Stevens v. Crawford et al., 2001 ABCA 195

• Judge: McFadyen, Picard and Berger, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: July 16, 2001
• Citations: 2001 ABCA 195;(2001), 281 A.R. 201 (CA)

Stevens v. Crawford (2001), 281 A.R. 201 (CA);

    248 W.A.C. 201

MLB headnote and full text

Temp. Cite: [2001] A.R. TBEd. JL.070

Ernest F. Stevens and Robert W. Stevens (respondents/plaintiffs) v. Lawrence Morrisroe (appellant/defendant) and Jeanne Patricia Crawford, Elizabeth Gobeille, Lorna Morrisroe, the Monastery of the Precious Blood, Roderick Verstrate, Carol-Anne Uegama, Elaine Coutts, Barrie Brennand, Thomas Brennand, Norma Carol Morrisroe, Gail Wyman, Ronald Morrisroe, Ethel Morrisroe and Jeanne Angus (not parties to this appeal/defendants)

(0003-0053-AC; 2001 ABCA 195)

Indexed As: Stevens v. Crawford et al.

Alberta Court of Appeal

McFadyen, Picard and Berger, JJ.A.

July 16, 2001.

Summary:

A 79 year old woman in the early stages of Alzheimer's disease executed a will. When she died seven years later, issues arose respecting testamentary capacity, suspicious circumstances and undue influence.

The Alberta Surrogate Court, in a decision reported 256 A.R. 254, admitted the will to probate. The court held that the testatrix had testamentary capacity, there was a suspicious circumstance by virtue of her suffering from Alzheimer's disease, and there was no undue influence exerted with respect to the will. The woman's brother, who would have been a beneficiary on intestacy, appealed.

The Alberta Court of Appeal, Berger, J.A., dissenting, dismissed the appeal.

Evidence - Topic 7000

Opinion evidence - Expert evidence - General - The Alberta Court of Appeal stated that with respect to expert testimony, the conclusions a trial judge draws from expert evidence will not be altered on appeal unless the judge has made an unreasonable finding - See paragraph 7.

Practice - Topic 8800

Appeals - General principles - Duty of appellate court regarding findings of fact by a trial judge - The Alberta Court of Appeal stated that whether a person has testamentary capacity at the time she executes her will is a question of fact and an appeal court will not overturn a fact finding unless the trial judge has made a palpable and overriding error - See paragraph 7.

Wills - Topic 301

Testamentary capacity - General - The Alberta Court of Appeal stated that a testator may have testamentary capacity even if she is not of entirely sound mind - A person diagnosed with senile dementia may have testamentary capacity - Even if a disease is of a progressive nature, it is a question of fact whether the testator has sufficient mental awareness to appreciate and understand the testamentary act - Soundness of mind is a practical question and does not depend on scientific or medical definition - "Put simply, testamentary capacity is possible even where the testator has a disease of the mind. While medical or scientific evidence may be of assistance, the finding of testamentary capacity is a matter of fact for the trial judge to determine. Given the standard of review, an appellate court will interfere only if the trial judge has made a manifest error, ignored or misunderstood evidence or drawn erroneous conclusions from evidence." - See paragraphs 18 to 20.

Wills - Topic 302

Testamentary capacity - What constitutes - [See Wills - Topic 301 and second Wills - Topic 412 ].

Wills - Topic 412

Testamentary capacity - Mental disabilities - Disorder of the mind (incl. Alzheimer's disease) - [See Wills - Topic 301 ].

Wills - Topic 412

Testamentary capacity - Mental disabilities - Disorder of the mind (incl. Alzheimer's disease) - A 79 year old woman, in the early stages of Alzheimer's disease, executed a will - When she died seven years later an issue of testamentary capacity arose - The Alberta Surrogate Court held that the fact that the woman had Alzheimer's disease when she executed her will constituted a suspicious circumstance - Accordingly, the proponents of the will could not rely on the presumption of testamentary capacity and had to meet the burden of proving testamentary capacity - The court noted that the fact that someone has Alzheimer's disease was not synonymous with that person lacking testamentary capacity - The court, after carefully scrutinizing all the evidence, concluded that the proponents of the will had established testamentary capacity in this case - The Alberta Court of Appeal refused to disturb the decision - See paragraphs 31 to 49.

Wills - Topic 541

Testamentary capacity - Evidence and proof - Doctrine of suspicious circumstances - An elderly couple executed wills in 1991 when the husband was 82 and the wife 79 - After the wife died in 1998, testamentary capacity became an issue - The lawyer who took the instructions at the couple's home and prepared the will testified that he was fully aware of the concerns regarding elderly clients and was fully satisfied as to testamentary capacity - The lawyer's articling student and wills paralegal believed that the wife had testamentary capacity - The Alberta Surrogate Court held that the wife had testamentary capacity and there was no evidence of suspicious circumstances surrounding the taking of instructions and preparation or execution of the wife's will - The Alberta Court of Appeal refused to disturb the trial judge's ruling - See paragraphs 21 to 30.

