Kapacila Estate, Re, 2010 SKCA 85

• Judge: Klebuc, C.J.S., Lane and Richards, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: February 11, 2010
• Jurisdiction: Saskatchewan
• Citations: 2010 SKCA 85;(2010), 359 Sask.R. 84 (CA)

Kapacila Estate, Re (2010), 359 Sask.R. 84 (CA);

    494 W.A.C. 84

MLB headnote and full text

Temp. Cite: [2010] Sask.R. TBEd. JL.018

Anne Otto (appellant/respondent) v. Lillian Ryhorski, Executrix of the Estate of Alice Kapacila (respondent/applicant)

(No. 1806; 2010 SKCA 85)

Indexed As: Kapacila Estate, Re

Saskatchewan Court of Appeal

Klebuc, C.J.S., Lane and Richards, JJ.A.

July 5, 2010.

Summary:

The executrix of an estate sought an order that the deceased's will be proved in solemn form. One of the deceased's nieces (Otto) had filed a caveat opposing the grant of probate to the executrix on the ground that the deceased lacked testamentary competence at the time of making her will.

The Saskatchewan Court of Queen's Bench, in a decision reported at 340 Sask.R. 79, held that there was no genuine issue to be tried respecting the issue of testamentary capacity. The deceased possessed the requisite testamentary capacity. The court directed that the caveat registered against the will be vacated forthwith and that the will be admitted for probate. Otto appealed.

The Saskatchewan Court of Appeal, Lane, J.A., dissenting, allowed the appeal, set aside the order below, and ordered that the will be proven in solemn form.

Editor's Note: for a related case involving these parties see 302 Sask.R. 226; 411 W.A.C. 226 (C.A.).

Executors and Administrators - Topic 1139

Grant of probate or letters of administration - Proof of will in solemn form - Practice - The Saskatchewan Court of Appeal stated that "The hearing conducted to determine whether a challenged will should be proven in solemn form is often called the 'first hearing' and the trial following the order requiring a will to be proven in solemn form is often called the 'second hearing' ... The clear purpose of the 'first hearing' is to weed out challenges that do not raise a genuine issue and thereby avoid unwarranted delays in the distribution of an estate. Moreover, depletion of an estate by legal costs can be substantially avoided by not allowing the recovery out of the estate of litigation expenses incurred by a party who advanced claims that did not raise a genuine issue to be tried. Thus, the first hearing is not intended to indirectly become a full 'paper trial' involving lengthy affidavits, reply affidavits, multiple cross-examinations on affidavits, or the presentation of extensive expert evidence. Rather, the procedure contemplates the challenger adducing or pointing 'to some evidence which if accepted at trial would tend to negative testamentary capacity' ... If a genuine issue to be tried is established, then an order directing the trial of the issue would be appropriate unless the propounder of the will by unconditional evidence successfully answers the challenge and affirms positively the capacity of the maker ..." - See paragraphs 22 and 27.

Executors and Administrators - Topic 1139

Grant of probate or letters of administration - Proof of will in solemn form - Practice - The executrix of an estate sought an order that the deceased's will be proved in solemn form - One of the deceased's nieces (Otto) had filed a caveat opposing the grant of probate to the executrix on the ground that the deceased lacked testamentary competence at the time of making her will - A chambers judge held that there was no genuine issue to be tried respecting the issue of testamentary capacity - He concluded, inter alia, that "... the evidence affirming testamentary capacity is far more compelling than the evidence which would tend to negate testamentary capacity, and accordingly, I am of the view that I do not find there is a genuine issue to be tried respecting the issue of testamentary capacity of Alice Kapacila at the time of the making of her last will and testament ..." - Otto appealed - The Saskatchewan Court of Appeal held that the chambers judge erred in applying the genuine interest test for determining whether the will should be proven in solemn form - He did not address whether the evidence adduced or pointed to by Otto, if accepted at trial, would tend to negate the testatrix's testamentary capacity - Nor was it open for him to find that the executrix by uncontradicted evidence fully met the challenge advanced by Otto and affirmed positively the testamentary capacity of the testator - Instead, he attempted to weigh the conflicting evidence by the parties, which was not the role of a chambers judge in the first hearing - See paragraphs 28 and 29.

