Wittenberg Estate, Re, (2015) 364 N.S.R.(2d) 176 (CA)

• Judge: Fichaud, Bryson and Bourgeois, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: May 21, 2015
• Jurisdiction: Nova Scotia
• Citations: (2015), 364 N.S.R.(2d) 176 (CA);2015 NSCA 79

Wittenberg Estate, Re (2015), 364 N.S.R.(2d) 176 (CA);

    1146 A.P.R. 176

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. AU.014

Richard Wittenberg (appellant) v. Linda Cashen, Executrix of the Estate of Gerda Theodora Wittenberg (respondent)

(CA 434444; 2015 NSCA 79)

Indexed As: Wittenberg Estate, Re

Nova Scotia Court of Appeal

Fichaud, Bryson and Bourgeois, JJ.A.

August 11, 2015.

Summary:

The son of the testatrix applied to have his mother's Will proved in solemn form. The basis for his challenge pertained to the Will's execution, as well as concerns regarding the testatrix's testamentary capacity coupled with a suggestion of undue influence by the testatrix's daughter and granddaughter. The Will's proponents made a motion for nonsuit after they had called their evidence, after the son had testified (only witness for the opposing side) and after the proponents decided not to call their rebuttal witness.

The Nova Scotia Probate Court, in a decision reported at 337 N.S.R.(2d) 24; 1067 A.P.R. 24, dismissed the motion.

The Nova Scotia Probate Court, in a decision reported at 349 N.S.R.(2d) 323; 1101 A.P.R. 323, denied the son's application to have the Will set aside for lack of testamentary capacity and undue influence. The probate of the Will could now proceed. The son appealed, repeating his claims that his mother lacked testamentary capacity and was unduly influenced to make her will.

The Nova Scotia Court of Appeal dismissed the appeal.

Courts - Topic 560

Judges - Powers - Authority to act ex mero motu (on own motion) - [See Practice - Topic 121 ].

Executors and Administrators - Topic 5041

Actions by and against representatives - Parties - General - [See Practice - Topic 121 ].

Executors and Administrators - Topic 5548

Actions by and against representatives - Costs - Where payable out of estate - A testatrix's son applied to have his mother's Will proved in solemn form - He alleged lack of testamentary capacity, undue influence and suspicious circumstances - The Probate Court dismissed the application - While there were suspicious circumstances, the testatrix had testamentary capacity and there was no undue influence - The son appealed - The Nova Scotia Court of Appeal dismissed the appeal - The court discussed costs in estate litigation and held that "[t]o the extent that there was a traditional practice of paying costs of all parties out of the estate, those days are over. ... While suspicious circumstances might, in principle, justify relieving a losing party from paying costs - or may even justify payment of some costs to that party - there is no rule to that effect. It is obvious that an allegation of readily dispelled suspicious circumstances could frustrate the usual rule that the successful party be paid by the loser. In each case it would be a matter for consideration in the court's exercise of its discretion, applying the applicable principles to the circumstances before it." - The son essentially asked the Court of Appeal to reweigh the evidence, imposing a substantial burden on the residuary beneficiaries - He repeated the serious allegation of undue influence, without any foundation - This alone merited an increased costs award - The court awarded $10,000 costs against the son payable to the executrix, for the benefit of the estate - See paragraphs 90 to 110.

Executors and Administrators - Topic 5548

Actions by and against representatives - Costs - Where payable out of estate - The Nova Scotia Court of Appeal stated that "[w]hile suspicious circumstances might, in principle, justify relieving a losing party from paying costs - or may even justify payment of some costs to that party - there is no rule to that effect. It is obvious that an allegation of readily dispelled suspicious circumstances could frustrate the usual rule that the successful party be paid by the loser. In each case it would be a matter for consideration in the court's exercise of its discretion, applying the applicable principles to the circumstances before it." - See paragraph 108.

Practice - Topic 121

Persons who can sue and be sued - Estates - General - A testatrix's son applied to have his mother's Will proved in solemn form - He named his mother's estate as the respondent - On appeal, the Nova Scotia Court of Appeal stated that, absent statutory authority, an estate was not a legal person and could not sue or be sued - It was necessary to name the personal representative (Civil Procedure Rules 36.11 and 36.12) - The court had broad authority to ensure that proper parties were before it - The court, on its own motion, amended the style of cause to name the executrix as respondent - See paragraphs 1 to 3.