Wills - Topic 541

Testamentary capacity - Evidence and proof - Doctrine of suspicious circumstances - [See second Wills - Topic 412 ].

Wills - Topic 549

Testamentary capacity - Evidence and proof - Appeals respecting fact findings - [See Wills - Topic 301 and Practice - Topic 8800 ].

Cases Noticed:

Perara v. Perara, [1901] A.C. 354 (P.C.), refd to. [para. 7].

Thoms v. Thoms (1985), 68 N.S.R.(2d) 30; 159 A.P.R. 30 (C.A.), refd to. [para. 7].

Toneguzzo-Norvell et al. v. Savein and Burnaby Hospital, [1994] 1 S.C.R. 114; 162 N.R. 161; 38 B.C.A.C. 193; 62 W.A.C. 193, refd to. [paras. 7, 52].

Labbee et al. v. Peters et al. (1999), 237 A.R. 382; 197 W.A.C. 382 (C.A.), refd to. [para. 7].

Hay Estate, Re, [1995] 2 S.C.R. 876; 183 N.R. 1; 82 O.A.C. 161, refd to. [para. 16].

Banks v. Goodfellow (1870), L.R. 5 Q.B. 548, refd to. [para. 16].

Ferguson, Re (1962), 48 M.P.R. 154 (P.E.I.S.C.), refd to. [para. 18].

Leger v. Poirier, [1944] S.C.R. 152, refd to. [para. 19].

Stein Estate v. Ship Kathy K, [1976] 2 S.C.R. 802; 6 N.R. 359, refd to. [para. 51].

Ryan v. Victoria (City) et al., [1999] 1 S.C.R. 201; 234 N.R. 201; 117 B.C.A.C. 103; 191 W.A.C. 103, refd to. [para. 51].

N.V. Bocimar S.A. v. Century Insurance Co. of Canada, [1987] 1 S.C.R. 1247; 76 N.R. 212, refd to. [para. 522].

Chartier v. Quebec (Attorney General), [1979] 2 S.C.R. 474; 27 N.R. 1, refd to. [para. 52].

Delgamuukw et al. v. British Columbia et al., [1997] 3 S.C.R. 1010; 220 N.R. 161; 99 B.C.A.C. 161; 162 W.A.C. 161, refd to. [para. 52].

Croke v. Wiseman, [1981] 3 All E.R. 852, refd to. [para. 52].

Kolesar Estate v. Brant (Joseph) Memorial Hospital and Malette, [1978] 1 S.C.R. 491; 15 N.R. 302, refd to. [para. 53].

Brant (Joseph) Memorial Hospital v. Koziol - see Kolesar Estate v. Brant (Joseph) Memorial Hospital and Malette.

Kolesar v. Jeffries - see Kolesar Estate v. Brant (Joseph) Memorial Hospital and Malette.

Joseph Brant Memorial Hospital - see Brant (Joseph) Memorial Hospital.

Woelk v. Halvorson, [1980] 2 S.C.R. 430; 33 N.R. 232; 24 A.R. 620, refd to. [para. 54].

R. v. Harper, [1982] 1 S.C.R. 12; 34 N.R. 359; 133 D.L.R.(3d) 546, refd to. [para. 57].

Dorval v. Bouvier, [1968] S.C.R. 288, refd to. [para. 60].

Maryland Casualty Co. v. Roland Roy Fourrures Inc., [1974] S.C.R. 52; 35 D.L.R.(3d) 591, refd to. [para. 60].

Nova, an Alberta Corp. v. Guelph Engineering Co. (1989), 100 A.R. 241; 70 Alta. L.R.(2d) 97 (C.A.), refd to. [para. 60].

R. v. Thomas, Grant and McPherson (1987), 24 O.A.C. 194 (C.A.), refd to. [para. 60].

Authors and Works Noticed:

Feeney, T.G., The Canadian Law of Wills (3rd Ed. 1987), p. 36 [para. 19].

Williams on Wills (6th Ed. 1987), p. 25 [para. 17].

Counsel:

A.D. Hunter, Q.C., for the respondents (plaintiffs);

J.D. Bruce McDonald, Q.C., for the appellant (defendant).

This appeal was heard before McFadyen, Picard and Berger, JJ.A., of the Alberta Court of Appeal. The decision of the court was filed on July 16, 2001, including the following opinions:

Picard, J.A. (McFadyen, J.A., concurring) - see paragraphs 1 to 49;

Berger, J.A., dissenting - see paragraphs 50 to 103.