Witzaney v Fisher, 2023 SKCA 77

Court of Appeal for Saskatchewan Docket: CACV4017 Citation: Witzaney v Fisher , 2023 SKCA 77 Date: 2023-07-05 Between: Shelley Witzaney Appellant (Applicant) And Lawrence Fisher, James Fisher and Sherry Fisher, in their personal capacities and in their capacities as named Executors of the Estate of Clementine Fisher Respondents (Respondents) Before: Schwann, McCreary and Drennan JJ.A.

Disposition: Appeal dismissed Written reasons by: The Honourable Madam Justice McCreary In concurrence: The Honourable Madam Justice Schwann The Honourable Madam Justice Drennan On appeal from: 2022 SKQB 103 , Saskatoon Appeal heard: June 1, 2023 Counsel: Matthew R. Wawryk for the Appellant James D.

Steele for the Respondents McCreary J.A. [ 1 ] Shelley Witzaney appeals from an April 11, 2022, order of a Court of Queen’s Bench judge, dismissing her application to have certain codicils of the deceased, Clementine Fisher [Clementine], proved in solemn form: Witzaney v Fisher , 2022 SKQB 103 . [ 2 ] Clementine was married to Phillip Fisher. Together they had four children: James, Denise, Shelley and Sherry. In addition to those children, Mr. Fisher had two sons from a previous marriage. Clementine survived Mr.

Fisher, who passed away in 2012. [ 3 ] Clementine made a last will and testament on December 22, 2016 [Will]. No issue was taken with the validity of that Will by Ms. Witzaney or any other family member. Later, Clementine executed two codicils to her Will – one on February 5, 2018, and another on March 5, 2018. The February 5, 2018, codicil had the effect of divesting Ms. Witzaney, as well as Anna-Marie Rogers and Christina Fisher (Clementine’s step-granddaughters) as beneficiaries of her estate. The March 5, 2018, codicil had the effect of removing Ms. Witzaney as executor of the Will. [ 4 ] Ms.

Witzaney applied to have the executors prove the codicils in solemn form because, in her view, there were genuine issues to be tried respecting whether Clementine had testamentary capacity when she gave instructions for and then executed the two codicils, as well as whether she was unduly influenced into making them. [ 5 ] As I will explain, it is my view that the appeal should be dismissed for the reasons given by the Chambers judge. [ 6 ] The Chambers judge identified the test out in Kot v Kot , 2021 SKCA 4 , 63 ETR (4th) 161, for determining whether there was a genuine issue requiring a trial and for an order to be made directing that a will be proven in solemn form.

Citing McStay v Berta Estate , 2021 SKCA 51 , 458 DLR (4th) 106, he correctly noted that it is not the role of the Chambers judge at the first hearing to weigh conflicting evidence on the issue of testamentary capacity or undue influence. [ 7 ] With those legal principles in mind, the Chambers judge determined that the evidence put forth by Ms. Witzaney regarding Clementine’s testamentary capacity was not sufficient to raise a genuine issue to be tried.

He relied on deBalinhard Estate, Re , 2014 SKQB 162 , 447 Sask R 172, and found that the evidence before him on the issue of testamentary capacity at the times relevant to the creation and execution of the codicils was not contradictory. He found that the evidence p roffered by Ms. Witzaney did not address the material period when the codicils were created and executed and, thus, failed to raise any genuine issue for trial respecting Clementine’s testamentary capacity. He further found that, in any event, the respondents had shown that Clementine had the necessary testamentary capacity at the relevant time.

In coming to this conclusion, the Chambers judge relied upon an affidavit sworn by Clementine’s lawyer, Ken Neil, who stated: 97. On reviewing my recollections, and the notes I took, I found Clementine fully competent to make the Codicils, and the revisions to her powers of attorney. 98. Specifically: (

a) I recalled that Clementine remained aware of the extent of her property. She described which assets she wished to go to certain beneficiaries, such as the home quarter and its house, to Lawrence; (

b) I knew that Clementine was still living alone, and caring for her own daily food and needs. Every time I met Clementine I found her very alert to time and place. From her answers, I had no concerns about her mental functioning; (

c) She provided me reasons for excluding beneficiaries. For example, she did not consider Anna-Marie and Christina (step grandchildren), to be her blood;

(

d) Clementine at no time appeared confused, nor did I even see her forget something I had previously told her; (

e) Clementine was very firm with me when she told me that she wished Shelley removed off of the Will. I proposed other options, toensure Clementine was aware of other options. Despite this, Clementine remained steadfast. 99. Clementine told me the above things while in a private room. I have prior experience with persons who are under pressure from others,and therefore tell me in a private room about this pressure.

Even in private, Clementine did not give the slightest impression of being underpressure. (Emphasis in original) [8] On the issue of undue influence, the Chambers judge cited Carlson v Carlson, 2018 SKQB 196, 39 ETR (4th) 308, andLamontagne Estate, Re (1996), (SK KB), 150 Sask R 85 (QB), for the definition of what constitutes undue influence.He concluded that, on the admissible evidence before him, there was nothing to suggest that Clementine was coerced into changing herwill in the fashion that she did. Consequently, he found that Ms.