Executors and Administrators - Topic 1140

Grant of probate or letters of administration - Proof of will in solemn form - Evidence and proof - The executrix of an estate sought an order that the deceased's will be proved in solemn form - One of the deceased's neices (Otto) had filed a caveat opposing the grant of probate to the executrix on the ground that the deceased lacked testamentary competence at the time of making her will - The deceased was 90 years old when she executed the will on January 5, 2000 - Otto relied on various medical reports and commentaries which referred to the testator as having very poor short-term memory, impaired cognition, and eventually Alzheimer's disease - Otto also relied on a 2003 court decision involving the parties, in which Dovell, J., found that, from the fall of 1998 onwards the testator suffered from a progressive mental infirmity and that the testator lacked the mental capacity to gift $18,000 to Otto or to create the trusts alleged by Otto - The executrix relied on the affidavits of two senior experienced lawyers who met with the deceased when she executed the will and deposed that the deceased possessed testamentary capacity - A chambers judge held that there was no genuine issue to be tried respecting the issue of testamentary capacity - The Saskatchewan Court of Appeal allowed Otto's appeal and ordered that the will be proven in solemn form - The evidence before Dovell, J., and her findings concerning the testator's diminished mental capacity created a genuine issue to be tried - The executrix failed to address in her affidavit matters relevant to the testator's testamentary capacity - The executrix had withheld a considerable amount of information from the lawyer who prepared the will, which, if he had known, might have led him to further questioning of the testator in order to ascertain whether she had the requisite mental capacity - See paragraphs 31 to 49.

Executors and Administrators - Topic 1140

Grant of probate or letters of administration - Proof of will in solemn form - Evidence and proof - [See both Executors and Administrators - Topic 1139 ].

Wills - Topic 302

Testamentary capacity - General principles - What constitutes - [See first Executors and Administrators - Topic 1140 ].

Wills - Topic 409

Testamentary capacity - Mental disabilities - Confused state of mind - [See first Executors and Administrators - Topic 1140 ].

Wills - Topic 412

Testamentary capacity - Mental disabilities - Disorder of the mind (incl. Alzheimer's disease) - [See first Executors and Administrators - Topic 1140 ].

Cases Noticed:

Royal Trust Corp. of Canada v. Ritchie - see Ritchie Estate, Re.

Ritchie Estate, Re (2007), 293 Sask.R. 238; 397 W.A.C. 238; 2007 SKCA 64, leave to appeal refused [2007] 3 S.C.R. xiv; 383 N.R. 391; 324 Sask.R. 317; 451 W.A.C. 317, refd to. [paras. 22, 59].

Dieno (Inez) Estate v. Dieno (Jacob) Estate, [1996] 10 W.W.R. 375; 147 Sask.R. 14 (Q.B.), refd to. [paras. 22, 63].

Quaintance Estate, Re (2006), 380 A.R. 160; 363 W.A.C. 160; 56 Alta. L.R.(4th) 6; 2006 ABCA 47, refd to. [para. 24].

Ungerman (Irving) Ltd. et al. v. Galanis and Haut (1991), 50 O.A.C. 176; 83 D.L.R.(4th) 734 (C.A.), refd to. [para. 26].

Schwartz, Re (1970), 10 D.L.R.(3d) 15 (Ont. C.A.), affd. [1972] S.C.R. 150, refd to. [para. 33].

Boughton v. Knight, [1861-1873] All E.R. Rep. 40, refd to. [para. 35].

Beal v. Henri, [1951] 1 D.L.R. 260 (Ont. C.A.), refd to. [para. 36].

Baker Estate v. Myhre, [1995] 6 W.W.R. 410; 168 A.R. 248 (Q.B.), refd to. [para. 36].

Guran et al. v. Brunton Estate (2009), 332 Sask.R. 149; 2009 SKQB 136, refd to. [para. 61].

Culbert Estate, Re (2006), 286 Sask.R. 180; 2006 SKQB 454, refd to. [para. 61].

Authors and Works Noticed:

Feeney, Thomas G., The Canadian Law of Wills (4th Ed. 2000) (Looseleaf), § 2.6 [para. 34].

Halsbury's Laws of Canada: Wills and Estates (2007), generally [para. 36].

Counsel:

Henry R. Kloppenburg, Q.C., for the appellant/respondent;

Deidre L. Aldcorn, for the respondent/applicant.

This appeal was heard on February 11, 2010, by Klebuc, C.J.S., Lane and Richards, JJ.A., of the Saskatchewan Court of Appeal. The decision of the court was delivered on July 5, 2010, when the following opinions were filed:

Klebuc, C.J.S. (Richards, J.A., concurring) - see paragraphs 1 to 49;

Lane, J.A., dissenting - see paragraphs 50 to 73.