Kiel v. McKenzie, 2008 SKQB 80

• Judge: Gunn, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: February 20, 2008
• Jurisdiction: Saskatchewan
• Citations: 2008 SKQB 80;(2008), 328 Sask.R. 273 (QB)

Kiel v. McKenzie (2008), 328 Sask.R. 273 (QB)

MLB headnote and full text

Temp. Cite: [2008] Sask.R. TBEd. MR.015

Steven Kiel (applicant/defendant) v. Grace McKenzie and Nadine McKenzie (respondents) (plaintiffs)

(2006 Q.B. No. 1831; 2008 SKQB 80)

Indexed As: Kiel v. McKenzie

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

Gunn, J.

February 20, 2008.

Summary:

Wilma Kiel died in November 2006. Her son, Steven, challenged her will dated July 27, 1998, raising the possibility of undue influence and lack of testamentary capacity.

The Saskatchewan Court of Queen's Bench dismissed the application. The will was executed in accordance with the law. Wilma Kiel had testamentary capacity at the time of the execution of the will. The evidence was insufficient to establish undue influence respecting the will.

Editor's Note: for related cases see 273 Sask.R. 19 (Q.B.) and 302 Sask.R. 308; 411 W.A.C. 308 (C.A.).

Executors and Administrators - Topic 5550

Actions by and against representatives - Costs - Where payable by claimant - Wilma Kiel died in November 2006 - Her son, Steven, unsuccessfully challenged her will on the basis of undue influence and lack of testamentary capacity - The administrators of the estate sought costs - They noted that, if Steven had been successful in his application, his proportionate share of the estate would have been less under the will which immediately preceded the one challenged or under an intestacy - Also a judgment against Steven for $225,000 in favour of the estate for mismanaging and dissipating his mother's assets remained unsatisfied - The Saskatchewan Court of Queen's Bench awarded the administrators their costs to be taxed - See paragraphs 40 and 41.

Wills - Topic 412

Testamentary capacity - Mental disabilities - Disorder of the mind (incl. Alzheimer's disease) - Wilma Kiel died in November 2006 - Her son, Steven Kiel, challenged her will dated July 27, 1998, alleging lack of testamentary capacity - He alleged that Wilma suffered from Alzheimer's disease - In 2003, a certificate of finding of incompetence was issued respecting Wilma pursuant to the Mentally Disordered Persons Act - The Saskatchewan Court of Queen's Bench held that it was satisfied based on the evidence of the lawyer who prepared the will and Wilma's neurologist (Veloso), who saw her a number of times preceding and following the making of the will, that Wilma had testamentary capacity at the time of the execution of the will - The will was executed in accordance with the law - The lawyer deposed that he saw no reason to question her testamentary capacity - There were no suspicious circumstances surrounding the preparation of the will - Once Wilma was introduced to the lawyer, she remained alone in his office in order to give him instructions - The will was not executed in haste, but rather one week after the instructions had been given and was executed in the presence of the lawyer and his secretary - Although Veloso's reports referred to Wilma experiencing mild confusion and some forgetfulness, there was nothing which would indicate that Wilma did not understand her circumstances nor that she would not be in a position to give instructions to counsel - See paragraphs 14 to 31.

Wills - Topic 541

Testamentary capacity - Evidence and proof - Doctrine of suspicious circumstances - [See Wills - Topic 412 ].

Cases Noticed:

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

Bakken Estate, Re, [1992] 6 W.W.R. 615; 104 Sask.R. 67 (Q.B.), refd to. [para. 12].

Goodman Estate v. Geffen, [1991] 2 S.C.R. 353; 127 N.R. 241; 125 A.R. 81; 14 W.A.C. 81, refd to. [para. 13].

Vout v. Hay et al. - see Hay Estate, Re.

Hay Estate, Re, [1995] 2 S.C.R. 876; 183 N.R. 1; 82 O.A.C. 161, refd to. [para. 14].

Lamoureux v. Craig, [1919] 3 W.W.R. 1101 (P.C.), refd to. [para. 33].

Lamontagne Estate, Re (1996), 150 Sask.R. 85 (Q.B.), refd to. [para. 34].

Wingrove v. Wingrove (1885), 11 P.D. 81, refd to. [para. 35].

Authors and Works Noticed:

Macdonell, Sheard and Hull, Probate Practice (4th Ed. 1996), p. 45 [para. 35].

Counsel:

Steven Kiel, representing himself;

Richard B. Morris, Q.C., for the respondents, Grace McKenzie and Nadine McKenzie.

This application was heard before Gunn, J., of the Saskatchewan Court of Queens' Bench, Judicial Centre of Regina, who delivered the following judgment on February 20, 2008.