deBalinhard Estate, Re, 2014 SKQB 162

• Judge: Schwann, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: May 29, 2014
• Jurisdiction: Saskatchewan
• Citations: 2014 SKQB 162;(2014), 447 Sask.R. 172 (QB)

deBalinhard Estate, Re (2014), 447 Sask.R. 172 (QB)

MLB headnote and full text

Temp. Cite: [2014] Sask.R. TBEd. JL.009

In The Matter Of the Estate of John Debalinhard Late of Yorkton, Saskatchewan Retired, Deceased

(2012 SC No. 228; 2014 SKQB 162)

Indexed As: deBalinhard Estate, Re

Saskatchewan Court of Queen's Bench

Judicial Centre of Yorkton

Schwann, J.

May 29, 2014.

Summary:

John deBalinhard's widow applied to revoke Letters Probate issued on January 24, 2013, and for an order requiring John's Last Will and Testament to be proven in solemn form on the basis John lacked testamentary capacity at the time he made his will.

The Saskatchewan Court of Queen's Bench dismissed the application.

Wills - Topic 404

Testamentary capacity - Mental disabilities - Delusions - General - John deBalinhard died on June 4, 2012 - His widow (Shirley) applied to revoke Letters Probate and for an order requiring John's Last Will and Testament to be proven in solemn form on the basis John lacked testamentary capacity at the time he made his will on October 20, 2011 - The Saskatchewan Court of Queen's Bench dismissed the application - Shirley submitted that John's chronic alcoholism was sufficient evidence to meet the test for testamentary incapacity at stage one - However, there was no evidence John executed his will while intoxicated - Further, no evidence was adduced to explain how alcoholism as a disease affected and eroded cognitive capacity and, if so, whether John had reached the point where he could no longer achieve the recognized hallmarks of testamentary capacity - Shirley had also pointed to a discharge summary in relation to John's hospital stay on November 16, 2011 - That report stated the medical basis for admission and the likely diagnosis to be acute delirium, likely from alcohol withdrawal - There were three problems with Shirley's argument - First, Shirley urged the court to assume that a state of "delirium" equated to a lack of mental capacity in the absence of any medical interpretation or explanation to support her position, and that "delirium" should be inferred as longstanding and pre-existing - Second, according to the affidavits of both Shirley and another person, John did not stop drinking - Third, no temporal connection was established between John's alleged incapacity on the date of his hospital admission and the date he signed his will a month before - Shirley failed to point to any probative evidence which tended to negate testamentary capacity at the time John executed his will - In any event, the propounder of the will had successfully answered Shirley's challenge and affirmed John's testamentary capacity - See paragraphs 58 to 82.

Wills - Topic 531

Testamentary capacity - Evidence and proof - General - The Saskatchewan Court of Queen's Bench stated that in relation to the issue of testamentary capacity, evidence of the following was relevant and had to be considered: "1) whether the testator was knowledgeable about the nature and extent of his or her property; 2) whether the testator understood the persons who would benefit from his or her will and the extent of the bequest given to each beneficiary; 3) whether the testator understood the nature of the claims by those who were not named as beneficiaries; and 4) whether the testator formed an orderly desire to dispose of his or her property. ... eccentricity, capriciousness or unfairness is not a sufficient marker of testamentary incapacity, nor for that matter should a diagnosis of dementia or Alzheimers be taken to be conclusive on the issue" - See paragraph 57.

Wills - Topic 534

Testamentary capacity - Evidence and proof - Onus of proof - General - John deBalinhard's widow (Shirley) applied to revoke Letters Probate and for an order requiring John's Last Will and Testament to be proven in solemn form on the basis John lacked testamentary capacity at the time he made his will - The Saskatchewan Court of Queen's Bench stated that "The sole issue to be determined on this application is whether there is a genuine issue to be tried with regard to John's testamentary capacity when he executed his will. At stage one, this Court sitting in chambers must refrain from weighing the evidence of the two sides to determine the ultimate question, but rather decide: 1) whether Shirley adduced some evidence, which if accepted at trial, would tend to negative testamentary capacity; and if so, 2) whether the propounder of the will, by uncontradicted evidence, successfully answered the challenge and affirmed testamentary capacity of the testator" - See paragraph 58.

Cases Noticed:

Hay Estate, Re, [1995] 2 S.C.R. 876; 183 N.R. 1; 82 O.A.C. 161; 125 D.L.R.(4th) 431, refd to. [para. 47].

Vout v. Hay - see Hay Estate, Re.

Dieno (Inez) v. Dieno (Jacob) Estate, [1996] 10 W.W.R. 375; 147 Sask.R. 14 (Q.B.), refd to. [para. 48].

Ritchie Estate, Re (2007), 293 Sask.R. 238; 397 W.A.C. 238; 2007 SKCA 64, refd to. [para. 48].

Kapacila Estate, Re, [2010] 9 W.W.R. 575; 359 Sask.R. 84; 494 W.A.C. 84; 2010 SKCA 85, refd to. [para. 50].

Quaintance Estate, Re (2006), 380 A.R. 160; 363 W.A.C. 160; 2006 ABCA 47, refd to. [para. 51].

Counsel:

Gerald B. Heinrichs, for Shirley deBalinhard;

Thomas P. Campbell, for the Estate of John deBalinhard.

This application was heard before Schwann, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Yorkton, who delivered the following judgment on May 29, 2014.