Burns Estate, Re, (2010) 356 N.B.R.(2d) 263 (ProbCt)

• Judge: Ouellette, J.
• Case Date: March 12, 2010
• Jurisdiction: New Brunswick
• Citations: (2010), 356 N.B.R.(2d) 263 (ProbCt);2010 NBQB 85

Burns Estate, Re (2010), 356 N.B.R.(2d) 263 (ProbCt);

  356 R.N.-B.(2e) 263; 919 A.P.R. 263

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Temp. Cite: [2010] N.B.R.(2d) TBEd. MR.045

Renvoi temp.: [2010] N.B.R.(2d) TBEd. MR.045

Maurice Chilson (Chet) Randall (applicant) v. Lois M. Hare (respondent)

(N/P/02/06; N/P/14/06; 2010 NBQB 85; 2010 NBBR 85)

Indexed As: Burns Estate, Re

Répertorié: Burns Estate, Re

New Brunswick Probate Court

Judicial District of Miramichi

Ouellette, J.

March 12, 2010.

Summary:

Résumé:

The testator was 90 years old at the time of his death in 2005. He had a long history of declining health, both physical and mental, and suffered from alcoholism. By 2001, he needed home care. By 2002, he had developed dementia. During his lifetime, he made a number of wills, including a will dated August 22, 2003 and March 31, 2004. The 2003 will appointed his niece (Hare) as executrix and sole beneficiary of his estate. All other wills, including the 2004 will, appointed his nephew (Randall) as executor and sole beneficiary. Randall applied to probate the 2004 will; Hare applied to probate the 2003 will. Prior to the hearing, it was agreed that the 2004 will was not valid.

The New Brunswick Probate Court dismissed the application for the probate of the 2003 will. There were very serious suspicious circumstances in the preparation of the will. Hare did not satisfy the conscience of the court that the 2003 will was the last will of a free and competent testator.

Barristers and Solicitors - Topic 1560.3

Relationship with client - Duty to client - General - Re capacity of client - [See first Barristers and Solicitors - Topic 1686 ].

Barristers and Solicitors - Topic 1686

Relationship with client - Preparation of wills - Duty to test the capacity of the testator - The New Brunswick Probate Court stated that "[a] solicitor when dealing with a frail person should always take precautions and act with diligence ... The extent of his duties ... varies with the situation and the condition of the testator. When a person is greatly enfeebled by old age or presents with faculties impaired by disease and more importantly where he is enfeebled by both, the solicitor cannot discharge his duty by simply taking instructions and giving legal expression to the words of the client ... The solicitor's purpose is to ascertain the mind and will of the testator as to his knowledge, his approval of its contents, ensuring that it represents the intelligent act of a free and competent person ... The solicitor must go far enough not only to satisfy himself as to the capacity of the testator but also far enough to satisfy the Court that the steps taken were sufficient to warrant his satisfaction" - See paragraphs 125 to 127.

Barristers and Solicitors - Topic 1686

Relationship with client - Preparation of wills - Duty to test the capacity of the testator - The testator was 90 years old at the time of his death in 2005 - By 2001, he needed home care - By 2002, he had developed dementia - He made a number of wills, including a 2003 will - In the probate application at bar, both suspicious circumstances and undue influence were alleged surrounding the execution of the will - The solicitor who took the testator's instructions and supervised the execution of the will testified that he read the will over to the testator and that he appeared to understand - The New Brunswick Probate Court stated that the solicitor's evidence provided no assistance to the court in deciding if the testator was mentally competent to give instructions - What the solicitor did "fell short of what a solicitor should do in these circumstances" - See paragraphs 128 and 129.

Executors and Administrators - Topic 1037

Grant of probate or letters of administration - Application for grant - Multiple wills - [See second Wills - Topic 541 ].

Wills - Topic 534

Testamentary capacity - Evidence and proof - Onus of proof - General - In the probate application at bar, both suspicious circumstances and undue influence were alleged surrounding the execution of the will - The New Brunswick Probate Court stated that for the will to be probated, "the Court must be satisfied of its validity, that the testator had the knowledge and had approved the contents of the will. The burden of proof of testamentary capacity is on the executor or the person who propounds the will for probate. The mental capacity must be proved on a balance of probabilities. Once the attacker of the will casts any doubt on the sanity of the testator, then the executor must remove that doubt and if they fail to do so the will must be rejected ... There is confusion about the burden of proof and substantive law when these two concepts of suspicious circumstances and undue influence are thrown together ... The confusion seems to come from the fact that suspicious circumstances could in some instances be tied to the execution of the will and in others closely related to undue influence" - See paragraphs 15 to 17.

