Weidenberger Estate, Re, 2002 ABQB 861

• Judge: Clark, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: April 26, 2002
• Citations: 2002 ABQB 861;(2002), 324 A.R. 286 (QB)

Weidenberger Estate, Re (2002), 324 A.R. 286 (QB)

MLB headnote and full text

Temp. Cite: [2002] A.R. TBEd. OC.106

Estate Name: Ludwig Weidenberger (also known as Louis Weidenberger and Lajos Veidenberger)

(86354; 2002 ABQB 861)

Indexed As: Weidenberger Estate, Re

Alberta Court of Queen's Bench

(Surrogate Matter)

Judicial District of Calgary

Clark, J.

September 27, 2002.

Summary:

Weidenberger died in 1995. In 1987, he had prepared a handwritten document which left his possessions to his family members upon his death. An application was brought for a declaration that the document was a valid holograph will and that Weidenberger had testamentary capacity to execute the will.

The Alberta Court of Queen's Bench declared that the document was a valid holograph will and that Weidenberger had testamentary capacity to execute the holo­graph will. The holograph will had been formally proven and was admitted to pro­bate.

Wills - Topic 302

Testamentary capacity - What constitutes - [See Wills - Topic 401 ].

Wills - Topic 401

Testamentary capacity - Mental disabilities - General - Weidenberger, who had been diagnosed with a mental illness, resided in a hospital from 1981 until his death in 1995 - A Certificate of Incapacity was issued in 1981 and it remained in effect until Weidenberger's death - The Public Trustee had also been made trustee of Weidenberger's estate and had managed his affairs until his death - Weidenberger had prepared a holograph will in 1987 - The Alberta Court of Queen's Bench held that Weidenberger had testamentary capac­ity to execute the will - The fact that Weidenberger's estate was under the Public Trustee's control was insufficient to estab­lish that he lacked testamentary capacity - While Weidenberger might not have known the exact value of his estate, that was not unreasonable given that he did not have control of his estate and it was not a prerequisite to finding testamentary capac­ity - Any delusions which Weidenberger may have had were expressions of distrust toward the Public Trustee and did not affect the will - The court stated that the mentally ill should be allowed the right to manage their own affairs to the extent to which they were capable.

Wills - Topic 405

Testamentary capacity - Mental disabilities - Delusions - What constitutes - Affecting capacity - [See Wills - Topic 401 ].

Wills - Topic 545

Testamentary capacity - Evidence and proof - Declaration that testator incompe­tent to manage his affairs - [See Wills - Topic 401 ].

Cases Noticed:

Lindblom Estate, Re (1999), 252 A.R. 17 (Surr. Ct.), refd to. [para. 23].

Lindblom Estate v. Worthington - see Lindblom Estate, Re.

Stirling Estate, Re (1993), 134 N.B.R.(2d) 17; 342 A.P.R. 17 (C.A.), leave to appeal dismissed [1993] 3 S.C.R. x; 162 N.R. 399; 142 N.B.R.(2d) 160; 364 A.P.R. 160, refd to. [para. 25].

MacMillan Estate, Re, [2000] A.R. Uned. 95 (Surr. Ct.), refd to. [para. 26].

Hay Estate, Re, [1995] 2 S.C.R. 876; 183 N.R. 1; 82 O.A.C. 161, refd to. [para. 26].

Vout v. Hay - see Hay Estate, Re.

Pomerleau v. Fraser et al. (1988), 86 A.R. 104 (Q.B.), affd. (1989), 100 A.R. 97 (C.A.), refd to. [para. 27].

Kolacz v. Burdeinei et al. (1997), 194 A.R. 321 (Q.B.), supplementary reasons (1997), 205 A.R. 54 (Q.B.), refd to. [para. 27].

Pike v. Stone et al. (1999), 179 Nfld. & P.E.I.R. 218; 546 A.P.R. 218 (Nfld. T.D.), refd to. [para. 28].

Banks v. Goodfellow [1861-73] All E.R. Rep. 47 (Q.B.), refd to. [para. 32].

Den v. Vancleve (1819), 2 Southard 589 (N.J. Sup. Ct.), refd to. [para. 33].

Scramstad et al. v. Stannard (1996), 188 A.R. 23 (Q.B.), supplementary reasons (1996), 190 A.R. 1 (Q.B.), refd to. [para. 33].

Schwartz, Re, [1970] 2 O.R. 61 (C.A.), affd. [1972] S.C.R. 150, refd to. [para. 34].

O'Neil v. Royal Trust Co., [1946] S.C.R. 622, refd to. [para. 47].

Sanburn Estate, Re, [1983] A.J. No. 333 (Surr. Ct.), refd to. [para. 47].

Authors and Works Noticed:

Williams, Law Relating to Wills (4th Ed.), p. 22 [para. 47].

Counsel:

Dennis J. Pelkie (Parlee McLaws), for the applicant;

Roy D. Boettger, Q.C. (Field Atkinson Perraton LLP), for Maria Weidenberger, also known as Jozsefne Toplak;

Jane C. Carstairs (McKinnon Carstairs), for the Public Trustee for the Province of Alberta.

This application was heard on April 26, 2002, before Clark, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following reasons for judgment on September 27, 2002.