Stiles Estate v. Stiles, 2003 ABQB 317

• Judge: Hutchinson, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: February 11, 2003
• Citations: 2003 ABQB 317;(2003), 341 A.R. 249 (QB)

Stiles Estate v. Stiles (2003), 341 A.R. 249 (QB)

MLB headnote and full text

Temp. Cite: [2003] A.R. TBEd. JN.036

Kenneth Stiles in his capacity as the Personal Representative named in the will of Gordon Edward Stiles, Deceased (plaintiff) v. Anne Leona Stiles (defendant)

(Action No. 089978; 2003 ABQB 317)

Indexed As: Stiles Estate v. Stiles

Alberta Court of Queen's Bench

Judicial District of Calgary

Hutchinson, J.

May 16, 2003.

Summary:

The wife of a testator filed a notice of objection to the formal grant of probate of her husband's will. She claimed that the will was invalid and that her husband died intestate. She alleged that the testator lacked testamentary capacity and was unduly influenced or under duress.

The Alberta Surrogate Court, in a decision unreported in this series of reports, ordered that the testator's will be proven in solemn form, that there be a trial to determine whether the testator had testamentary capacity to make the will, that the testamentary executor be designated as plaintiff and that the wife be designated as defendant.

The Alberta Court of Queen's Bench ruled that the plaintiff established that the testator had testamentary capacity to give instructions and execute the will and the will having been proved in solemn form should be admitted into probate.

Barristers and Solicitors - Topic 1688

Relationship with client - Preparation of wills - Duty to prepare notes in cases of doubtful capacity - The Alberta Court of Queen's Bench ruled that a finding of testamentary capacity did not hang solely on what a solicitor did or did not do when instructions were taken to prepare a will and thereafter on its execution - It was not fatal to an inquiry into testamentary capacity that a solicitor retained to receive instructions to prepare a will failed to inquire about or to record information concerning the possibility of a business partnership between husband and wife or their respective contributions towards the accumulation of assets during their marriage or the contributions of premarital assets - Depending upon the circumstances, this could be useful information in giving estate planning advice - Likewise, a discussion of the maintenance responsibilities owed by a testator to a spouse as contemplated by the Family Relief Act (Alta.) was not a prerequisite to determine testamentary capacity - It was certainly good practice on the part of a solicitor to canvass all relevant areas touching on each client's particular circumstances including testamentary capacity where there was any indication that such advice was needed or any indication of a lack of mental capacity and to record such information for later reference, if needed - See paragraphs 109 and 110.

Wills - Topic 302

Testamentary capacity - General principles - What constitutes - [See Wills - Topic 307 ].

Wills - Topic 307

Testamentary capacity - General principles - Relevant time for - On April 20, 1999, the testator, who was being treated for cancer, instructed his lawyer to draft a will naming the testator's brother as executor and bequeathing property to his nephews - Some of that property would have gone to the testator's wife upon an intestacy - On April 27, 1999, the testator executed the will - The testator died on August 10, 1999 - The wife claimed that the will was invalid because of lack of testamentary capacity - The Alberta Court of Queen's Bench rejected the claim - The court addressed the testator's mental capacity and/or competency when he gave instructions to his lawyer on April 20, 1999, and when he executed the will on April 27, 1999 - The court found it significant that the testator was able to give a complicated set of instructions on April 20, 1999, which not only indicated the extent of his assets and an accurate description of them, but also recognized his responsibilities toward his wife's maintenance, the difficulties he was having in separating two one-quarter sections and his desire to insure that the family farmlands would eventually pass on to his nephews - The court found that the testator had full testamentary capacity on April 20, 1999 - The court also rejected the wife's argument that, as a result of a 1996 accident, the testator suffered from delusions which affected his testamentary capacity.

Wills - Topic 409

Testamentary capacity - Mental disabilities - Confused state of mind - [See Wills - Topic 541 ].