Practice - Topic 7032.1

Costs - Party and party costs - Entitlement to - Estate matters - [See both Executors and Administrators - Topic 5548 ].

Practice - Topic 7117

Costs - Party and party costs - Special orders - Lump sum in lieu of taxed costs - [See first Executors and Administrators - Topic 5548 ].

Practice - Topic 8800

Appeals - Duty of appellate court regarding findings of fact by a trial judge - A testatrix's son applied to have his mother's Will proved in solemn form - The application judge dismissed the application - The son appealed - The Nova Scotia Court of Appeal stated that "[c]apacity to make a will is an issue of fact. ... Providing the application judge correctly identified and applied the legal principles involved, a finding of testamentary capacity cannot be overturned absent palpable and overriding factual error. ... Similarly, undue influence is a question of fact, attracting that standard of review ..." - The court's role in reviewing the findings of fact by the application judge was limited - See paragraphs 10 and 16.

Wills - Topic 531

Testamentary capacity - Evidence and proof - General - The testatrix's son applied to have his mother's Will proved in solemn form - He challenged the testatrix's testamentary capacity - The Probate Court held that the Will's propounders had shown, through various witnesses, that the testatrix was quite capable of making decisions on her own - The witnesses included a psychiatrist (Garvey) retained by the son to do an assessment of the testatrix - Garvey was satisfied as to her mental competence, as was Ernst, the lawyer who prepared the Will - The court found that as the testatrix advanced in age she began showing the normal signs of aging - These signs were more of a physical nature than of cognitive impairments or mental deficits - The court accepted Garvey's assessment of the testatrix's mental capacity and was not persuaded that her ability to give instructions to Ernst was in any way diminished by a fall that occurred between Garvey's assessment and the making of the Will - The court found testamentary capacity - The son appealed - The Nova Scotia Court of Appeal reviewed the facts regarding testamentary capacity and upheld the decision - See paragraphs 38 to 61.

Wills - Topic 531

Testamentary capacity - Evidence and proof - General - The testatrix's son applied to have his mother's Will proved in solemn form - He challenged the testatrix's testamentary capacity - The Probate Court dismissed the application - On appeal, the son submitted, inter alia, that there was no evidence that the testatrix did not suffer from a disorder of the mind that brought upon a disposition that she would not have made if she were of sound mind - The Nova Scotia Court of Appeal stated that "... the propounders of the will do not have to prove a negative. There was no evidence that [the testatrix] suffered from a mental disorder. The best [the applicant] can do is point to notes of Ms. Ernst [lawyer who drafted will] from her conversation with Mr. Chase [lawyer who referred the testatrix to Ernst] that Mr. Chase thought she was 'probably getting dementia somewhat'. Mr. Chase was not called, so this hearsay evidence was neither confirmed or explained. ... [The applicant's] only evidence about his mother's mental capacity was that she repeated herself. If that qualifies for lack of capacity, few valid wills would be made." - It was clear from Ernst's evidence that she thought the testatrix had capacity - See paragraphs 63 to 66.

Wills - Topic 531

Testamentary capacity - Evidence and proof - General - The testatrix's son applied to have his mother's Will proved in solemn form - He challenged the testatrix's testamentary capacity - The Probate Court dismissed the application - The son appealed - The Nova Scotia Court of Appeal dismissed the appeal - Regarding the criteria that the testatrix had knowledge of her property, the court stated that "[t]he question is not whether a testatrix has a detailed knowledge of her estate, but whether she possesses the ability to have such knowledge. It is that ability which is relevant." - The testatrix certainly had the ability to understand what property she had - She was clear that she wanted most of it to go to her daughter to redress the imbalance between her daughter and son - That intention required some understanding of the net worth of both children, as well as her own - See paragraphs 67 to 74.

Wills - Topic 536

Testamentary capacity - Evidence and proof - Presumption of testamentary capacity - [See first Wills - Topic 541 ].

Wills - Topic 541

Testamentary capacity - Evidence and proof - Doctrine of suspicious circumstances - The Nova Scotia Court of Appeal stated that "[t]he burden of proving a will rests with those who propound it. However, they are assisted by a presumption of knowledge and approval as well as of capacity where the will has been shown to be duly executed. In this case, [the applicant] has also alleged suspicious circumstances in the making of his mother's will. If there are facts that may support this allegation the presumption is spent, and the propounders of the will must establish that the testatrix knew and approved of the contents of the will. Similarly, if those circumstances relate to mental capacity, the propounder must establish testamentary capacity on the civil standard of a balance of probabilities." - See paragraph 11.

