Field v. James, (2001) 151 B.C.A.C. 106 (CA)

JudgeRowles, Prowse and Finch, JJ.A.
CourtCourt of Appeal (British Columbia)
Case DateApril 09, 2001
JurisdictionBritish Columbia
Citations(2001), 151 B.C.A.C. 106 (CA);2001 BCCA 267

Field v. James (2001), 151 B.C.A.C. 106 (CA);

    249 W.A.C. 106

MLB headnote and full text

Temp. Cite: [2001] B.C.A.C. TBEd. MY.043

Nicholas James, Christine James, Deborah James, Victoria Heron also known as Vickie Sweeting, Lisa Sweeting, Gina Sweeting, Rosemary Leppard, Katherine Leppard and Elsa G. Field (plaintiffs/respondents) v. Cynthia Field, Vanson Field and Sylvia Tai also known as Sylvia Ho (defendants/appellants)

(V03478; 2001 BCCA 267)

Indexed As: Field v. James et al.

British Columbia Court of Appeal

Rowles, Prowse and Finch, JJ.A.

April 9, 2001.

Summary:

Field executed wills in March 1991 and August 1991. Two actions were brought: the first respecting the March will, the second respecting the August will. The actions were ordered to be heard together. In both actions there were allegations that Field lacked testamentary capacity and that undue influ­ence was imposed upon Field by members of his family.

The British Columbia Supreme Court, in a decision reported in 15 B.C.T.C. 341, held that the August 1991 will had been proved in solemn form and should be admitted to probate. Field had testamentary capacity at the time of its execution and there was no undue influence. It was unnecessary to con­sider the March will. The testator's sec­ond wife and adopted son appealed.

The British Columbia Court of Appeal, Rowles, J.A., dissenting, allowed the appeal and ordered a new trial.

Wills - Topic 303

Testamentary capacity - General principles - Tests for determining capacity - The British Columbia Court of Appeal, per Prowse, J.A., noted that one of the critical factors relevant to a testator's testamentary capacity was the ability to comprehend and recollect the nature and extent of his prop­erty - See paragraph 140.

Wills - Topic 531

Testamentary capacity - Evidence and proof - General - A trial judge admitted an August 1991 will to probate, having found that the testator had testamentary capacity at the time of its execution - The trial judge refused to permit a medical doctor whose report was in evidence to testify as to what he meant by the terms "the simplest of wills" or "a few simple disposi­tions" - The British Columbia Court of Appeal ordered a new trial, because the trial judge refused to explore relevant and potentially critical evidence which cast doubt on the testator's capacity - See paragraphs 107 to 148.

Cases Noticed:

Leger v. Poirier, [1944] S.C.R. 152; [1944] 3 D.L.R. 1, refd to. [para. 39].

Banks v. Goodfellow (1870), L.R. 5 Q.B. 549, refd to. [paras. 39, 140].

Boyse v. Rossborough, [1843-60] All E.R. Rep. 610 (H.L.), refd to. [para. 43].

Goodman Estate v. Geffen, [1991] 2 S.C.R. 353; 127 N.R. 241; 125 A.R. 81; 14 W.A.C. 81; 81 D.L.R.(4th) 211, refd to. [para. 44].

MacGregor v. Martin Estate, [1965] S.C.R. 757; 53 D.L.R.(2d) 126, refd to. [para. 44].

Love Estate v. Clements, [1993] B.C.J. No. 2058 (S.C.), refd to. [para. 44].

Wong v. Wong et al., [1998] B.C.T.C. Uned. 993 (S.C.), refd to. [para. 44].

O'Neil v. Royal Trust Co., [1946] S.C.R. 622; [1946] 4 D.L.R. 545, affing. (1945), 61 B.C.R. 544 (C.A.), refd to. [paras. 51, 77].

Craig v. Lamoureux, [1920] A.C. 349; 50 D.L.R. 10 (P.C.), refd to. [para. 52].

Hay Estate, Re, [1995] 2 S.C.R. 876; 183 N.R. 1; 82 O.A.C. 161; 125 D.L.R.(4th) 431, consd. [para. 53].

Vout v. Hay - see Hay Estate, Re.

Stein Estate v. Ship Kathy K, [1976] 2 S.C.R. 802; 6 N.R. 359; 62 D.L.R.(3d) 1, refd to. [para. 71].

Schwartz, Re (1970), 10 D.L.R.(3d) 15 (Ont. C.A.), refd to. [para. 76].

Price, Re, [1946] 2 D.L.R. 592 (Ont. C.A.), refd to. [para. 76].

Spence v. Price - see Price, Re.

Stirling Estate, Re (1993), 134 N.B.R.(2d) 17; 342 A.P.R. 17; 49 E.T.R. 262 (C.A.), refd to. [para. 77].

Marquis v. Weston - see Stirling Estate, Re.

Armitage Estate, Re (1990), 95 N.S.R.(2d) 91; 251 A.P.R. 91 (Prob. Ct.), affd. (1991), 106 N.S.R.(2d) 101; 288 A.P.R. 101 (C.A.), refd to. [para. 77].

