Quaintance Estate, Re, (2004) 373 A.R. 8 (QB)

• Judge: Watson, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: December 02, 2004
• Citations: (2004), 373 A.R. 8 (QB);2004 ABQB 968

Quaintance Estate, Re (2004), 373 A.R. 8 (QB)

MLB headnote and full text

Temp. Cite: [2005] A.R. TBEd. JA.108

Estate Name: Bertram Sidney Quaintance a.k.a. Bertram Sydney Quaintance

Robyn Quaintance (applicant)

(ES01 96719; 2004 ABQB 968)

Indexed As: Quaintance Estate, Re

Alberta Court of Queen's Bench

Surrogate Matter

Judicial District of Calgary

Watson, J.

December 2, 2004.

Summary:

A daughter requested a formal proof of her father's will on the basis of lack of testamentary capacity and undue influence.

The Alberta Court of Queen's Bench rejected the motion, ordered the will to be accepted for probate as a valid will, and made an order for costs against the daughter.

Practice - Topic 7408

Costs - Solicitor and client costs - General principles - Solicitor and client costs as damages or punishment - A daughter challenged her father's will on the basis of lack of testamentary capacity and undue influence - The Alberta Court of Queen's Bench dismissed the daughter's application and ordered solicitor-client costs against her - The court indicated that in an estate action of this kind, where there was a challenge that fell short of even a prima facie level of success, the court should consider imposing a disapproval form of costs in order to live up to its regulatory responsibilities - See paragraphs 81 to 86.

Practice - Topic 7455

Costs - Solicitor and client costs - Entitlement to solicitor and client costs - Estates - [See Practice - Topic 7408 ].

Wills - Topic 541

Testamentary capacity - Evidence and proof - Doctrine of suspicious circumstances - A daughter requested a formal proof of her father's will on the basis of lack of testamentary capacity and undue influence - The daughter argued that the father had been maneuvered away by being moved to a nursing home and that the father's determinations of bequests had been changed during the writing of the will - The daughter suggested that counsel for the father had been influenced by questionnaires he had distributed to interested parties - The Alberta Court of Queen's Bench dismissed the application - The court found nothing in the evidence to suggest that the daughter had a reasonable prospect of success in proving suspicious circumstances or undue influence - The physical removal of the father did not result in a disconnect because the father was capable of making phone calls and writing letters - There was nothing improper in counsel distributing questionnaires and nothing to suggest that counsel lost track of who was giving instructions - The fact that the father changed his mind from small bequests to none did not trigger the conclusion that he was unduly influenced.

Wills - Topic 1714

Preparation and execution - Undue influence - Evidence and proof - [See Wills - Topic 541 ].

Wills - Topic 1882

Preparation and execution - Evidence and proof - Burden of proof - A daughter challenged her father's will on the basis of lack of testamentary capacity and undue influence - The daughter requested a formal proof of the will - The court considered the standard applicable to its decision of whether to direct a trial on the issue of undue influence - The daughter argued that the standard was something less than the balance of probabilities - The Alberta Court of Queen's Bench rejected that argument, finding that the appropriate standard was one that required the applicant to show at least some evidence that gave rise to a reasonable prospect of success in challenging the will - To find otherwise would leave all wills subject to formal proof on any set of allegations that disappointed relatives suggested - The court dismissed the daughter's application - See paragraphs 10 to 17 and 27 to 29.

Cases Noticed:

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

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. 18, footnote 2].

Weisgerber Estate, Re, [2003] A.R. Uned. 532; 2 E.T.R.(3d) 253; 2003 CarswellAlta 1078; 2003 ABQB 619, refd to. [para. 25, footnote 5].

Gronnerud v. Gronnerud Estate, [2002] 2 S.C.R. 417; 287 N.R. 1; 217 Sask.R. 161; 265 W.A.C. 161; 211 D.L.R.(4th) 673; 43 E.T.R.(2d) 169; 26 R.F.L.(5th) 331; 2002 CarswellSask 248; 2002 SCC 38, refd to. [para. 25, footnote 5].

Stevens et al. v. Morrisroe et al. - see Stevens v. Crawford et al.

