Lethbridge Estate v. McCormack et al., (2009) 287 Nfld. & P.E.I.R. 183 (NLTD)

• Judge: Handrigan, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: June 09, 2009
• Jurisdiction: Newfoundland and Labrador
• Citations: (2009), 287 Nfld. & P.E.I.R. 183 (NLTD)

Lethbridge Estate v. McCormack (2009), 287 Nfld. & P.E.I.R. 183 (NLTD);

    885 A.P.R. 183

MLB headnote and full text

Temp. Cite: [2009] Nfld. & P.E.I.R. TBEd. JN.010

James D. Hughes, as Executor of the Estate of Albert Lockyer Lethbridge (applicant) v. Dianne McCormack, Shirley Michelin, Gay Bradbury, John Matthews, Fraser Lethbridge and Gerald Lethbridge (caveators) and Wayne Green (intervenor)

(2007 05E 0811; 2009 NLTD 86)

Indexed As: Lethbridge Estate v. McCormack et al.

Newfoundland and Labrador Supreme Court

Trial Division

Handrigan, J.

June 9, 2009.

Summary:

A testator died in 2007, having never married and having no children. His will named Green, the husband of one of the testator's nieces, as his sole beneficiary. Eight persons (five other nieces or nephews, a cousin and two brothers-in-law) challenged the will on the basis of a lack of testamentary capacity or, alternatively, undue influence exerted by Green. They opposed an application to admit the will to probate.

The Newfoundland and Labrador Supreme Court, Trial Division, admitted the will to probate. The persons challenging the will failed to establish a lack of testamentary capacity or undue influence. The persons challenging the will were ordered to pay the costs of the lawyer/executor on a solicitor and own client basis (full indemnity) and Green's costs on a party-and-party basis.

Practice - Topic 7032.1

Costs - Party and party costs - Entitlement to party and party costs - Estate matters - [See Practice - Topic 7326 ].

Practice - Topic 7326

Costs - Costs in probate proceedings - Unsuccessful opposition to proof of will - The testator left his entire estate to one nephew-in-law to the exclusion of other nieces, nephews and their spouses (objectors) - The objectors opposed admission of the will to probate, challenging the will's validity on the grounds of lack of testamentary capacity and undue influence - The opposition was totally devoid of merit - The Newfoundland and Labrador Supreme Court, Trial Division, ordered that the objectors pay costs to the lawyer/executor on a solicitor and own client basis (full indemnity) - The lawyer had no personal interest in the outcome, nor could he benefit from it - It would be improper for him to incur any costs - The objectors were ordered to pay the beneficiary nephew-in-law's party and party costs - It would be inappropriate to order that the costs be payable out of the estate, as that would achieve collaterally what the objectors failed to do in their direct attack on the will - See paragraphs 113 to 122.

Practice - Topic 7803

Costs - Solicitor and his own client costs - Entitlement to - General - [See Practice - Topic 7326 ].

Wills - Topic 536

Testamentary capacity - Evidence and proof - Presumption of testamentary capacity - The Newfoundland and Labrador Supreme Court, Trial Division, stated that "1. The person propounding the will must prove on a balance of probabilities that the will was duly executed, that the testator knew and approved of what he was doing and had the testamentary capacity to do it. 2. If the propounder of the will proves that it was executed with the necessary formalities and that it was read over to or by a testator who appeared to understand it, the testator is presumed to have known and approved of its contents and to have had testamentary capacity. 3. Those attacking the will can rebut the presumption (of knowledge and approval and testamentary capacity) by raising evidence of suspicious circumstances and, if so, the propounder of the will must adduce evidence to prove that the testator knew and approved the contents of his will. 4. If the presumption is rebutted, the extent of the proof that the testator knew and approved the contents of his will is proportionate to the gravity of the suspicion which those attacking the will raised. 5. If those attacking the will do not raise suspicious circumstances, the presumption of knowledge and approval and testamentary capacity prevails and the will is valid and admitted to probate." - See paragraph 4.

Wills - Topic 541

Testamentary capacity - Evidence and proof - Doctrine of suspicious circumstances - [See Wills - Topic 536 ].

