McKean Estate, Re, (2000) 224 N.B.R.(2d) 321 (CA)

• Judge: Ryan, Turnbull and Larlee, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: November 23, 1999
• Jurisdiction: New Brunswick
• Citations: (2000), 224 N.B.R.(2d) 321 (CA)

McKean Estate, Re (2000), 224 N.B.R.(2d) 321 (CA);

    224 R.N.-B.(2e) 321; 574 A.P.R. 321

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2000] N.B.R.(2d) TBEd. FE.062

A. Stuart Emery (appellant) v. Royal Trust Company of Canada (respondent)

(227/98/CA)

Indexed As: McKean Estate, Re

New Brunswick Court of Appeal

Ryan, Turnbull and Larlee, JJ.A.

February 7, 2000.

Summary:

Mary McKean died in 1995, leaving an estate worth $4.7 million. She was sur­vived by her stepbrother Stuart Emery. Three matters were before the court for determina­tion: (1) a claim by the estate of Alban S. Emery (McKean's stepfather), per his sole executor and beneficiary Stuart Emery, to certain furniture in the possession of Royal Trust, the interim ad­ministrator of the estate of Mary McKean; (2) the validity of one of two wills of Mary McKean, one dated March 3, 1983, pro­pounded by Royal Trust and one dated September 23, 1985, pro­pounded by Stuart Emery as the sole surviv­ing executor named in the will; and (3) a claim in the alternative by Stuart Emery in quantum meruit for services provided to Mary McKean in the event that the 1985 will was not admitted to probate.

The New Brunswick Probate Court, in a decision reported at [1999] N.B.R.(2d) Supp. No. 64, held that Mary McKean lacked testamentary capacity to execute the 1985 will. The court declared that the 1985 will was invalid and admitted the 1983 will to probate. The court also confirmed Royal Trust as executor under the 1983 will. The court declared that the Emery estate owned the furniture now in its possession, but dismissed the claim by the Emery estate to furniture in the possession of Royal Trust. Stuart Emery's quantum meruit claim was allowed in the sum of $70,000. The court awarded solicitor client costs to Royal Trust for the interim administration. Stuart Emery was also awarded costs for propounding the 1985 will and for the quantum meruit award. Stuart Emery appealed the decision that Mary McKean lacked testamentary capacity to execute the 1985 will and, if that decision was not varied, he contested the confirmation of Royal Trust as executor of the 1983 will. Royal Trust cross-appealed with respect to the trial judge's declaration of ownership of furniture in the possession of Stuart Emery and the quantum meruit award to him. Both parties appealed the costs order.

The New Brunswick Court of Appeal dismissed the appeal and the cross-appeal.

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - Where admission of hearsay necessary and evidence reliable - [See Wills - Topic 531 ].

Evidence - Topic 1629

Hearsay rule - Hearsay rule exceptions and exclusions - Statements of deceased per­sons - Statements against interest - [See Wills - Topic 531 ].

Executors and Administrators - Topic 296

Appointment, qualification and tenure - Executors - Appointment - Status to chal­lenge appointment - A testator's step­brother (Emery) appealed from the trial judge's confirmation of Royal Trust as the execu­tor of the testator's 1983 will - The New Bruns­wick Court of Appeal held that Emery had no status to challenge the exec­utorship of Royal Trust because he was not an execu­tor, a benefici­ary or a creditor - Nor did he have any other stand­ing to challenge the appoint­ment of Royal Trust, i.e., he did not have a legally pro­tectible and tangible interest at stake in opposing the appoint­ment of Royal Trust as executor - The trial judge had found no evidence that chal­lenged the fitness of Royal Trust to act as executor - See para­graph 31.

Wills - Topic 531

Testamentary capacity - Evidence and proof - General - The New Brunswick Court of Appeal held that a trial judge did not err in relying on hearsay evidence in determining an issue of the testamentary capacity of a testator - A lawyer had tes­tified with respect to conversations he had with a doctor and with the testator's step­father, both of whom were now deceased - The evidence was admissible as declara­tions against interest made by a deceased person - The evidence was also admissible where it was necessary and reliable - See paragraphs 12 to 30.

Wills - Topic 541

Testamentary capacity - Evidence and proof - Doctrine of suspicious circum­stances - The trial judge held that the testa­trix lacked testamen­tary capacity when she executed a will in 1985 and that the will was invalid - The trial judge described the following as suspicious circumstances: changes in the 1985 will were an abrupt reversal of the testatrix's methodical and planned testamentary dis­positions over the years; a $350,000 per­sonal bequest ap­peared unreasonable given that the bene­ficiary was then 92 years old with an estate valued at $700,000; the longtime corporate executor was removed; the testatrix did not read the will complete­ly - Further, while a doctor had provided a letter in 1985 stating that the testatrix was mentally competent, the 1985 will had the effect of benefitting the doctor in the sum of $50,000 by for­giveness of a $25,000 loan plus a bequest of $25,000 - The New Brunswick Court of Appeal dismissed an appeal.

Cases Noticed:

Clark Estate, Re (1996), 180 N.B.R.(2d) 379; 458 A.P.R. 379 (C.A.), refd to. [para. 10].

Hay Estate, Re, [1995] 2 S.C.R. 876; 183 N.R. 1; 82 O.A.C. 161, refd to. [para. 10].

Stirling Estate, Re (1993), 134 N.B.R.(2d) 17; 342 A.P.R. 17 (C.A.), refd to. [para. 11].

R. v. Khan, [1990] 2 S.C.R. 531; 113 N.R. 53; 41 O.A.C. 353; 59 C.C.C.(3d) 92; 79 C.R.(3d) 1, refd to. [para. 15].

Authors and Works Noticed:

Sopinka, J., Lederman, S.N., and Bryant, A.W., The Law of Evidence in Canada (2nd Ed. 1999), p. 201 [para. 14].

Counsel:

Gordon F. Gregory, Q.C., and Kathryn Gregory El-Khoury, for the appellant;

Donald Gillis, Q.C., Rodney J. Gillis, Q.C., and Anne F. MacNeill, for the respondent.

This appeal and cross-appeal were heard on November 23, 1999, before Ryan, Turn­bull and Larlee, JJ.A., of the New Brunswick Court of Appeal. The following judgment of the Court of Appeal was delivered by Larlee, J.A., on February 7, 2000.