Garwood v. Garwood Estate,

• Jurisdiction: Manitoba
• Judge: Steel, Hamilton and Freedman, JJ.A.
• Neutral Citation: 2007 MBCA 160
• Citation: (2007), 225 Man.R.(2d) 30 (CA),2007 MBCA 160,37 ETR (3d) 44,[2007] MJ No 457 (QL),225 Man R (2d) 30,(2007), 225 ManR(2d) 30 (CA),[2007] M.J. No 457 (QL),225 ManR(2d) 30,225 Man.R.(2d) 30
• Date: 16 May 2007
• Court: Court of Appeal (Manitoba)

Garwood v. Garwood Estate (2007), 225 Man.R.(2d) 30 (CA);

      419 W.A.C. 30

MLB headnote and full text

Temp. Cite: [2007] Man.R.(2d) TBEd. DE.055

Karen Garwood (applicant/respondent) v. James Hunter Garwood, as Executor of the Estate of Jessie Garwood (respondent/appellant)

(AI 07-30-06600)

James Hunter Garwood (applicant/appellant) v. James Hunter Garwood, as Executor of the Estate of Jessie Garwood (respondent/respondent)

(AI 07-30-06621; 2007 MBCA 160)

Indexed As: Garwood v. Garwood Estate

Manitoba Court of Appeal

Steel, Hamilton and Freedman, JJ.A.

December 13, 2007.

Summary:

Garwood's will named her son, James, and his wife, Karen, as residuary beneficiaries, provided that they were living together at the date of her death. James obtained the probate of the will in August 2004. Karen and James separated. In November 2005, James applied to set aside the grant of probate and to have the court require proof in solemn form of the will or permit him to probate an earlier will. Karen applied for an order requiring James to pass accounts.

The Manitoba Court of Queen's Bench, in a decision reported at 211 Man.R.(2d) 170, refused to set aside the grant of probate. The court ordered James to, inter alia, pass his accounts and to repay the estate $3,000 plus interest from the date on which he improperly withdrew the money. James appealed the orders.

The Manitoba Court of Appeal allowed the appeal from the refusal to revoke the grant of probate and referred the matter to the Queen's Bench for the necessary directions that there be a trial. The court also allowed the appeal from the judgment granted pursuant to Karen's application and left it to the Queen's Bench to determine whether to adjourn her application pending the disposition of the trial or to hear the application at the same time as the trial.

Practice - Topic 3076

Applications and motions - Applications - On affidavit evidence - Garwood's will named her son, James, and his wife, Karen, as residuary beneficiaries, provided that they were living together at the date of her death - James obtained the probate of the will in August 2004 - Karen and James separated - In November 2005, James applied to set aside the grant of probate and to have the court require proof in solemn form of the will or permit him to probate an earlier will - Karen, James and the Garwood's lawyer (Orlikow) filed affidavits - James attested that Garwood was legally blind when she executed the will and, given the numerous mistakes, she could not have read the will or have had it read to her in its entirely - Karen attested that, Garwood could read with a light and a magnifying glass - Orlikow attested that he was aware that Garwood had vision problems but she had told him that she could read - Orlikow attested that, inter alia, he had prepared the will as instructed by Garwood and he had reviewed and confirmed with her the contents of the will - During cross-examination on his affidavit, Orlikow stated that his statement in a letter to James that he had no recollection of meeting with Garwood had been incorrect - The applications judge refused to set aside the grant of probate - The Manitoba Court of Appeal allowed James' appeal - This was not "the clearest of cases" that would have entitled the applications judge to proceed on affidavit evidence - In light of the substantial dispute concerning Garwood's vision impairment and the troublesome evidence from Orlikow, the only realistic option was to have directed a trial - See paragraphs 46 to 58.

Wills - Topic 541

Testamentary capacity - Evidence and proof - Doctrine of suspicious circumstances - Garwood's will named her son, James, and his wife, Karen, as residuary beneficiaries, provided that they were living together at the date of her death - James obtained the probate of the will in August 2004 - Karen and James separated - In November 2005, James applied to set aside the grant of probate and to have the court require proof in solemn form of the will or permit him to probate an earlier will - James asserted that the will contained the wrong attestation clause because Garwood had been legally blind when she executed the will and, given the numerous mistakes, she could not have read the will or have had it read to her in its entirely - In refusing to set aside the grant of probate, an application judge held that the doctrine of suspicious circumstances did not apply because Karen had nothing to do with the will's preparation and therefore nothing suspicious transpired - The Manitoba Court of Appeal held that the applications judge erred in applying the doctrine so narrowly - James had not raised the issue of Garwood's mental capacity or undue influence or fraud, but was challenging the presumption of due execution - The doctrine applied to the issue of knowledge and approval of a will - See paragraphs 36 to 46.

Cases Noticed:

Homestead Properties (Canada) Ltd. v. Sekhri et al. (2007), 214 Man.R.(2d) 148; 395 W.AC. 148; 2007 MBCA 61, refd to. [para. 38].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 39].

Hay Estate, Re, [1995] 2 S.C.R. 876; 183 N.R. 1; 82 O.A.C. 161, consd. [para. 41].

Vout v. Hay - see Hay Estate, Re.

Hall Estate, Re (1988), 52 Man.R.(2d) 1 (C.A.), refd to. [para. 45].

Williams v. Evans et al., [1911-1913] All E.R. Rep. 957, refd to. [para. 48].

Blair Athol Farms Ltd. v. Black (1996), 112 Man.R.(2d) 16 (Q.B.), refd to. [para. 52].

Kim et al. v. Lakeview Hotel Development Inc. et al. (1997), 119 Man.R.(2d) 150 (Q.B.), refd to. [para. 52].

Keystone Colony of Hutterian Brethen et al. v. James Valley Colony of Hutterian Brethren et al. (1999), 135 Man.R.(2d) 130 (Q.B.), refd to. [para. 52].

Litz v. Litz et al. (1996), 114 Man.R.(2d) 224 (Q.B.), refd to. [para. 52].

Glaves (Gordon) Holdings Ltd. v. Care Corp. of Canada Ltd. et al. (1999), 121 O.A.C. 239 (Div. Ct.), affd. (2000), 133 O.A.C. 111 (C.A.), refd to. [para. 54].

Newcastle Recycling Ltd. et al. v. Clarington (Municipality) (2005), 204 O.A.C. 389; 16 M.P.L.R.(4th) 157 (C.A.), refd to. [para. 55].

Yoo et al. v. Kang, [2002] O.T.C. 774 (Sup. Ct.), refd to. [para. 56].

Verbonac Estate, Re (1997), 159 Sask.R. 299 (Q.B.), refd to. [para. 57].

Authors and Works Noticed:

Feeney, Thomas G., The Canadian Law of Wills (4th Ed. 2000) (Looseleaf Update), para. 3.1 [para. 43].

Tristram and Coote, Probate Practice (25th Ed. 1978) (Looseleaf), generally [para. 48].

Counsel:

J.B. Harvie, for the appellant;

S.L. Tod, for the respondent, K. Garwood.

These appeals were heard on May 16, 2007, before Steel, Hamilton and Freedman, JJ.A., of the Manitoba Court of Appeal. The judgment of the court was delivered by Hamilton, J.A., on December 13, 2007.