Date: 20170314
Docket: PR 11-01-88825
(Winnipeg Centre)
Indexed as: Schrof v. Schrof et al.
Cited as: 2017 MBQB 51
COURT OF QUEEN’S BENCH OF MANITOBA
IN THE MATTER OF:
THE LAST WILL AND TESTAMENT OF BURNADINE
AGNES SCHROF
BETWEEN:
WALTER GLEN SCHROF,
- and MERVIN FRED SCHROF and
CALVIN PAUL SCHROF,
)
)
)
)
applicant, )
)
)
)
)
)
respondents. )
APPEARANCES:
Janet Jardine
for the applicant
Faron J. Trippier and
Karen Wittman
for the respondents
Judgment delivered:
March 14, 2017
TOEWS J.
INTRODUCTION
[1]
This is an application by Walter Glen Schrof (Glen), one of three sons of the
testatrix Burnadine Agnes Schrof (Agnes), for revocation of the grant of probate on the
basis that the three codicils executed by Agnes on August 7, 2009 (the first codicil),
October 15, 2009 (the second codicil) and April 19, 2010 (the third codicil) are invalid.
Page: 2
It is Glen's position that the original will executed on January 23, 2001 (the Will) ought
to be the only testamentary instrument for which probate should be granted.
[2]
The application is made under The Wills Act, R.S.M. 1988, c. W150 and Queens
Bench Rule 14.05(2). The relevant portion of Rule 14.05(2) provides:
Proceedings which may be commenced by application
14.05(2) A proceeding may be commenced by application,
(a) where authorized by these rules,
...
(c) where the relief claimed is for,
(i) the opinion, advice or direction of the court on a question
affecting the rights of a person in respect of the administration of the
estate of a deceased person or the execution of a trust,
(ii) an order directing executors … to do … any particular act in
respect of an estate ... for which they are responsible,
...
(iv) the determination of rights which depend upon the interpretation
of a deed, will, agreement, contract or other instrument, or upon the
interpretation of a statute, order in council, order, rule, regulation, bylaw or resolution,
....
(d) in respect of any matter where it is unlikely there will be any material
facts in dispute.
[3]
The codicils are challenged on the basis that Agnes lacked the requisite
testamentary capacity at the time they were executed or that she was unduly
influenced by the respondents, Mervin Fred Schrof (Mervin) and Calvin Paul Schrof
(Calvin).
[4]
Glen also seeks a determination as to his rights in respect of a quarter section of
land (the quarter section) described more fully in the application and a $40,000
Page: 3
investment with the Royal Bank (the RBC investment), as well as a number of other
chattels and personal property also set out in the various subparagraphs of paragraph
1(c) of the application.
[5]
Glen takes the position that the quarter section and the RBC investment were an
inter vivos gift from Agnes while the other farm and house chattels set out in his
application have always been his property.
[6]
Mervin and Calvin take the position that Agnes had the requisite testamentary
capacity to make the three codicils and that there was no undue influence or suspicious
circumstances in making them.
[7]
Insofar as the real and personal property in dispute is concerned, Mervin and
Calvin take the position that the property at all times belonged to Agnes or is jointly
owned property excluded from the estate. They state it was neither gifted to Glen nor
bequeathed to him in Agnes' Will.
The Issues
[8]
The parties have identified the following issues:
a)
The testamentary capacity of Agnes and whether there were suspicious
circumstances surrounding the making of the three codicils;
b)
Whether the quarter section described in the application constituted an
inter vivos gift by Agnes to Glen;
c)
Was the RBC investment identified in the application an inter vivos gift by
Agnes to Glen; and
d)
The ownership of the other personal property identified in paragraph 1(c)
of the application.
Page: 4
[9]
I also want to state at the onset of these reasons that I have some concern
about whether this matter should have proceeded in the manner it did. The matter was
initiated by way of an application rather than an action and counsel chose to file and
rely on affidavit evidence in this matter, which was then the subject of extensive crossexamination. Those cross-examinations did not take place before me. While it is not
necessarily inappropriate to proceed in this manner, the concern that became evident to
me over the course of this hearing was that much of the legal argument presented to
me is based on affidavit evidence and cross-examinations that raise disputes about
material facts in respect of the ownership of or entitlement to this property.
