Ritchie Estate, Re, (2007) 293 Sask.R. 238 (CA)

• Judge: Cameron, Gerwing and Richards, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: February 13, 2007
• Jurisdiction: Saskatchewan
• Citations: (2007), 293 Sask.R. 238 (CA);2007 SKCA 64;293 Sask R 238

Ritchie Estate, Re (2007), 293 Sask.R. 238 (CA);

      397 W.A.C. 238

MLB headnote and full text

Temp. Cite: [2007] Sask.R. TBEd. JN.019

Lisa Ritchie (respondent/appellant) v. Royal Trust Corporation of Canada (applicant/respondent)

(No. 1223; 2007 SKCA 64)

Indexed As: Ritchie Estate, Re

Saskatchewan Court of Appeal

Cameron, Gerwing and Richards, JJ.A.

June 7, 2007.

Summary:

A testator's daughter filed a caveat, alleging that the father lacked testamentary capacity when he executed his will, and applied for proof of the will. She also alleged that the father's free will was overborne by the undue influence of his wife. The executor of the estate applied for an order vacating the caveat and granting probate.

The Saskatchewan Court of Queen's Bench, in a decision reported at 270 Sask.R. 51, allowed the executor's application, vacated the caveat and admitted the will to probate. In a corrigendum, the court ordered solicitor and client costs payable to both parties out of the estate. The daughter appealed. The executor cross-appealed regarding costs.

The Saskatchewan Court of Appeal, Richards, J.A., dissenting, dismissed the appeal and the cross-appeal.

Executors and Administrators - Topic 1139

Grant of probate or letters of administration - Proof of will in solemn form - Practice - Ritchie was diagnosed with dementia in 1989 and with Alzheimer's in 1992 - He died in 2003 - In 1996, Ritchie executed a will that gave his second wife the matrimonial home and 50% of the estate's residue - His daughter from the first marriage filed a caveat and sought formal proof, alleging lack of testamentary capacity and undue influence - The executor applied for an order vacating the caveat and granting probate - The chambers judge allowed the executor's application - The daughter appealed - The Saskatchewan Court of Appeal, Richards, J.A., dissenting, dismissed the appeal - If a real question, based on probative evidence going to issues material to capacity, was raised, the will should be proved in solemn form - However, not every suggestion of irregularity or evidence on peripheral points led to the conclusion that there was a sufficient issue for proof - Proof in solemn form was not to be entered into without sufficient foundation - Here, the children's affidavits merely referred to short-term memory loss, losing objects and stress consistent generally with dementia - They addressed neither testamentary capacity nor the relevant time - The chambers judge concluded correctly that proof in solemn form should not be ordered - See paragraphs 1 to 23.

Executors and Administrators - Topic 1140

Grant of probate or letters of administration - Proof of will in solemn form - Evidence and proof - [See Executors and Administrators - Topic 1139 ].

Practice - Topic 3678

Evidence - Affidavits - Use of - Affidavits made on information and belief - In 1996, Ritchie executed a will that gave his second wife the matrimonial home and 50% of the estate's residue - After his death, his daughter from the first marriage filed a caveat and sought formal proof, alleging lack of testamentary capacity and undue influence - Her evidence included correspondence from Ritchie's wife - The chambers judge excluded the exhibits as hearsay, finding that there were no special circumstances under Queen's Bench Rule 319 that would allow their admission in an interlocutory proceeding - The executor applied for an order vacating the caveat and granting probate - The chambers judge allowed the executor's application - The daughter appealed, asserting, inter alia, that the judge had erred in excluding the exhibits - The Saskatchewan Court of Appeal, Richards, J.A., dissenting, dismissed the appeal - The majority agreed with Richards, J.A., regarding the admissibility of the exhibits - The chambers judge applied the rule too strictly - There was no suggestion that the correspondence was not written by the wife nor that the contents were inaccurate - Given the nature of the proceeding, i.e., a determination of whether the daughter raised a sufficiently serious issue to warrant an order requiring proof in solemn form, the traditional rationale for excluding hearsay did not exist - See paragraphs 2 and 50 to 62.

Practice - Topic 3682

Evidence - Affidavits - Use of - Interlocutory applications and motions - [See Practice - Topic 3678 ].

