Digest: Carlson Estate, Re, 2018 SKQB 196

• Date: July 18, 2019

Reported as: 2018 SKQB 196

Docket Number: QB17582 , SUR 144/17 JCY|SUR 153/17 JCY

Court: Court of Queen's Bench

Date: 2019-07-18

Judges:

• Brown

Subjects:

• Wills and Estate � Testamentary Capacity
• Wills and Estates � Undue Influence

Digest: The applicant sought an order directing a trial to prove the will of his deceased mother in solemn form and a trial to determine whether there was undue influence in the execution. The testatrix died in 2017. In her will, executed in May 2011, she left the bulk of her estate to the respondent and made him executor. In an earlier will executed in 1975, the testatrix left her property to be divided equally between all her children, should her husband predecease her. When the respondent proceeded to probate the 2011 will, the applicant learned that the will had changed substantially and brought this application. His position regarding the testatrix�s competency was based upon the drastic change in the disposition of her property in 2011 and the fact that the respondent had become very involved with their mother around the time of the new will. He filed information from a neurologist who examined the testatrix in October 2012 and diagnosed her as having Parkinson�s disease and related mild dementia. The lawyer who had attended upon the testatrix on two occasions to draft two codicils to her 1975 will in 1999 and 2001 and in 2011 to prepare her new will, deposed that the respondent accompanied the testatrix and that she gave him oral instructions whereas in 1999 and 2001, the testatrix had provided handwritten instructions. The lawyer stated the testatrix was of sound mind, knew who her children were and the extent of her property. The testatrix�s sister-in-law deposed that the testatrix became more dependent on others as she aged and was more easily influenced as a result. The affiant stated that she witnessed the respondent demanding that the testatrix sign a document without allowing her to read it. She observed the testatrix would often do what he said even if she didn�t agree with it or fully understand the consequences.
HELD: The application to have the will proved in solemn form based on the alleged incompetency of the testatrix was dismissed. The application for a trial of the issue of whether undue influence was exercised over the testatrix was allowed. With regard to the testatrix�s competence, the court found that there were suspicious circumstances because the 2011 will...