[10]
Without in any way being critical of counsel in this case and with the benefit of
20/20 hindsight, it is my opinion that it would have been preferable at the onset of the
filing of the originating material in this application, to have ordered a trial of at least
some of the issues raised in this case. In this context, I am mindful of the decision of
the Manitoba Court of Appeal in Garwood v. Garwood Estate, 2007 MBCA 160, 225
Man.R. (2d) 30, where the court overturned a decision of the lower court which had
proceeded on the basis of affidavit evidence filed over the objection of one of the
parties. That evidence showed substantial factual disputes and credibility issues that
could only be resolved at a trial.
[11]
In this case, neither party has expressed any concern with the manner in which
this matter has proceeded and therefore this application is distinguishable from the
Garwood decision in that respect. Furthermore, since I did not specifically express or
otherwise raise this concern with counsel until very late in these proceedings, I will deal
Page: 5
with the application on the basis of the evidence before me to the extent that I am able
to do so. This approach is consistent with the principle of proportionality.
[12]
However, to the extent that it may not be possible to proceed and properly deal
with all of the issues raised in this fashion, I will order a trial of any issue where,
despite the agreement of the parties to proceed in this manner, it is appropriate to do
so. The discretion to refuse to proceed on the basis of an application made under this
rule and order a trial instead, is set out in Queen’s Bench Rules 38.01 and 38.09 which
state:
38.01 This Rule applies to all proceedings under rule 14.05 which are
commenced by a notice of application.
38.09 On hearing an application, a judge may,
(a) allow or dismiss the application or adjourn the hearing, with or
without terms; or
(b) where satisfied that there is a substantial dispute of fact, direct that
the application proceed to trial or direct the trial of a particular issue or
issues and, in either case, give such directions and impose such terms as
may be just, subject to which the proceeding shall thereafter be treated
as an action.
Synopsis of the Facts
[13]
At this point, it is instructive to set out some of the factual background giving
rise to the issues in this case. To the extent that any additional factual references are
required, I will make them as I specifically deal with each of the issues in the course of
these reasons.
[14]
Glen, Mervin and Calvin are three brothers who are the sons of Walter Schrof
(Walter) and Agnes.
Walter and Agnes operated a family farm near Starbuck,
Page: 6
Manitoba. As children and adults, all three sons farmed together with their father for
many years.
[15]
In time, Glen built a home on one of the family owned farm sections on the
same yard site where Agnes and Walter had their home.
Both houses shared a
common driveway. The respondents also built homes in and around the family farm,
but on different parcels of land.
[16]
When Walter passed away in 1998, his will bequeathed the section of the farm
on which Agnes' home was located to Glen with a life interest to Agnes.
[17]
The three brothers continued to work together in a cooperative fashion until
2007, when relations began to sour between the brothers. At that time, Glen made
allegations that were critical of the operation of the farm, and he also made allegations
of theft by other family members.
[18]
The respondents state that in order to keep peace among the family members,
Glen received certain land which he could farm rent free and Calvin provided Glen with
two cheques totaling approximately $35,000 in the hope that it would resolve some of
the issues with Glen. Unfortunately, the dispute continued to escalate.
[19]
According to the respondents, Agnes contacted a lawyer, Jennifer McRae
(McRae), in August of 2009, as a result of the escalation of the problems between Glen
and the respondents. In her affidavit, McRae advises that Agnes stated that because
the three sons were not getting along and because she had concerns about Glen's
mental health, she wished to remove Glen as the executor of her Will.
Page: 7
[20]
As a result, the first codicil was executed by Agnes on August 7, 2009. This
codicil named Mervin as the executor and Calvin as the alternate executor of the Will
and removed Glen as an executor.
[21]
Following a physical altercation between Calvin's son and Glen on September 1,
2009, McRae states that Agnes again contacted her on September 14, 2009 and
expressed concern about Glen taking the position that the property where Agnes lived
(pursuant to the life estate interest bequest in Walter's will) was his and that family
members and friends who visited her there were trespassing on his property.
[22]
On September 16, 2009, an argument took place between Glen and Agnes which
resulted in him slamming a door in Agnes’ house so hard when he left, that the door
jamb was broken and had to be repaired. The RCMP attended at Agnes' home and as a
result of their attendance, Agnes applied for a protection order the same day. Following
a hearing, the hearing officer granted the protection order.
The transcript of that
hearing has been filed in these proceedings and will be referred to in more detail.
[23]
Following the granting of the order, it is the respondents' evidence that Agnes
continued to be fearful of Glen and she insisted that the locks on the doors of her home
be changed and an alarm system be installed. Agnes also had her mail re-directed and
Mervin arranged to have it picked up from the post office and delivered directly to her.
