Morrison Estate v. Rinehart et al., (2011) 368 N.B.R.(2d) 86 (TD)

JudgeGrant, J.
CourtCourt of Queen's Bench of New Brunswick (Canada)
Case DateFebruary 11, 2011
JurisdictionNew Brunswick
Citations(2011), 368 N.B.R.(2d) 86 (TD);2011 NBQB 48

Morrison Estate v. Rinehart (2011), 368 N.B.R.(2d) 86 (TD);

    368 R.N.-B.(2e) 86; 949 A.P.R. 86

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Temp. Cite: [2011] N.B.R.(2d) TBEd. FE.027

Renvoi temp.: [2011] N.B.R.(2d) TBEd. FE.027

Robert W. Rinehart, Interim Administrator of the Estate of Helen L. Morrison (applicant) v. Brian Rinehart, Malcolm Rinehart, Elizabeth Webb, The Corporation of the Anglican Parish of St. James, Saint John and the Corporation of the Anglican Parish of East Saint John (respondents)

(S/C/645/06; 2011 NBQB 48; 2011 NBBR 48)

Indexed As: Morrison Estate v. Rinehart et al.

Répertorié: Morrison Estate v. Rinehart et al.

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Saint John

Grant, J.

February 11, 2011.

Summary:

Résumé:

Morrison executed her first will in June 2004. The residue was divided in five equal shares. Morrison executed her second will in February 2005, 10 days before she died at the age of 91. After providing for specific bequests, the will divided the residue in three equal shares. Morrison's brother, Robert and his wife, both of whom cared for Morrison, were involved in arranging for the execution of the second will and benefited substantially from the second will. Morrison's nephew, Brian, and several others (the respondents) challenged the second will, alleging lack of testamentary capacity and undue influence. Brian also sought reimbursement from the estate for two paintings that he had purchased from the estate auction.

The New Brunswick Court of Queen's Bench, Trial Division, rejected the respondents' claims. The court found that the paintings had been inter vivos gifts by Morrison to Brian. He was entitled to reimbursement from the estate. Robert and Brian were entitled to their costs to be paid out of the estate on a solicitor and client basis.

Executors and Administrators - Topic 5548

Actions by and against representatives - Costs - Where payable out of estate - Morrison executed her first will in June 2004 - The residue was divided in five equal shares - Morrison executed her second will in February 2005, 10 days before she died at the age of 91 - After providing for specific bequests, the will divided the residue in three equal shares - Morrison's brother, Robert and his wife, both of whom cared for Morrison, were involved in arranging for the execution of the second will and benefited substantially from the second will - Morrison's nephew, Brian, and several others (the respondents) challenged the second will, alleging lack of testamentary capacity and undue influence - The New Brunswick Court of Queen's Bench, Trial Division, rejected the respondents' claims - Regarding costs, the court noted that this "was not a frivolous challenge to the will" - Morrison's involvement of Robert in revising her will, while conferring on him a substantial benefit, created circumstances that required the scrutiny of the court - The litigation was the testator's fault - Therefore, the costs of both Robert, the interim administrator of the estate, and Brian were to be paid out of the estate on a solicitor and client basis - See paragraph 147.

Gifts - Topic 858

Gifts inter vivos - Validity of transfer - Particular types of property - Works of art - [See Gifts - Topic 953 ].

Gifts - Topic 953

Gifts inter vivos - Evidence and proof - Donor's intention - Rinehart claimed that he owned two paintings that were in his aunt's house when she died - The first was a Maud Lewis painting which was inscribed "1965 to Brian R" on the back - The second was an unsigned painting which was inscribed "Brian Rinehart August 28/76" on the back - After the aunt died, the executors had put the paintings up for sale at auction - Rinehart purchased them and sought reimbursement from the estate - The executors asserted that any gift that might have been made of the paintings was testamentary at best and that had been revoked when the aunt executed her last will revoking all previous wills, codicils and other testamentary dispositions - The New Brunswick Court of Queen's Bench, Trial Division, held that Rinehart was entitled to reimbursement on the basis that the paintings had been given to him as inter vivos gifts - The inscriptions on the backs of the paintings indicated an intention to give the paintings to Rinehart - While the paintings were not to be transferred until the aunt's death, the inscriptions transferred an immediate interest to him - See paragraphs 130 to 145.

Practice - Topic 7455

Costs - Solicitor and client costs - Entitlement to solicitor and client costs - Estates and estate matters - [See Executors and Administrators - Topic 5548 ].

Wills - Topic 302

Testamentary capacity - General principles - What constitutes - Morrison executed her first will in June 2004 - The residue was divided in five equal shares - Morrison executed her second will in February 2005, 10 days before she died at the age of 91 - After providing for specific bequests, the will divided the residue in three equal shares - The respondents challenged the second will, alleging, inter alia, that Morrison had lacked testamentary capacity - The New Brunswick Court of Queen's Bench, Trial Division, held that the evidence established that Morrison had the required testamentary capacity to execute the will - The respondents' expert, who testified that Morrison's cognitive ability was likely to have been significantly impaired due to the effects of her ailments, had not actually interacted with Morrison at the relevant time - His evidence had less weight than the evidence of those who interacted with Morrison and testified as to her mental capacity - Morrison's awareness of the "objects of her bounty" and the value of the estate, as well as the fact that the purpose of the second will was to revise the first will, indicated that she had a "disposing mind and memory" - Finally, the court was satisfied that Morrison knew of and approved the contents of the second will - See paragraphs 65 to 122.