Wills - Topic 541

Testamentary capacity - Evidence and proof - Doctrine of suspicious circumstances - The Nova Scotia Court of Appeal stated that "[s]uspicious circumstances may relate to knowledge and approval of the will , testamentary capacity and to undue influence . With respect to capacity, the burden of proof remains with those propounding the will; with respect to allegations of undue influence or fraud, the burden of proof rests with those alleging this. To recapitulate Vout [1995 S.C.C.], suspicious circumstances may be raised by: (a) Circumstances surrounding the preparation of the will; (b) Circumstances tending to call into question the capacity of the testator; or (c) Circumstances tending to show that the free will of the testator was overborne by acts of coercion or fraud." - See paragraph 13.

Wills - Topic 541

Testamentary capacity - Evidence and proof - Doctrine of suspicious circumstances - The Nova Scotia Court of Appeal stated that "[w]hen suspicious circumstances are present: (a) The civil standard of proof on a balance of probabilities applies; however that evidence must be scrutinized in accordance with the gravity of the suspicion; (b) After overcoming the initial burden that the formalities have been complied with and the testator has approved the contents of the will, the propounder of the will reassumes the legal burden of establishing testamentary capacity; (c) The burden on those alleging the presence of suspicious circumstances can be satisfied by adducing or pointing to some evidence which, if accepted, would tend to negative knowledge and approval or testamentary capacity. (d) The burden of proof on those alleging undue influence and/or fraud remains with them throughout." - See paragraph 14.

Wills - Topic 549

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

Wills - Topic 1714

Preparation and execution - Undue influence - Evidence and proof - The testatrix's son applied to have his mother's Will proved in solemn form - His challenge was based on, inter alia, undue influence by the testatrix's daughter and granddaughter - The Probate Court dismissed the application - The son appealed - The Nova Scotia Court of Appeal dismissed the appeal - The burden of proving undue influence rested with those who asserted it - The opportunity to exercise influence was not proof that the testatrix was influenced - Likewise, mere opinion, even of a solicitor, that a will was obtained by undue influence was not sufficient unless there was evidence of that influence - It was not improper for a potential beneficiary to discuss the will with a testator and urge favourable consideration for herself - Unless the influence was coercive, it was not undue - There was a great deal more evidence in the record that it was the son rather than the daughter who tried to exert influence on the testatrix - See paragraphs 75 to 88.

Cases Noticed:

Richards v. Springhill Institution (Warden) et al. (2015), 359 N.S.R.(2d) 59; 1133 A.P.R. 59; 2015 NSCA 40, refd to. [para. 1].

Prevost Estate v. Prevost Estate (2013), 327 N.S.R.(2d) 152; 1036 A.P.R. 152; 2013 NSCA 20, refd to. [para. 2].

Perera v. Perera, [1901] A.C. 354 (P.C.), refd to. [para. 10].

Fergusson's Will, Re (1981), 43 N.S.R.(2d) 89; 81 A.P.R. 89 (C.A.), refd to. [para. 10].

Morash Estate v. Morash, [1997] N.S.R.(2d) Uned. 107; 1997 NSCA 124, refd to. [para. 10].

Keddy Estate, Re, [2003] N.S.R.(2d) Uned. 52; 2003 NSCA 55, refd to. [para. 10].

Marsh Estate, Re (1991), 104 N.S.R.(2d) 266; 283 A.P.R. 266 (C.A.), refd to. [para. 10].

Hay Estate, Re, [1995] 2 S.C.R. 876; 183 N.R. 1; 82 O.A.C. 161, refd to. [para. 12].

Vout v. Hay - see Hay Estate, Re.

3209292 Nova Scotia Ltd. v. MacDuff (2013), 328 N.S.R.(2d) 113; 1039 A.P.R. 113; 2013 NSCA 31, refd to. [para. 17].

Clark v. Nash, [1989] B.C.J. No. 1474 (C.A.), apprvd. [para. 36].

Coleman v. Coleman Estate (2008), 272 N.S.R.(2d) 347; 69 A.P.R. 347; 2008 NSSC 396, dist. [para. 39].

Banks v. Goodfellow (1870), L.R. 5 Q.B. 549, refd to. [para. 40].

Sharp v. Adam, [2006] EWCA Civ. 449, refd to. [para. 40].

Minns v. Foster, [2002] All E.R. 225 (Ch. Div.), refd to. [para. 69].