Candido v. Ciardullo (1991), 45 E.T.R. 99 (B.C.S.C.), refd to. [para. 77].

Baker Estate v. Myhre (1995), 168 A.R. 248; 28 Alta. L.R.(3d) 428 (Q.B.), refd to. [para. 77].

Authors and Works Noticed:

Feeney, Thomas G., Canadian Law of Wills (4th Ed. 2000), § 2.5 [para. 77].

Counsel:

Robert T.C. Johnston, Q.C., for the appel­lants, Cynthia Field and Vanson Field;

John L. Finlay and Kathryn J. Chapman, for the respondents.

This appeal was heard on January 11, 2001, at Victoria, British Columbia, before Rowles, Prowse and Finch, JJ.A., of the British Columbia Court of Appeal.

The decision of the Court of Appeal was delivered at Vancouver, British Columbia, on April 9, 2001, and the follow­ing opinions were filed:

Rowles, J.A., dissenting - see paragraphs 1 to 106;

Prowse, J.A. - see paragraphs 107 to 144;

Finch, J.A. - see paragraphs 145 to 148.

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14 practice notes
  • Allart Estate et al. v. Allart, [2014] B.C.T.C. Uned. 2211 (SC)
    • Canada
    • British Columbia Supreme Court of British Columbia (Canada)
    • November 25, 2014
    ...capacity is a highly individualized inquiry and is a question of fact to be determined in all the circumstances: James v. Field , 2001 BCCA 267 at para. 51; Laszlo at para. 97". [31] If the will was duly executed in accordance with the requisite statutory formalities after being read o......
  • Wilton v. Koestlmaier, 2018 BCSC 1257
    • Canada
    • British Columbia Supreme Court of British Columbia (Canada)
    • July 26, 2018
    ...stroke, despite speech difficulty, difficulty swallowing and motor weakness, she remained cognitively intact. [167] In James v. Field, 2001 BCCA 267 the Court of Appeal recognized that the observation of a lay witness may carry as much weight as those of a [75] While recognizing the effects......
  • Moore v. Drummond, [2012] B.C.T.C. Uned. 1702
    • Canada
    • British Columbia Supreme Court of British Columbia (Canada)
    • November 15, 2012
    ...capacity does not depend on scientific or medical definitions and medical opinions are not necessarily determinative: Field v James , 2001 BCCA 267 at para 77; Baker Estate v Myhre (1995), 168 AR 248 at para 39. [39] The party seeking to prove a will must show that it is in fact the will of......
  • RMK v NK, 2020 ABQB 328
    • Canada
    • Alberta Court of Queen's Bench of Alberta (Canada)
    • May 21, 2020
    ...witnesses can be preferred to the evidence of medical witnesses with respect to determination of testamentary capacity: James v Field, 2001 BCCA 267 at para 77; Stewart v McLean, 2003 ABQB 96 at para 200; Sweetnam v Lesage, 2016 ONSC 4058 at para 802, upheld on appeal by 2017 ONCA 991, leav......
  • Request a trial to view additional results
14 cases
  • Wilton v. Koestlmaier, 2018 BCSC 1257
    • Canada
    • British Columbia Supreme Court of British Columbia (Canada)
    • July 26, 2018
    ...stroke, despite speech difficulty, difficulty swallowing and motor weakness, she remained cognitively intact. [167] In James v. Field, 2001 BCCA 267 the Court of Appeal recognized that the observation of a lay witness may carry as much weight as those of a [75] While recognizing the effects......
  • RMK v NK, 2020 ABQB 328
    • Canada
    • Alberta Court of Queen's Bench of Alberta (Canada)
    • May 21, 2020
    ...witnesses can be preferred to the evidence of medical witnesses with respect to determination of testamentary capacity: James v Field, 2001 BCCA 267 at para 77; Stewart v McLean, 2003 ABQB 96 at para 200; Sweetnam v Lesage, 2016 ONSC 4058 at para 802, upheld on appeal by 2017 ONCA 991, leav......
  • Chang Estate v. Chang, [2013] B.C.T.C. Uned. 976 (SC)
    • Canada
    • British Columbia Supreme Court of British Columbia (Canada)
    • June 3, 2013
    ...capacity is a highly individualized inquiry and is a question of fact to be determined in all the circumstances: James v. Field , 2001 BCCA 267 at para. 51; Laszlo at para. 197. [28] In certain circumstances, the propounder of the will, in discharging the burden of proof, is aided by a rebu......
  • Moore v. Drummond, [2012] B.C.T.C. Uned. 1702
    • Canada
    • British Columbia Supreme Court of British Columbia (Canada)
    • November 15, 2012
    ...capacity does not depend on scientific or medical definitions and medical opinions are not necessarily determinative: Field v James , 2001 BCCA 267 at para 77; Baker Estate v Myhre (1995), 168 AR 248 at para 39. [39] The party seeking to prove a will must show that it is in fact the will of......
  • Request a trial to view additional results