Wills - Topic 531

Testamentary capacity - Evidence and proof - General - [See Wills - Topic 302 ].

Wills - Topic 539

Testamentary capacity - Evidence and proof - Lay opinions - Weight to be given to - [See Wills - Topic 302 ].

Wills - Topic 540

Testamentary capacity - Evidence and proof - Expert opinions - Weight to be given to - [See Wills - Topic 302 ].

Wills - Topic 541

Testamentary capacity - Evidence and proof - Doctrine of suspicious circumstances - Morrison executed her first will in June 2004 - The residue was divided in five equal shares - Morrison executed her second will in February 2005, 10 days before she died at the age of 91 - After providing for specific bequests, the will divided the residue in three equal shares - The respondents challenged the second will, alleging, inter alia, suspicious circumstances surrounding its execution - The New Brunswick Court of Queen's Bench, Trial Division, held that, while there were circumstances surrounding the taking of instructions for the second will that could legitimately be characterized as suspicious, the level of suspicion was low and those circumstances had been adequately explained - The circumstances included the fact that Morrison's brother and his wife, both of whom benefited from the changes in the second will, were involved in the taking of instructions and arranging for the preparation of the will - However, Morrison and her brother were close - It was to be expected that she would turn to him for help and that he would oblige - Further, the evidence showed that the brother had not taken the initiative to ensure that the revised will was done - He kept himself available, but had not aggressively pursued the issue - See paragraphs 31 to 64.

Wills - Topic 1704

Preparation and execution - Undue influence - What constitutes - General - [See Wills - Topic 1714 ].

Wills - Topic 1714

Preparation and execution - Undue influence - Evidence and proof - Morrison executed her first will in June 2004 - The residue was divided in five equal shares - Morrison executed her second will in February 2005, 10 days before she died at the age of 91 - After providing for specific bequests, the will divided the residue in three equal shares - The respondents challenged the second will, alleging, inter alia, undue influence from Morrison's brother and his wife, who cared for Morrison, were involved in arranging for the execution of the second will and benefited substantially from the second will - The New Brunswick Court of Queen's Bench, Trial Division, found no undue influence - The evidence proved nothing more than a close relationship and the fact that the brother and his wife received a benefit - A benefit flowing to a close relative was not unexpected - Proof of undue influence required proof of more than that - There had to be credible evidence that the benefit was somehow procured or coerced - That conclusion could not be presumed or based on speculation - There had to be "positive proof of undue influence" - See paragraphs 123 to 129.

Donations - Cote 858

Donations entre vifs - Validité du transfert - Genres particuliers de biens - Oeuvres d'art - [Voir Gifts - Topic 858 ].

Donations - Cote 953

Donations entre vifs - Preuve - Intention du donateur - [Voir Gifts - Topic 953 ].

Exécuteurs testamentaires et administrateurs - Cote 5548

Actions par et contre les représentants - Dépens - Cas où ils sont à la charge de la succession - [Voir Executors and Administrators - Topic 5548 ].

Procédure - Cote 7455

Dépens - Frais entre avocat et client - Droit aux frais entre avocat et client - Successions et affaires concernant les successions - [Voir Practice - Topic 7455 ].

Testaments - Cote 302

Capacité testamentaire - Principes généraux - Éléments constitutifs - [Voir Wills - Topic 302 ].

Testaments - Cote 531

Capacité testamentaire - Preuve - Généralités - [Voir Wills - Topic 531 ].

Testaments - Cote 539

Capacité testamentaire - Preuve - Opinions des profanes - Valeur probante de ces opinions - [Voir Wills - Topic 539 ].

Testaments - Cote 540

Capacité testamentaire - Preuve - Opinions des spécialistes - Valeur probante de ces opinions - [Voir Wills - Topic 540 ].

Testaments - Cote 541

Capacité testamentaire - Preuve - Doctrine des circonstances prêtant à soupçon - [Voir Wills - Topic 541 ].

Testaments - Cote 1704

Préparation et exécution - Abus d'influence - Éléments constitutifs - Généralités - [Voir Wills - Topic 1704 ].

Testaments - Cote 1714

Préparation et exécution - Abus d'influence - Preuve - [Voir Wills - Topic 1714 ].

Cases Noticed:

Hay Estate, Re, [1995] 2 S.C.R. 876; 183 N.R. 1; 82 O.A.C. 161; 1995 CanLII 105, appld. [para. 24].

Vout v. Hay - see Hay Estate, Re.

Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.), refd to. [para. 28].

Stirling Estate, Re (1993), 134 N.B.R.(2d) 17; 342 A.P.R. 17 (C.A.), refd to. [para. 65].

Craig v. Lamoureux, [1920] A.C. 349 (P.C.), refd to. [para. 125].

St. Onge Estate v. Breau (2009), 345 N.B.R.(2d) 101; 889 A.P.R. 101 (C.A.), refd to. [para. 142].

Authors and Works Noticed:

Feeney, Thomas G., The Canadian Law of Wills (4th Ed.), paras. 1.20, 1.21, 1.23 to 1.26, 1.31 [para. 137]; 3.5, 3.7 [para. 123].

Counsel:

Avocats:

Charles D. Whelly, Q.C., and Rebecca M. Atkinson, for the applicant, Robert Rinehart;

Frederick C. McElman, Q.C., and Melissa M. Everett Withers, for the respondent, Brian Rinehart;

Robert J. Peters, for the respondents, Malcolm Rinehart and Elizabeth Webb.

This application was heard on November 1-4 and 8, 2010, by Grant, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Saint John, who delivered the following decision on February 11, 2011.

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