Chrustie Estate, Re, 2015 MBQB 25

JudgeHanssen, J.
CourtCourt of Queen's Bench of Manitoba (Canada)
Case DateFebruary 06, 2015
JurisdictionManitoba
Citations2015 MBQB 25;(2015), 314 Man.R.(2d) 122 (QB)

Chrustie Estate, Re (2015), 314 Man.R.(2d) 122 (QB)

MLB headnote and full text

Temp. Cite: [2015] Man.R.(2d) TBEd. FE.038

In The Matter Of: The Estate of Martin David Chrustie, Deceased

Myrna Leah Eakin and Maxine Lynn Chrustie (also known as Maxine Lynn Hancock) (applicants) v. Robert David Chrustie, Bruce David Chrustie, Chelsea Dawn Eakin, Cassidy Jade Eakin and Cody Bruce Eakin (respondents)

Bruce David Chrustie (cross-applicant) v. Myrna Leah Eakin and Maxine Lynn Chrustie (cross-respondents)

(PR 10-01-86124; 2015 MBQB 25)

Indexed As: Chrustie Estate, Re

Manitoba Court of Queen's Bench

Winnipeg Centre

Hanssen, J.

February 6, 2015.

Summary:

The testator had four children. In 2003, he was diagnosed with a progressive degenerative illness. In 2005, the testator executed a will under which the residue of his estate was divided among three of his children. The youngest, Bruce, from whom the testator had become estranged, was specifically excluded. In 2007, the testator executed a new will with similar provisions, specifically excluding Bruce. In 2008, the testator executed a codicil regarding his life insurance that mistakenly referred to the 2005 will, rather than the 2007 will. In March 2009, the testator told his wife that he wanted to change his will to include Bruce. The testator and Bruce were reunited and reconciled, secretly from the other children. A codicil was executed (the 2009 codicil) providing a bequest of $30,000 to Bruce. The testator died in 2010. Bruce sought to have the 2007 will and the 2009 codicil admitted to probate. Bruce asserted that the 2008 codicil was a nullity.

The Manitoba Court of Queen's Bench admitted the 2007 will and the 2009 codicil to probate. The 2008 codicil was moot and was not admitted to probate.

Wills - Topic 21

Testamentary instruments - Codicils - General - The testator had four children - In 2003, he was diagnosed with a progressive degenerative illness - In 2005, the testator executed a will under which the residue of his estate was divided among three of his children - The youngest, Bruce, from whom the testator had become estranged, was specifically excluded - In 2007, the testator executed a new will with similar provisions, specifically excluding Bruce - In 2008, the testator executed a codicil regarding his life insurance that mistakenly referred to the 2005 will, rather than the 2007 will - In March 2009, the testator told his wife that he wanted to change his will to include Bruce - The testator and Bruce were reunited and reconciled, secretly from the other children - A codicil was executed (the 2009 codicil) providing a bequest of $30,000 to Bruce - The testator died in 2010 - Bruce sought to have the 2007 will and the 2009 codicil admitted to probate - He asserted that the 2008 codicil was a nullity because it referred to the 2005 will that had been revoked by the 2007 will - The Manitoba Court of Queen's Bench did not agree - It was the duty of the court to give effect, if possible, to the testator's wishes - The court would have been able to give effect to the provisions in the 2008 codicil, notwithstanding the error - However, the 2008 codicil was effectively revoked when the 2009 codicil was made - The 2008 codicil was moot and was not admitted to probate - See paragraphs 58 to 61.

Wills - Topic 412

Testamentary capacity - Mental disabilities - Disorder of the mind (incl. Alzheimer's disease) - The testator had four children - In 2003, he was diagnosed with a progressive degenerative illness - In 2007, the testator executed a will under which the residue of his estate was divided among three of his children - The youngest, Bruce, from whom the testator had become estranged, was specifically excluded - In March 2009, the testator told his wife that he wanted to change his will to include Bruce - The testator and Bruce were reunited and reconciled, secretly from the other children - A codicil was executed, providing a bequest of $30,000 to Bruce - The testator died in 2010 - Bruce sought to have the will and the codicil admitted to probate - The Manitoba Court of Queen's Bench found that the codicil was valid - In spite of his medical condition, the testator retained sufficient mental capacity to make a valid codicil in 2009 - The testamentary decision was very simple: whether or not to treat Bruce like the other children - The court rejected the expert's opinion that signing the codicil would have been beyond the testator's ability - That opinion was based on incomplete and inaccurate information - The lay persons who were familiar with the testator and had interacted with him at the time convinced the court that the testator had the required capacity - See paragraphs 35 to 53.

Wills - Topic 531

Testamentary capacity - Evidence and proof - General - [See Wills - Topic 412 ].