Wills - Topic 302

Testamentary capacity - General principles - What constitutes - Ritchie was diagnosed with early dementia in 1989 and with Alzheimer's in 1992 - He died in 2003 - In 1996, Ritchie executed a will that gave his second wife the matrimonial home and 50% of the estate's residue - His daughter from the first marriage filed a caveat and sought formal proof, alleging, inter alia, lack of testamentary capacity - The executor applied for an order vacating the caveat and granting probate - The chambers judge allowed the executor's application - The daughter appealed - The Saskatchewan Court of Appeal, Richards, J.A., dissenting, dismissed the appeal - The critical points for having testamentary capacity were understanding the nature of the document, the property and the claims - Dementia itself did not necessarily preclude testamentary capacity - Here, the children's affidavits merely referred to incidents of short-term memory loss, losing objects and stress consistent generally with dementia - They addressed neither testamentary capacity nor the relevant time (the making of the will) - This was in contrast to extremely strong affidavits filed by the lawyer who made the will and Ritchie's physician - The chambers judge concluded correctly that there was uncontradicted evidence of testamentary capacity - See paragraphs 1 to 23.

Wills - Topic 307

Testamentary capacity - General principles - Relevant time for - [See Wills - Topic 302 ].

Wills - Topic 409

Testamentary capacity - Mental disabilities - Confused state of mind - [See Wills - Topic 302 ].

Wills - Topic 412

Testamentary capacity - Mental disabilities - Disorder of the mind (incl. Alzheimer's disease) - [See Wills - Topic 302 ].

Wills - Topic 1704

Preparation and execution - Undue influence - What constitutes - General - Ritchie was diagnosed with early dementia in 1989 and with Alzheimer's in 1992 - He died in 2003 - In 1996, Ritchie executed a will that gave his second wife the matrimonial home and 50% of the estate's residue - His daughter from the first marriage filed a caveat and sought formal proof, alleging, inter alia, undue influence - The executor applied for an order vacating the caveat and granting probate - The chambers judge allowed the executor's application - The daughter appealed - The Saskatchewan Court of Appeal, Richards, J.A., dissenting, dismissed the appeal - The majority of the court agreed with Richards, J.A., regarding undue influence - The daughter's affidavits went no further than suggesting that Ritchie showed a lack of independence - The chambers judge correctly concluded that there was nothing unusual or untoward about Ritchie's decision to vary arrangements in favour of his wife in light of the care that she had provided to him and the lengthening term of their marriage - There was no genuine issue to be tried regarding undue influence - See paragraphs 21 and 79 to 81.

Wills - Topic 1714

Preparation and execution - Undue influence - Evidence and proof - [See Wills - Topic 1704 ].

Cases Noticed:

Quaintance Estate, Re (2006), 380 A.R. 160; 363 W.A.C. 160; 56 Alta. L.R.(4th) 6 (C.A.), refd to. [paras. 4, 46].

Dieno (Inez) Estate v. Dieno (Jacob) Estate, [1996] 10 W.W.R. 375; 147 Sask.R. 14 (Q.B.), refd to. [paras. 5, 33].

Hay Estate, Re, [1995] 2 S.C.R. 876; 183 N.R. 1; 82 O.A.C. 161, refd to. [para. 44].

Salaman v. Warner, [1891] 1 Q.B. 734 (C.A.), refd to. [para. 51].

Petrich v. Petrich (1998), 157 Sask.R. 155 (Q.B.), refd to. [para. 54].

R. v. Fenrich, [1985] 6 W.W.R. 269; 42 Sask.R. 117 (Q.B.), refd to. [para. 55].

Counsel:

Richard J. Steponchev, for the appellant;

Robert F. Thornton, Q.C., for the respondent.

This appeal and cross-appeal were heard on February 13, 2007, by Cameron, Gerwing and Richards, JJ.A., of the Saskatchewan Court of Appeal. On June 7, 2007, the Court delivered its written reasons, including the following opinions:

Gerwing, J.A. (Cameron, J.A., concurring) - see paragraphs 1 to 23;

Richards, J.A., dissenting - see paragraphs 24 to 88.