Digest: Kot v Kot, 2018 SKQB 338

• Date: December 03, 2018

Reported as: 2018 SKQB 338

Docket Number: QB18322 , QBG 993/17 JCR

Court: Court of Queen's Bench

Date: 2018-12-03

Judges:

• McMurtry

Subjects:

• Civil Procedure � Affidavit Evidence � Admissibility � Interlocutory Applications
• Civil Procedure � Affidavit Evidence � Leave to File Supplementary Affidavit
• Civil Procedure � Queen�s Bench Rule 13-30, Rule 16-47, Rule 16-48
• Wills and Estates � Probate � Revoke
• Wills and Estates � Wills � Proof in Solemn Form
• Wills and Estates � Wills � Undue Influence

Digest: The applicant was the spouse of the deceased, who left a partially handwritten will dated August 2014, when he died in September 2015. The will named three executors: the applicant and his two brothers, the respondents. Letters probate were granted in December 2015 based on evidence from all three executors that the will was the deceased�s last will and testament. All three named executors were granted the right to administer the estate. The applicant sought an order revoking probate pursuant to Rule 16-47 of The Queen�s Bench Rules. She also implicitly sought proof of the will in solemn form, pursuant to Rule 16-48. The applicant argued that the will was not the deceased�s last will and testament because the deceased had revoked the will by destroying it just prior to his death. She argued that the deceased was unduly influenced by the respondents in the execution of his will. The applicant and deceased were married in 1997. One brother, R., and the deceased farmed on each other�s farm land without compensation. The other brother, C., farmed on his own and was witness to the will. He indicated that the deceased prepared the will on his own and then took it to C. and another brother to witness his signature. C. also said that the applicant never had concern with the will�s validity before the application. The will provided R. an option to purchase the land. According to C., the deceased wanted to protect R.�s ability to continue to farm after his death. R. said that the deceased had shown him an unsigned copy of the will, indicating that he was worried about his health. R. said that he had the original will for a year, at which time, the deceased gave him a copy and took the original. The applicant said that the deceased told her that he was going to see a lawyer about a new will after retrieving the original from R. The applicant took the original will, unbeknownst to the deceased, and substituted it with a copy....