Digest: Olson v Skarsgard Estate, 2018 SKCA 64

DateAugust 18, 2019

Reported as: 2018 SKCA 64

Docket Number: CACV 3096 , CA17174

Court: Court of Appeal

Date: 2019-08-18

Judges:

  • Richards
  • Caldwell
  • Herauf

Subjects:

  • Civil Procedure � Court of Appeal Rules, Rule 59
  • Wills and Estates � Testamentary Capacity � Appeal
  • Civil Procedure � Queen�s Bench Rules, Rule 16-46

Digest: The appellant appealed from the decision of a Queen�s Bench chambers judge that discharged a caveat registered by the appellant against title to certain lands owned by her deceased brother (the testator) and ordered the immediate issuance of letters probate in response to the testator�s spouse�s (the respondent) application as his personal representative. The appellant also sought to have the respondent prove the testator�s will in solemn form. The testator had married the respondent in March 2016 and two weeks later made a will under which he appointed the respondent as executor and sole beneficiary. He died in May 2016. Following his death, the respondent applied for letters probate and, under Queen�s Bench rule 16-43, for a direction that the appellant had not provided a sufficient basis to have the will proven in solemn form. The appellant had argued in chambers that the respondent was in a caregiver relationship but not a spousal relationship with the testator and that the respondent�s daughter was not the testator�s biological child, regardless of his acknowledgement of her. She also alleged that the testator suffered from a cognitive impairment at the time he made his will. The respondent adduced evidence, such as affidavits of the lawyer who had drafted the will, averring that he had no concerns about the testator�s capacity, and of the pastor, who deposed that he had performed the marriage ceremony. As a result, the chambers judge rejected the appellant�s allegations. He found that the appellant did not have standing to challenge the will and that there was no credible evidence upon which to conclude that the appellant had raised a triable issue regarding testamentary capacity. The judge awarded costs to the respondent on a solicitor-client basis. The grounds of appeal were that the judge erred in: 1) ruling that the appellant lacked standing to register a caveat; 2) finding that there was no genuine issue to be tried as to the validity of the will; and 3) awarding solicitor-client costs. As a preliminary matter, the appellant applied to adduce fresh evidence on the appeal in support of the allegations...

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