Digest: Richardson v Hooker Estate, 2018 SKQB 201

• Date: July 18, 2018

Reported as: 2018 SKQB 201

Docket Number: SUR 585/14 JCR , QB17586

Court: Court of Queen's Bench

Date: 2018-07-18

Judges:

• Barrington-Foote

Subjects:

• Will and Estates � Capacity

Digest: The applicant challenged the validity of her late mother�s will, executed in October 2008. She applied for an order pursuant to Queen�s Bench rule 16-47 revoking the grant of letters probate and that the will be proved in solemn form under rule 16-46. The will named the respondent as executor. He, one of the applicant�s brothers, obtained the grant and distributed the assets amongst the named beneficiaries after they had provided releases. The applicant refused to provide a release and when told by the respondent that he was holding her funds and that she should contact him to receive payment, she filed this application. In her affidavit the applicant deposed that her mother had suffered from dementia after 2005 and therefore, she lacked testamentary capacity to make the October 2008 will. She stated that her mother had been diagnosed with dementia in 2007 and 2008 by her doctor and it was evident in such things as her mother�s inability to prepare a meal after 2006. The applicant submitted her mother�s medical records from a period of hospitalization from December 2008 to April 2009 that confirmed the doctor�s diagnosis. Based on this evidence, the applicant argued that her mother lacked testamentary capacity when she executed the will. The respondent denied that the testatrix was incompetent when she executed the 2008 will. The lawyer who had drafted the will deposed that she met the testatrix a number of times during 2007 and 2008 and found her coherent and believed that she had the capacity to sign the document.
HELD: The application was denied. The court found that it was clear that the testatrix was suffering from dementia when she gave instruction for the preparation of the 2008 will, but evidence of dementia and cognitive decline is not enough. The question was the extent to which the evidence tends to prove the impact of the testator�s cognitive issues on the abilities that make up testatmentary capacity at the relevant time. The evidence submitted by the applicant did not describe the testatrix�s behaviour close in time to when she gave instructions for and then signed the will. The respondent�s evidence and in particular, the affidavit of the testatrix�s lawyer, was...