Witzaney had failed to raise a genuine issue respecting whether therespondents had exercised power over Clementine in such a manner that it resulted in the codicils being made in the fashion they were. Heonce again referred to the uncontradicted evidence of Clementine’s solicitor, Mr. Neil, which he said demonstrated that there was nogenuine issue to be tried respecting whether undue influence was exerted on Clementine. [9] Ms. Witzaney says the Chambers judge erred in many ways. She raised ten grounds in her notice of appeal.

However, inargument, she distilled these grounds into three broad issues, which overlap to some degree. These are whether the trial judge erred by:(1) improperly weighing conflicting affidavit evidence; (2) by finding there was no genuine issue for trial involving testamentaryincapacity; and (3) by finding that no genuine issue for trial existed respecting undue influence. [10] The Chambers judge’s decision as to whether the codicils must be proven in solemn form was discretionary in nature.

As thisCourt stated in Kot at para 20, appellate intervention in relation to a discretionary decision is only warranted where the judge makes apalpable and overriding error in their assessment of the facts, misapprehends or fails to consider material evidence, fails to correctlyidentify the legal criteria which governs the exercise of their discretion, or misapplies those criteria. [11] In applying that standard of review, I see no error in the Chambers judge’s identification of the proper legal test or in itsapplication, nor do I detect any reviewable error in the Chambers judge’s findings of fact, or the assignment of weight. [12] As to Ms.

Witzaney’s suggestion that the Chambers judge improperly weighed conflicting evidence to arrive at findings of fact,I respectfully disagree. On the contrary, he found that the evidence proffered by Ms. Witzaney was not material to the issues oftestamentary capacity or undue influence because it did not address Clementine’s mental state, or the pressures exerted upon her, at thematerial time– namely, when instructions were given to draft the codicils and when the codicils were executed.

When the applicablestandard of review is applied, I cannot identify any error with that finding. [13] Secondly, in my view, the Chambers judge correctly stated and applied the legal principles governing testamentary capacityand undue influence, as these issues relate to a testator creating and executing a codicil to a will. I agree with the Chambers judge that theonly relevant evidence respecting Clementine’s testamentary capacity, or any influence she was subject to, came from her solicitor,Mr. Neil.

I see no palpable or overriding errors in the Chambers judge’s findings of fact, nor any errors in his application of the law to thefacts on these issues. [14] I further agree with the Chambers judge that Mr. Neil’s uncontradicted evidence was highly compelling and demonstrated thathe took careful steps to ensure that Clementine had testamentary capacity to give instructions for the codicils and to execute them, and thatshe was not being unduly influenced by her children or anyone else in doing so. Mr.

Neil’s uncontradicted evidence is that he ensured thatClementine was aware of the property she was bequeathing and that there might be objections to her removing the three formerbeneficiaries from the Will. The Chambers judge noted, as follows: [63] Shelley has failed to raise a genuine issue for trial that the respondents exercised power [over] Clementine and that it was theexercise of that power that resulted in the codicil being made in the fashion it was. As I have stated earlier, the evidence of Mr.

Neil,which is not contradicted, shows primarily that James and, to a lesser extent, Lawrence were involved in arranging for their mother to meetwith Mr. Neil for the purpose of changing the powers of attorney and the December 22, 2016, will. The evidence goes no further thanthat, and indeed, it is clear by the procedures adopted by Mr. Neil, he was satisfied there was not undue influence exerted upon her andthat he was alive to that issue given her circumstances. [15] On appeal, Ms. Witzaney argues that Clementine divested her as a beneficiary because she believed that Ms.

Witzaney hadmisappropriated her money when she served as Clementine’s power of attorney. Ms. Witzaney says that these circumstances raise agenuine issue for trial respecting undue influence because Clementine’s reason for disinheriting her was erroneous and improperlycultivated by others, therefore calling into question whether Clementine accurately understood the extent of the property in her estate. [16] With respect, I cannot accept this argument. The evidence of whether Ms. Witzaney misappropriated Clementine’s money iscontroverted.

However, it is uncontroverted that the alleged misappropriation was not Clementine’s only reason for removingMs. Witzaney as a beneficiary – in fact, Clementine gave several other reasons to Mr. Neil for doing so. In addition, when Mr. Neiloffered a solution to address the alleged misappropriation without disinheriting Ms. Witzaney, Clementine unequivocally rejected thatsolution on more than one occasion.

I am therefore not persuaded that the evidence respecting the alleged misappropriation demonstratesthat there is a genuine issue for trial respecting the allegation of undue influence. [17] In conclusion, the Chambers judge did not commit any errors when he determined that there were no genuine issues whichrequired a trial to prove the codicils in solemn form. [18] In the result, I would dismiss the appeal and order that the respondents be fully indemnified from Clementine’s estate for theiractual legal fees and disbursements on this appeal. Ms.

Witzaney also sought to have her legal fees paid for by the estate, but I decline tomake that order, given that the appeal is dismissed.

“McCreary J.A.” McCreary J.A. I concur. “Schwann J.A.” Schwann J.A. I concur. “Drennan J.A.” Drennan J.A.