Wills - Topic 541

Testamentary capacity - Evidence and proof - Doctrine of suspicious circumstances - The testator died in 2007 at the age of 88, three years after making his will leaving his entire estate to Green, the husband of one of his nieces - All other nieces and nephews were excluded - The testator had infrequent contact with all of his relatives - He was a frugal, solitary man who never married, had no children, and lived a "strange" lifestyle - The excluded nieces and nephews challenged the validity of the will on the basis of a lack of testamentary capacity and undue influence exerted by Green - They painted a negative picture of the testator, attacking his intelligence, morality and capacity based on his lifestyle - They relied on the doctrine of suspicious circumstances, claiming that Green used his influential personality to overcome the testator's "inferior intellect" - The Newfoundland and Labrador Supreme Court, Trial Division, admitted the will to probate as valid - All of the formal execution requirements were met - The lawyer drafting the will was satisfied that the testator was competent and that he knew and approved of the contents of his will - It was notable that no family member pressured the testator to execute a will - The suggestion to do so came from the testator's bank - There was no evidence that Green knew that the testator was executing a will or that Green had any contact with the testator before the will was executed - There were no suspicious circumstances as to the preparation of the will, the testator's capacity to execute the will or to show that the testator's free will was overborne by acts of coercion or fraud - Although there was no cogent explanation as to why the testator chose Green as his only beneficiary, that did not go to capacity - The court noted that there was evidence that the testator was concerned with other relatives constantly bothering him about his money and telling him to spend it - The court opined that perhaps the testator decided to leave the money to Green, who he perceived to be frugal and good with money, like himself.

Wills - Topic 1504

Preparation and execution - General - Requirement of knowledge of contents - [See Wills - Topic 536 ].

Wills - Topic 1588

Preparation and execution - Formal validity - Evidence and proof - [See Wills - Topic 536 ].

Cases Noticed:

Hay Estate, Re, [1995] 2 S.C.R. 876; 183 N.R. 1; 82 O.A.C. 161; 7 E.T.R.(2d) 209; 125 D.L.R.(4th) 431; 1995 CarswellOnt 186, refd to. [para. 4, footnote 3].

Vout v. Hay - see Hay Estate, Re.

Cousins Estate, Re, [2001] O.T.C. 9; 37 E.T.R.(2d) 113; 2001 CarswellOnt 50 (Sup. Ct.), refd to. [para. 4, footnote 5].

Scott v. Cousins - see Cousins Estate, Re.

Moravian Church of Newfoundland and Labrador v. Newfoundland and Labrador et al. (2005), 250 Nfld. & P.E.I.R. 306; 746 A.P.R. 306; 22 C.P.C.(6th) 175; 2005 CarswellNfld 201; 2005 NLTD 123, refd to. [para. 5, footnote 6].

Barry v. Butlin (1838), 2 Moo P.C. 480, refd to. [para. 7, footnote 7].

Ostrander v. Black (1996), 12 E.T.R.(2d) 219; 1996 CarswellOnt 1323 (Gen. Div.), refd to. [para. 9, footnote 10].

Pike v. Stone et al. (1999), 179 Nfld. & P.E.I.R. 218; 546 A.P.R. 218; 29 E.T.R.(2d) 292 1999 CarswellNfld 191 (T.D.), refd to. [para. 111, footnote 21].

Van Alst v. Hunter, 5 Johnson N.Y. Ch. Rep. 549, refd to. [para. 111].

Banks v. Goodfellow (1870), L.R. 5 Q.B. 549 (Q.B.), refd to. [para. 111].

Power Estate, Re (2001), 205 Nfld. & P.E.I.R. 163; 615 A.P.R. 163; 42 E.T.R.(2d) 86; 2001 CarswellNfld 272 (T.D.), refd to. [para. 114, footnote 23].

Plant, Re, [1926] P. 139 (C.A.), refd to. [para. 114, footnote 23].

Mitchell v. Gard (1863), 164 E.R. 1280 (Prob. Ct.), refd to. [para. 114, footnote 23].

Authors and Works Noticed:

Brenner, Walter, Suspicious Circumstances, Undue Influence and the Burden of Proof (1992), 42 E.T.R. 63, generally [para. 7, footnote 9].

Macdonell, Sheard and Hull, Probate Practice (2nd Ed. 1972), pp. 346 to 347 [para. 114, footnote 23].

Schnurr, Brian A., Estate Litigation (2nd Ed. 1994), vol. 1, pp. 2-11 to 2-18 [para. 4, footnote 2].

Wexler, S.M., Annotation to Vout v. Hay, 1995 CarswellOnt 186, generally [para. 4, footnote 4].

Wright, Cecil A., Case and Comment (1938), 16 Can. Bar Rev. 405, generally [para. 7, footnote 8].

Counsel:

Glen W. Picco, for the applicant;

Todd Newhook, for the caveators;

Ronald Cole, for the intervenor.

This application was heard at Grand Bank, Nfld. and Labrador, before Handrigan, J., of the Newfoundland and Labrador Supreme Court, Trial Division, who delivered the following judgment on June 9, 2009.