Lamontagne Estate, Re, (1996) 150 Sask.R. 85 (QB)

• Judge: Krueger, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: October 03, 1996
• Jurisdiction: Saskatchewan
• Citations: (1996), 150 Sask.R. 85 (QB)

Lamontagne Estate, Re (1996), 150 Sask.R. 85 (QB)

MLB headnote and full text

Raymond Lamontagne (plaintiff) v. Myrna Lamontagne (formerly Myrna Burrows) (defendant)

(1994 Q.B.S. No. 130)

Indexed As: Lamontagne Estate, Re

Saskatchewan Court of Queen's Bench

Judicial Centre of Prince Albert

Krueger, J.

October 3, 1996.

Summary:

Steven Lamontagne made a will leaving 60% of his property to his father Raymond Lamontagne, 10% to his mother Myrna Lamontagne and 30% to be divided equally between his brother and sister. Raymond and Myrna had separated and were involved in matrimonial property proceedings when the will was made. After Steven died, Myrna filed a caveat preventing the issuance of letters probate in Steven's estate. Raymond applied for letters probate in common form. The application was dismissed because of Myrna's caveat. Raymond then applied to have the issues resolved. A judge directed that there be a trial with Raymond as the plaintiff and Myrna as the defendant. The issues to be resolved were: (a) Raymond was required to prove the will in solemn form; (b) Myrna was required to prove undue influence exerted on Steven by Raymond.

The Saskatchewan Court of Queen's Bench held that Steven had testamentary capacity and that he had not been subjected to undue influence from Raymond. The will was proven in solemn form and the court issued letters probate.

Wills - Topic 305

Testamentary capacity - General principles - Requirement that testator understand what is being done - On December 18, 1990, Steven Lamontagne, an 18 year-old quadriplegic mature beyond his years and living with his father, made a will leaving only 10% of his property to his mother toward whom he had a "cold" attitude following the collapse of his parents' mar­riage in 1988 - Steven's assets consisted mainly of a $1,000,000 settlement follow­ing a 1989 accident that made him a quadriplegic - Steven died in 1994 - The Saskatchewan Court of Queen's Bench issued letters probate and held "that Steven understood the nature of his acts and their effects. He recognized the extent of his property and the persons whom he should consider in his will. Steven was also of sound mind, memory and understanding ..." - See paragraphs 20 to 22, 29 to 39.

Wills - Topic 541

Testamentary capacity - Evidence and proof - Doctrine of suspicious circum­stances - On December 18, 1990, Steven Lamontagne, an 18 year-old quadriplegic mature beyond his years and living with his father on a farm, made a will leaving only 10% of his property to his mother toward whom he had a "cold" attitude following the collapse of his parents' mar­riage in 1988 - Steven's assets consisted mainly of a $1,000,000 settlement follow­ing a 1989 accident that made him a quadriplegic - Steven died in 1994 - The mother alleged that the father exerted undue influence on Steven - Suspicious circumstances included: (a) matrimonial property dispute respecting the farm; (b) Steven's age, handicap and dependence on his father; (c) discussions between Steven and his father about making a will - The Saskatchewan Court of Queen's Bench dismissed the mother's allegations - See paragraphs 24, 25, 28, 40 to 46.

Wills - Topic 1704

Preparation and execution - Undue influ­ence - What constitutes - General - [See Wills - Topic 541 ].

Cases Noticed:

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. 21].

Vout v. Hay - see Hay Estate, Re.

Banks v. Goodfellow (1870), L.R. 5 Q.B. 549 (Eng.), refd to. [para. 26].

Sample Estate, Re (1955), 15 W.W.R.(N.S.) 193 (Sask. C.A.), refd to. [para. 27].

Topp Estate, Re; Bussiere v. Wilson (1983), 27 Sask.R. 55 (Surr. Ct.), refd to. [para. 33].

Statutes Noticed:

Queen's Bench Rules (Sask.) - see Rules of Court (Sask.), Queen's Bench Rules.

Rules of Court (Sask.), Queen's Bench Rules, rule 726, rule 729, rule 730, rule 731 [para. 19].

Authors and Works Noticed:

Macdonnell and Sheard, Probate Practice (2nd Ed.), p. 279 [para. 29].

Counsel:

R. Mills, Q.C., for the plaintiff;

C. Cuelenaere, for the defendant.

This case was heard by Krueger, J., of the Saskatchewan Court of Queen's Bench, who delivered the following decision on October 3, 1996.