Wills - Topic 541

Testamentary capacity - Evidence and proof - Doctrine of suspicious circumstances - In the probate application at bar, the New Brunswick Probate Court concluded on the evidence that there were suspicious circumstances in the preparation and execution of the will - This placed on the applicant "a great evidentiary burden. In these circumstances, the Court must scrutinize the evidence as to [the testator's] knowledge and approval of his will contents with great care ... It is upon [the applicant] who propounded the will of [the testator] ... to be his last will executed while having testamentary capacity, to bring forth evidence that [the testator] was of a disposing mind and memory and capable to comprehend on his own initiative and volition the essential elements of the will-making" - See paragraphs 82 and 83.

Wills - Topic 541

Testamentary capacity - Evidence and proof - Doctrine of suspicious circumstances - The testator (Burns) was 90 years old at the time of his death in 2005 - He had a long history of declining health, both physical and mental, and suffered from alcoholism - By 2001, he needed home care - By 2002, he had developed dementia - During his lifetime, Burns made a number of wills, including a will dated August 22, 2003 and March 31, 2004 - The 2003 will appointed his niece (Hare) as executrix and sole beneficiary of his estate - All other wills, including the 2004 will, appointed his nephew as executor and sole beneficiary - Hare applied to probate the 2003 will - The New Brunswick Probate Court dismissed the application - The frail condition of Burns, his physical and mental impairment, the significant change from the former wills, showed that his free will could have been overriden by coercion - The court concluded that there were "very serious suspicious circumstances" in the preparation of the will - On a balance of probabilities, Hare did not satisfy the conscience of the court that the 2003 will was the last will of a free and competent testator - See paragraphs 133 and 134.

Avocats et notaires - Cote 1560.3

Rapport avec le client - Obligation envers le client - Généralités - Capacité du client - [Voir Barristers and Solicitors - Topic 1560.3 ].

Avocats et notaires - Cote 1686

Rapport avec le client - Préparation de testaments - Obligation de vérifier la capacité du testateur - [Voir Barristers and Solicitors - Topic 1686 ].

Exécuteurs testamentaires et administrateurs - Cote 1037

Lettres d'homologation ou d'administration - Demande - Testaments multiples - [Voir Executors and Administrators - Topic 1037 ].

Testaments - Cote 534

Capacité testamentaire - Preuve - Fardeau de la preuve - Généralités - [Voir Wills - Topic 534 ].

Testaments - Cote 541

Capacité testamentaire - Preuve - Doctrine des circonstances prêtant à soupçon - [Voir Wills - Topic 541 ].

Cases Noticed:

Leger et al. v. Poirier, [1944] S.C.R. 152, refd to. [para. 14].

DeWitt Estate, Re (2004), 276 N.B.R.(2d) 53; 724 A.P.R. 53; 2004 NBPC 377 (T.D.), refd to. [para. 16].

Marsh Estate, Re (1990), 99 N.S.R.(2d) 221; 270 A.P.R. 221 (Prob. Ct.), refd to. [para. 16].

Brethour v. Law Society of British Columbia, [1951] 2 D.L.R. 138 (B.C.C.A.), refd to. [para. 120].

Weeks v. Weeks, [1955] 3 D.L.R. 704 (B.C.C.A.), refd to. [para. 121].

Passarello v. Passarello (1998), 64 O.T.C. 118 (Gen. Div.), refd to. [para. 122].

MacGregor v. Martin Estate, [1965] S.C.R. 757, refd to. [para. 130].

Counsel:

Avocats:

Allison Whitehead, Q.C., for the applicant;

John L. McAllister, for the respondent.

This probate application was heard on October 14-15, 2009, by Ouellette, J., of the New Brunswick Probate Court, Judicial District of Miramichi, who delivered the following decision dated March 12, 2010.