Wills - Topic 541

Testamentary capacity - Evidence and proof - Doctrine of suspicious circumstances - On April 20, 1999, the testator, who was being treated for cancer, instructed his lawyer to draft a will naming the testator's brother as executor and bequeathing property to his nephews - Some of that property would have gone to the testator's wife upon an intestacy - On April 27, 1999, the testator executed the will - The testator died on August 10, 1999 - The wife claimed that the will was invalid because of lack of testamentary capacity - The Alberta Court of Queen's Bench rejected the claim - However, the court ruled that there were suspicious circumstances here arising because of the gravity of the testator's illness and the medical treatments he was undergoing, i.e., radiation and the medications given to him and the fluctuations in the sodium level in his system giving rise to the possibility of varying degrees of confusion - See paragraphs 99 to 107.

Wills - Topic 1704

Preparation and execution - Undue influence - What constitutes - General - On April 20, 1999, the testator, who was being treated for cancer, instructed his lawyer to draft a will naming the testator's brother as executor and bequeathing property to his nephews - Some of that property would have gone to the testator's wife upon an intestacy - On April 27, 1999, the testator executed the will - The testator died on August 10, 1999 - The wife claimed that the will was invalid because of undue influence - The Alberta Court of Queen's Bench rejected the claim - It was very likely that the members of the testator's family, knowing of his precarious health, were concerned that he put his affairs in order and that he have a will - Any such reasonable concern should not impute undue influence on their part or trigger a presumption of undue influence - See paragraphs 89 to 98.

Cases Noticed:

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

Stevens v. Crawford et al. (2000), 256 A.R. 254 (Surr. Ct.), affd. (2001), 281 A.R. 201; 248 W.A.C. 201; 202 D.L.R.(4th) 577 (C.A.), consd. [para. 61].

Vout v. Hay - see Hay Estate, Re.

Hay Estate, Re, [1995] 2 S.C.R. 876; 183 N.R. 1; 82 O.A.C. 161; 125 D.L.R.(4th) 431, consd. [para. 61].

Scramstad et al. v. Stannard (1996), 188 A.R. 23; 40 Alta. L.R.(3d) 324 (Q.B.), consd. [para. 66, 103].

Kolacz v. Burdeinei et al. (1997), 194 A.R. 321 (Q.B.), consd. [para. 68].

Martin, Re; MacGregor v. Ryan, [1965] S.C.R. 757, refd to. [para. 75].

Worrell, Re, [1971] O.R. 184 (Surr. Ct.), consd. [para. 78].

Bahry v. Zytaruk, [2002] A.R. Uned. 385 (Q.B.), consd. [para. 81].

Dansereau Estate v. Vallee and Lapointe (1999), 247 A.R. 342 (Q.B.), consd. [para. 85].

Goodman Estate v. Geffen, [1991] 2 S.C.R. 353; 127 N.R. 241; 125 A.R. 81; 14 W.A.C. 81; 81 D.L.R.(4th) 211, consd. [para. 89].

Barry v. Butlin (1838), 2 Moo. 480; 12 E.R. 1089, refd to. [para. 100].

Banks v. Goodfellow (1870), L.R. 5 Q.B. 549, consd. [para. 103].

Collicutt Estate, Re (1994), 128 N.S.R.(2d) 81; 359 A.P.R. 81 (Prob. Ct.), consd. [para. 104].

Philp v. Woods (1985), 66 B.C.L.R. 42 (S.C.), consd. [para. 109].

Murphy v. Lamphier (1914), 31 O.L.R. 287 (H.C.), consd. [para. 109].

Davies, Re, [1963] 2 O.R. 666; 40 D.L.R.(2d) 801 (C.A.), consd. [para. 109].

McPhee, Re; Canada Permanent Trust Co. v. Stewart; Canada Permanent Trust Co. v. Clare (1965), 25 D.L.R.(2d) 520 (B.C.S.C.), consd. [para. 112].

Counsel:

M. Freeman, for the plaintiff;

Edward M. Nicholson, for the defendant.

Hutchinson, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, heard this matter on February 11, 2003, and delivered the following reasons for judgment on May 16, 2003.