Wills - Topic 534

Testamentary capacity - Evidence and proof - Onus of proof - General - The testator had four children - In 2003, he was diagnosed with a progressive degenerative illness - In 2005, the testator executed a will under which the residue of his estate was divided among three of his children - The youngest, Bruce, from whom the testator had become estranged, was specifically excluded - In 2007, the testator executed a new will with similar provisions, specifically excluding Bruce - In 2008, the testator executed a codicil regarding his life insurance that mistakenly referred to the 2005 will, rather than the 2007 will - In March 2009, the testator told his wife that he wanted to change his will to include Bruce - The testator and Bruce were reunited and reconciled, secretly from the other children - A codicil was executed (the 2009 codicil) providing a bequest of $30,000 to Bruce - The testator died in 2010 - Bruce sought to have the 2007 will and the 2009 codicil admitted to probate - The Manitoba Court of Queen's Bench stated that, given the nature of the testator's illness, the secrecy regarding Bruce's visit and surrounding the 2009 codicil's execution, the burden of proving testamentary capacity and knowledge and approval clearly rested on Bruce - See paragraphs 33 and 34.

Wills - Topic 539

Testamentary capacity - Evidence and proof - Lay opinions - Weight to be given to - [See Wills - Topic 412 ].

Wills - Topic 540

Testamentary capacity - Evidence and proof - Expert opinions - Weight to be given to - [See Wills - Topic 412 ].

Wills - Topic 1504

Preparation and execution - General - Requirement of knowledge of contents - The testator had four children - In 2003, he was diagnosed with a progressive degenerative illness - In 2007, the testator executed a will under which the residue of his estate was divided among three of his children - The youngest, Bruce, from whom the testator had become estranged, was specifically excluded - In March 2009, the testator told his wife that he wanted to change his will to include Bruce - The testator and Bruce were reunited and reconciled, secretly from the other children - A codicil was executed, providing a bequest of $30,000 to Bruce - The testator died in 2010 - Bruce sought to have the will and the codicil admitted to probate - The Manitoba Court of Queen's Bench found that the codicil was valid - The testator knew and approved of the contents of the codicil when he signed it - The testator's lawyer had conducted a careful, meticulous review of the original will and the codicil - See paragraph 54.

Wills - Topic 1704

Preparation and execution - Undue influence - What constitutes - General - The testator had four children - In 2003, he was diagnosed with a progressive degenerative illness - In 2007, the testator executed a will under which the residue of his estate was divided among three of his children - The youngest, Bruce, from whom the testator had become estranged, was specifically excluded - In March 2009, the testator told his wife that he wanted to change his will to include Bruce - The testator and Bruce were reunited and reconciled, secretly from the other children - A codicil was executed, providing a bequest of $30,000 to Bruce - The testator died in 2010 - Bruce sought to have the will and the codicil admitted to probate - The Manitoba Court of Queen's Bench found that the codicil was valid - The court rejected the argument that the testator's wife had exercised undue influence over the testator - The idea to include Bruce as a beneficiary originated with the testator - The wife merely facilitated it - Her sole motivation was to ensure that the testator's wishes were respected - See paragraphs 55 to 57.

Wills - Topic 5001

Construction - General - General principles - [See Wills - Topic 21 ].

Cases Noticed:

Hay Estate, Re, [1995] 2 S.C.R. 876; 183 N.R. 1; 82 O.A.C. 161, refd to. [para. 33].

Vout v. Hay - see Hay Estate, Re.

Banks v. Goodfellow (1869-70), L.R. 5 Q.B. 549, refd to. [para. 35].

Breidenbach Estate, Re (1956), 19 W.W.R.(N.S.) 109 (Man. C.A.), refd to. [para. 36].

McKay, Re; Cromie et al. v. Cromie et al., [1953] 3 D.L.R. 224 (B.C.S.C.), refd to. [para. 58].

Squire Estate, Re, [1989] B.C.J. No. 246 (S.C.), refd to. [para. 58].

O'Donovan v. O'Donovan et al., [2009] O.T.C. Uned. S08 (Sup. Ct.), refd to. [para. 58].

Authors and Works Noticed:

Bryant, Alan W., Lederman, Sidney N., and Fuerst, Michelle K., Sopinka, Lederman & Bryant: The Law of Evidence in Canada (3rd Ed. 2009), p. 784, §12.31 [para. 43].

Counsel:

Anita L. Southall and Aaron W. Challis, for the applicants;

J. Edward Crane and Ian B. Scarth, for the respondent, B.D. Chrustie.

These applications were heard by Hanssen, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on February 6, 2015.

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1 practice notes
  • Tecter v. Reimer Estate,
    • Canada
    • Court of Queen's Bench of Manitoba (Canada)
    • June 4, 2021
    ...impairment, the authorities make clear testamentary capacity does not require perfect cognition.  See Re Chrustie Estate, 2015 MBQB 25 (CanLII) at para. 36.  There is flexibility for a testator's mental capacity between no cognitive impairment whatsoever and not having s......
1 cases
  • Tecter v. Reimer Estate,
    • Canada
    • Court of Queen's Bench of Manitoba (Canada)
    • June 4, 2021
    ...impairment, the authorities make clear testamentary capacity does not require perfect cognition.  See Re Chrustie Estate, 2015 MBQB 25 (CanLII) at para. 36.  There is flexibility for a testator's mental capacity between no cognitive impairment whatsoever and not having s......

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