontroverted that there was a rift between Wayne and Laurette, which gave context to the Will, and was not indicative of any undue influence. [ 34 ] In these circumstances, the Chambers judge did not need to delve into evidentiary weighing or credibility assessments to make his ultimate determination that Wayne’s evidence was deficient and unsupportive of the existence of a genuine issue for trial. [ 35 ] Taking a step back, although Wayne presents his argument as an application of the Kot framework, substantively his submission goes far past a complaint that the Chambers judge engaged in a prohibited weighing of evidence or credibility determinations.

He appears to take issue with the basic evidentiary review inherent in the gatekeeping role of a Chambers judge in a first-hearing process. As noted in Kapacila , the first hearing is intended to “weed” out claims that do not have sufficient merit to proceed to trial.

To fulfill this function, in accordance with the direction in Ritchie , Kapacila , Bachman , McStay v Berta Estate , 2021 SKCA 51 , 458 DLR (4th) 106 , and Kot , the Chambers judge was required to consider both the evidence of Wayne, as the applicant, and that of the respondents to assess whether there was sufficient evidence supporting Wayne’s claims regarding testamentary capacity and undue influence that would require a trial.

In Kot , Barrington-Foote J.A. referred to the “tension between the requirement [at the first-stage hearing] 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” (at para 24).

He then referred to the following statement from Bachman as properly capturing the balance to be struck: [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. [ 36 ] In this case, the Chambers judge undertook exactly this analysis.

Citing Ritchie at paragraph 6 , he noted that “not every suggestion of irregularity or evidence on peripheral points” will demonstrate a genuine issue (at para 62). It is therefore clear that the Chambers judge understood and executed his filtering function. His analysis discloses no reviewable error. [ 37 ] For these reasons, I would not give effect to this ground of appeal. B.

Did the Chambers judge err by misapprehending the evidence or disregarding material evidence? [ 38 ] Wayne argues that the Chambers judge both misapprehended evidence and disregarded material evidence demonstrating “suspicious circumstances” that negated testamentary capacity and supported undue influence. He points to the following evidence in support of this assertion: (

a) Laurette had executed a different will four months prior in 2019; (

b) Wayne’s brothers admitted to discussing with Laurette allegations that Wayne misused business assets and funds prior to the execution of the Will; (

c) Mr. Bernakevitch was aware of the Bell family conflict but asked no specific questions to assess undue influence or Laurette’s competency at the time of the Will; and (

d) Wayne deposed to a conversation in which Linda had expressed concerns with Laurette’s mental state, and that Linda did not specifically deny having that conversation in her affidavit (despite her other comments that she viewed her mother to be capable and competent until her death). [ 39 ] The crux of Wayne’s submission on this point is that the Chambers judge failed to appreciate the need for cross-examination of the respondent deponents in this matter on some controverted or nebulous aspects of the evidence. [ 40 ] With respect, the reasons of the Chambers judge do not indicate any misapprehension or failure to properly consider material evidence bearing upon whether a genuine issue for trial existed. [ 41 ] To begin, the Chambers judge identified that there were evidentiary disputes and differences as between Wayne and the respondents, such as their perspectives on Laurette’s alleged forgetfulness and the impact of familial discussions with her regarding concerns about Wayne’s alleged improper use of funds from the business.

However, these differences do not mean the evidence underpinning the genuine-issue question was controverted. In concluding that Wayne’s assertions did not amount to some evidence negating testamentary capacity or supporting undue influence, the Chambers judge did not need to reconcile all collateral and narrative aspects of both applicant and respondent evidence unrelated to the genuine-issue focus.

On that crucial point, he found the evidence to be uncontroverted. [ 42 ] Respectfully, it involves a significant speculative leap to find suspicious circumstances from the fact Laurette executed two wills in the space of approximately four months or to suggest that Mr. Bernakevitch may have uncovered something nefarious had he questioned Laurette more rigorously about her family dynamics at the time of the execution of the Will.

Ultimately, the onus during the first hearing was on Wayne to point to some evidence that, if accepted at trial, would tend to prove his claims ( Kapacila at para 27 ; Ritchie at para 6 ). The respondents did not bear any onus to disprove Wayne’s assertions. [ 43 ] On the whole of the matter, I find no misapprehension or disregarding of evidence occurred warranting appellate intervention. V. CONCLUSION

[ 44 ] I would dismiss Wayne’s appeal and grant the respondents costs on Column III. “Drennan J.A.” Drennan J.A. I concur. “Leurer J.A.” Leurer J.A. I concur. “Tholl J.A.” Tholl J.A.