Stevens v. Crawford et al. (2001), 281 A.R. 201; 248 W.A.C. 201; 202 D.L.R.(4th) 577; 40 E.T.R.(2d) 276; 2001 ABCA 195, refd to. [para. 26, footnote 6].

Baker Estate v. Myhre, [1995] 6 W.W.R. 410; 168 A.R. 248; 28 Alta. L.R.(3d) 428 (Q.B.), refd to. [para. 42, footnote 8].

Van Alst v. Hunter, 5 Johnson N.Y. Ch. Rep. 159 [para. 44, footnote 9].

Timmons Estate, Re (1991), 137 A.R. 161; 1991 CarswellAlta 576 (Q.B.), refd to. [para. 44, footnote 9].

Davis, Re, [1963] 2 O.R. 666; 40 D.L.R.(2d) 801 (C.A.), refd to. [para. 45, footnote 10].

Stiles Estate v. Stiles, [2003] 9 W.W.R. 496; 341 A.R. 249; 1 E.T.R.(3d) 120; 17 Alta. L.R.(4th) 295; 2003 CarswellAlta 698; 2003 ABQB 317, affd. (2004), 357 A.R. 236; 334 W.A.C. 236; 2004 CarswellAlta 1405; 2004 ABCA 341, refd to. [para. 49, footnote 12].

Banks v. Goodfellow (1870), L.R. 5 Q.B. 549, refd to. [para. 55, footnote 13].

Beal v. Henri Estate, [1950] O.R. 780; [1951] 1 D.L.R. 260; 1950 CarswellOnt 81 (C.A.), refd to. [para. 59, footnote 14].

Wingrove v. Wingrove (1886), L.R. 11 P.D. 81, refd to. [para. 60, footnote 15].

Craig v. Lamoureux, [1920] A.C. 349; 50 D.L.R. 10 (P.C.), refd to. [para. 69, footnote 17].

Martin Estate, Re; MacGregor v. Ryan et al., [1965] S.C.R. 757; 53 D.L.R.(2d) 126; 1965 CarswellOnt 72, refd to. [para. 73, footnote 18].

Laramée v. Ferron (1909), 41 S.C.R. 391; 1909 CarswellQue 20, refd to. [para. 75, footnote 19].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335; 26 D.L.R.(4th) 200; 50 C.R.(3d) 1; 24 C.C.C.(3d) 321; 19 C.R.R. 308; 53 O.R.(2d) 719; 1986 CarswellOnt 95, refd to. [para. 76, footnote 20].

Bater v. Bater, [1951] P. 35; [1950] 2 All E.R. 458 (C.A.), refd to. [para. 76, footnote 20].

Hanes v. Wawanesa Mutual Insurance Co., [1963] S.C.R. 154; [1963] 1 C.C.C. 321; 36 D.L.R.(2d) 718, refd to. [para. 76, footnote 20].

Smith v. Smith, [1952] 2 S.C.R. 312; [1952] 3 D.L.R. 449, refd to. [para. 76, footnote 20].

Ostrander Estate v. Black et al. (1996), 12 E.T.R.(2d) 219; 1996 CarswellOnt 1323 (Gen. Div.), refd to. [para. 77, footnote 21].

R. v. Fontaine (J.), [2004] 1 S.C.R. 702; 318 N.R. 371; 183 C.C.C.(3d) 1; 18 C.R.(6th) 203; 237 D.L.R.(4th) 577; 2004 CarswellQue 814; 2004 SCC 27, refd to. [para. 77, footnote 23].

Authors and Works Noticed:

Feeney, Thomas G., The Canadian Law of Wills (3rd Ed. 1987), p. 33 [para. 40, footnote 7].

Feeney, Thomas G., The Canadian Law of Wills (4th Ed. 2000) (2004 Looseleaf), para. 2.3 [para. 44, footnote 9].

Sopinka, John, and Lederman, Sidney N., The Law of Evidence in Civil Cases (1974), p. 385 [para. 76, footnote 20].

Counsel:

N.E. Shanks (Docken & Company), for the applicant;

R.D. Boettger, Q.C., (Field LLP), for the representative.

This application was heard on December 2, 2004, before Watson, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following judgment orally on the same date.