Leger v. Poirier, [1944] S.C.R. 152, refd to. [para. 70].

Skinner v. Farquharson (1902), 32 S.C.R. 58, refd to. [para. 71].

Laszlo et al. v. Lawton et al., [2013] B.C.T.C. Uned. 305; 2013 BCSC 305, refd to. [para. 72].

Palahnuk Estate, Re, [2006] O.T.C. Uned. E28 (Sup. Ct.), refd to. [para. 72].

Moore v. Drummond, [2012] B.C.T.C. Uned. 1702; 2012 BCSC 1702, refd to. [para. 72].

Goodman Estate v. Geffen, [1991] 2 S.C.R. 353; 127 N.R. 241; 125 A.R. 81; 14 W.A.C. 81, refd to. [para. 75].

Wingrove v. Wingrove (1885), 11 P.D. 81, refd to. [para. 76].

Marsh Estate, Re (1990), 99 N.S.R.(2d) 221; 270 A.P.R. 221 (Prob. Ct.), affd. (1991), 104 N.S.R.(2d) 266; 283 A.P.R. 266 (C.A.), refd to. [para. 77].

Maddess v. Racz et al., [2008] B.C.T.C. Uned. F46; 2008 BCSC 1550, affd. [2009] B.C.A.C. Uned. 127; 2009 BCCA 539, leave to appeal refused (2010), 409 N.R. 386; 299 B.C.A.C. 321; 508 W.A.C. 321 (S.C.C.), refd to. [para. 78].

Nickerson Estate, Re (1996), 155 N.S.R.(2d) 289; 457 A.P.R. 289 (Prob. Ct.), refd to. [para. 79].

Casavechia v. Noseworthy et al. (2015), 362 N.S.R.(2d) 64; 1142 A.P.R. 64; 2015 NSCA 56, refd to. [para. 91].

Mitchell v. Gard (1863), 164 E.R. 1280 (Prob. Ct.), refd to. [para. 94].

McDougald Estate, Re (2005), 199 O.A.C. 203 (C.A.), refd to. [para. 96].

McDougald Estate v. Gooderham - see McDougald Estate, Re.

Harnum v. Moser et al. (2007), 260 N.S.R.(2d) 99; 831 A.P.R. 99; 2007 NSSC 351, refd to. [para. 97].

Van Kippersluis v. Van Kippersluis, [2011] N.S.R.(2d) Uned. 234; 2011 NSSC 399, refd to. [para. 97].

Sable Offshore Energy Inc. et al. v. Ameron International Corp. et al. (2013), 446 N.R. 35; 332 N.S.R.(2d) 1; 1052 A.P.R. 1; 2013 SCC 37, refd to. [para. 98].

Townsend v. Doherty, [1993] O.J. No. 713 (Gen. Div.), refd to. [para. 99].

McCormick Estate, Re, [2002] O.T.C. Uned. 234 (Sup. Ct.), refd to. [para. 99].

Gamble v. McCormick - see McCormick Estate, Re.

Sinigoj Estate, Re (2000), 269 A.R. 30; 2000 ABQB 549, refd to. [para. 99].

Holzel v. Mjeda - see Sinigoj Estate, Re.

Oldfield v. Oldfield Estate, [1994] O.J. No. 2529 (Gen. Div.), refd to. [para. 99].

Marshall Estate, Re (1998), 50 O.T.C. 357 (Gen. Div.), agreed with [para. 101].

Cutcliffe Estate, Re; Le Duc v. Veness et al., [1958] 3 All E.R. 642 (C.A.), refd to. [para. 102].

Wharton v. Bancroft et al., [2012] EWHC 91 (Ch.), refd to. [para. 102].

Statutes Noticed:

Probate Act, S.N.S. 2000, c. 31, sect. 92 [para. 92].

Authors and Works Noticed:

Feeney, Thomas, The Canadian Law of Wills (3rd Ed.), vol. 1, p. 42 [para. 77].

Hull, Ian M., Costs in Estate Litigation (1998), 18 E.T.R.(2d) 218, generally [para. 93].

Counsel:

G. Bernard Conway, for the appellant;

Robert Stewart, Q.C., for the respondent.

This appeal was heard in Halifax, N.S., on May 21, 2015, by Fichaud, Bryson and Bourgeois, JJ.A., of the Nova Scotia Court of Appeal. Bryson, J.A., delivered the following decision for the court on August 11, 2015.