Sheen v. Sheen, 2004 MBCA 137

• Judge: Kroft, Monnin and Freedman, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: September 29, 2004
• Jurisdiction: Manitoba
• Citations: 2004 MBCA 137;(2004), 190 Man.R.(2d) 51 (CA)

Sheen v. Sheen (2004), 190 Man.R.(2d) 51 (CA);

    335 W.A.C. 51

MLB headnote and full text

Temp. Cite: [2004] Man.R.(2d) TBEd. OC.023

Rhonda Sheen and Ronald Anthony Sheen (applicants/respondents) v. Henry Edward Joseph Sheen (respondent/appellant)

(AI 03-30-05569; 2004 MBCA 137)

Indexed As: Sheen v. Sheen

Manitoba Court of Appeal

Kroft, Monnin and Freedman, JJ.A.

September 29, 2004.

Summary:

A 79 year old testatrix died in 1999 with an estate valued at less than $200,000. A 1997 will (drafted by her lawyer) favoured her two grandchildren. A 1998 will (drafted by bank officials) favoured her son. The 1998 will was "lost". A 1999 will (drafted by a new lawyer shortly before her death following brain surgery) favoured her son. When the son presented the 1999 will for probate, the grandchildren sought, inter alia, a declaration that the testatrix lacked testamentary capacity.

The Manitoba Court of Queen's Bench, in a judgment reported [2003] Man.R.(2d) Uned. 13, refused probate of the 1999 will on the ground that it was invalid for want of testamentary capacity. The court left the validity of the 1997 and 1998 wills (i.e., whether independently revoked) for further proceedings. The son appealed.

The Manitoba Court of Appeal dismissed the appeal absent grounds to interfere with the trial judge's fact findings respecting testamentary capacity. However, the trial judge erred in failing to determine whether the 1997 and/or 1998 wills were revoked. The court held that the making of the 1998 will, which was duly executed, revoked the 1997 will by application of s. 16(b) of the Wills Act. The 1998 will, which was "lost" was presumed to be "destroyed" and also revoked. In the result, the testatrix died intestate.

Wills - Topic 2338

Revocation - By act of testator - Conditional revocation (dependent relative revocation) - A testatrix executed wills in 1997, 1998 and 1999 - The 1999 will was invalid for want of testamentary capacity - The 1998 will was "lost" - The Manitoba Court of Appeal held that since the "lost" 1998 will was duly executed, the 1997 will was revoked by virtue of s. 16(b) of the Wills Act - There was no indication as to whether the 1998 will was misplaced or destroyed - Although the 1998 will was duly executed and bank officials testified as to its contents, the evidence did not rebut the presumption that the testatrix destroyed it with the intent of revoking it - The court held that revocation of the 1998 will by destruction did not revive the 1997 will - The principle of dependent relative revocation did not apply - Accordingly, the result was that the 1999 will was invalid, the 1997 and 1998 wills were revoked, and the testatrix died intestate - See paragraphs 14 to 44.

Wills - Topic 2342

Revocation - By act of testator - Lost will or codicil - Presumption of revocation where will is lost - [See Wills - Topic 2338 ].

Wills - Topic 2378

Revocation - By subsequent will - Where subsequent will invalid or revoked - [See Wills - Topic 2338 ].

Cases Noticed:

Lefebvre v. Major, [1930] S.C.R. 252, refd to. [para. 30].

Caldwell, Re, [1951] O.W.N. 721 (Surr. Ct.), refd to. [para. 30].

Behie Estate, Re (1977), 23 N.S.R.(2d) 361; 32 A.P.R. 361 (Prob. Ct.), refd to. [para. 30].

Wagenhoffer Estate, Re (1983), 26 Sask.R. 30 (Surr. Ct.), revd. (1986), 22 E.T.R. 60 (C.A.), refd to. [para. 30].

Yakimischak Estate, Re (1980), 8 Man.R.(2d) 19 (Q.B.), refd to. [para. 35].

Salway Estate, Re (1981), 8 Man.R.(2d) 52 (Surr. Ct.), refd to. [para. 35].

Perry, Re, [1925] 1 D.L.R. 930 (Ont. C.A.), refd to. [para. 37].

Wellwood Estate, Re (1982), 36 A.R. 44 (Surr. Ct.), refd to. [para. 38].

Holst Estate v. Holst et al., [2001] B.C.T.C. 1123; 91 B.C.L.R.(3d) 376; 2001 BCSC 1123, refd to. [para. 38].

MacBurnie v. Patriquin (1975), 14 N.S.R.(2d) 680; 11 A.P.R. 680 (C.A.), refd to. [para. 38].

Sigurdson v. Sigurdson (1935), 43 Man.R. 1 (C.A.), affd. [1935] 4 D.L.R. 529 (S.C.C.), refd to. [para. 38].

Bridgewater Estate, Re, [1965] 1 All E.R. 717 (P.D.A.), refd to. [para. 43].

Statutes Noticed:

Wills Act, R.S.M. 1987, c. W-150; C.C.S.M., c. W-150, sect. 16, sect. 20(1) [para. 24].

Authors and Works Noticed:

Feeney, Thomas G., The Canadian Law of Wills (3rd Ed. 1987), vol. 1, p. 146 [para. 42].

Feeney, Thomas G., The Canadian Law of Wills (4th Ed. 2000) (Looseleaf), para. 5.83 [para. 41].

Counsel:

C.L. Ramage, for the appellant;

G.J. Orle, Q.C., for the respondents.

This appeal was heard on April 28, 2004, before Kroft, Monnin and Freedman, JJ.A., of the Manitoba Court of Appeal.

On September 29, 2004, Kroft, J.A., delivered the following judgment for the Court of Appeal.