Bakken Estate, Re, (1992) 104 Sask.R. 67 (QB)

• Judge: Armstrong, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: August 19, 1992
• Jurisdiction: Saskatchewan
• Citations: (1992), 104 Sask.R. 67 (QB)

Bakken Estate, Re (1992), 104 Sask.R. 67 (QB)

MLB headnote and full text

In The Matter Of the Estate of Oscar Clarence Bakken, late of the Town of Shaunavon, in the Province of Saskatchewan, deceased

Beverly Wayne Bakken (plaintiff) v. Stella Bakken, by Dan Rayner her Litigation Guardian, Leonard Keith Bakken, and the Estate of Oscar Clarence Bakken as represented by the Executrix, Myrtle Deborah Schermerhorn (defendants)

(1991 S.C. No. 139)

Indexed As: Bakken Estate, Re

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

Armstrong, J.

August 19, 1992.

Summary:

A testator executed a will on April 16, 1979, when he was 81 years old. The will left practically the entire estate to the testa­tor's adopted son Wayne. The testa­tor's widow and his other adopted son chal­lenged the will on the basis that the testator lacked testamentary capacity at the time of its making or in the alternative that he was unduly influenced by his son Wayne.

The Saskatchewan Court of Queen's Bench held that the will was valid and ordered that probate be granted.

Wills - Topic 303

Testamentary capacity - General principles - Tests for determining capacity - A testator executed a will on April 16, 1979, when he was 81 years old - The will left practically the entire estate to the testator's adopted son Wayne - The testa­tor's widow and his other adopted son challenged the will on the basis that the testator, who suffered from Alzheimer's disease when he died in 1990, lacked testa­men­tary capacity at the time of its making - The Saskatchewan Court of Queen's Bench held that the testator had testamen­tary capacity and ordered that probate be granted - The testator knew the extent of his property and what he had left to whom.

Wills - Topic 1704

Preparation and execution - Undue influ­ence - What constitutes - General - A testator executed a will on April 16, 1979, when he was 81 years old - The will left practically the entire estate to the testator's adopted son Wayne - The testa­tor's widow and his other adopted son challenged the will on the basis that the testator, who was suffering from Alzheimer's disease at time of his death in 1990, was unduly influ­enced by his son Wayne - The Saskatchewan Court of Queen's Bench held the will was valid, where there was no evidence of a domi­nant-servient relation­ship or anything else which would raise a presumption of undue influence.

Cases Noticed:

Hrycan Estate v. Hrycan (1986), 49 Sask.R. 277 (Q.B.), refd to. [para. 27].

Banks v. Goodfellow (1870), L.R. 5 Q.B. 549; 39 L.J.Q.B. 237, refd to. [para. 27].

Dynna, Saskatchewan Heart Foundation and Saskatchewan Association for the Mentally Retarded v. Grant and Grant (1980), 3 Sask.R. 135 (C.A.), refd to. [para. 27].

Goodman Estate v. Geffen, [1991] 5 W.W.R. 389; 127 N.R. 241; 125 A.R. 81; 14 W.A.C. 81 (S.C.C.), refd to. [para. 29].

Allcard v. Skinner, [1886-90] All E.R. 90; 36 Ch. D. 145 (C.A.), refd to. [para. 29].

Counsel:

Bruce Errol McKay and James D.J. Sirounis, for the plaintiff;

Murray Walter and James G. Fitz-Gerald, for the defendants, Stella Bakken, by Dan Rayner, her litigation guardian and Leonard Keith Bakken;

James Benison, for the defendant, Estate of Oscar Clarence Bakken as represented by the Executrix, Myrtle Deborah Schermerhorn.

This case was heard before Armstrong, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Regina, who delivered the following judgment on August 19, 1992.