[24]
On October 8, 2009, Agnes again contacted McRae, who states that because of
the continuing conflict between the brothers over the operation of the farm, Agnes
wanted a further change to her Will. Subsequently, the second codicil was prepared
Page: 8
and executed by Agnes on October 15, 2009.
This codicil removed Glen as a
beneficiary of the residue of the estate.
[25]
A colleague of McRae, Lynda Troup (Troup), witnessed the execution of the
second codicil and also was retained to assist Agnes in dealing with Glen's application to
have the protection order set aside.
[26]
As a result of the ongoing problems, in the spring of 2010, the three brothers
began to farm separately. In April of 2010, McRae states she was contacted by Agnes
again and requested that Glen be removed entirely from her Will. The last remaining
bequest to Glen in the Will was a parcel of land which was then split between Mervin
and Calvin pursuant to the provisions of the third codicil executed by Agnes on April 19,
2010. Counsel advise that prior to the death of Agnes on July 9, 2011, Glen was not
aware of the changes which Agnes made to her testamentary wishes pursuant to the
three codicils.
[27]
As is evident from the summary of the facts of both parties, there is a substantial
amount of acrimony between the applicant and the respondents, including their
respective families. The dispute among the family members continued until the time of
Agnes' death and despite attempts at mediation, a lawsuit brought by Agnes to deal
with the dispute with Glen over the life estate was not resolved. The applicant has
listed the numerous claims filed in the Court of Queen's Bench by members of these
families.
Furthermore, there have been various physical altercations between the
brothers and various family members. These physical disputes have resulted in criminal
Page: 9
charges, although those have been resolved by way of peace bonds or conditional
discharges.
[28]
In my opinion, it is fruitless to examine the various incidents in an attempt to
determine the motives and equities in each of those cases. No further reference need
be made to them unless it is necessary to specifically refer to them in order to shed
light onto the issues which the court is called upon to determine in this case, namely,
the testamentary capacity of Agnes, the circumstances surrounding the making of the
codicils, and the ownership of the specific property set out in the application.
The testamentary capacity of Agnes and whether there were
suspicious circumstances surrounding the making of the three
codicils
[29]
Glowacki J. in Sheen v. Sheen, 2003 MBQB 18, 49 E.T.R. (2d) 114 (QL),
summarized the various steps a court must follow, along with the applicable burden of
proof relevant to each step, when considering a challenge to the validity of a will or
other testamentary instrument. He stated (at paras. 4-6):
4
The propounder of a will has the legal burden with respect to due
execution, knowledge and approval, and testamentary capacity. There is a
rebuttable presumption that upon proof that the will was duly executed in
accordance with the requisite formalities, after having been read over to or by a
testatrix who appeared to understand it, it will generally be presumed that the
testator knew and approved of the contents and had the necessary testamentary
capacity. If there are suspicious circumstances, then the presumption is spent
and the propounder of the will resumes the legal burden of proving knowledge
and approval. If the suspicious circumstances relate to mental capacity, the
propounder of the will reassumes the legal burden of establishing testamentary
capacity. Both of these issues must be proved in accordance with the civil
standard of proof on a balance of probabilities. Fraud and undue influence are
to be treated as an affirmative defence and the onus rests with those attacking
the will. Suspicion concerning the presence of fraud or undue influence do no
Page: 10
more than rebut the presumption of knowledge and approval and testamentary
capacity. Vout v. Hay, [1995] 2 S.C.R. 876.
5
In the Supreme Court decision of Re Martin; MacGregor v. Ryan, [1965]
S.C.R. 757, Ritchie J. stated as follows at p. 766:
The extent of the proof required is proportioned to the gravity of the
suspicion and the degree of suspicion varies with the circumstances of
each case.
6
Testamentary capacity has been interpreted as the ability of a testator to
appreciate and understand:
(a)
(b)
(c)
the nature and effect of the act of making a will,
the extent of the property of which they are disposing, and
the moral claims on their estate to which they ought to give
effect.
The testator must also be capable of appreciating these factors in relation to
each other and form an orderly desire as to the disposition of his property.
[30]
Accordingly, once the formalities of the making of a testamentary document
have been demonstrated and it has been established that the testatrix appreciates and
understands the nature and effect of making a will, the nature and extent of her
property, and the nature of the claims and benefits which the testamentary document
addresses have been established, testamentary capacity is presumed.
[31]
In this case Glen concedes that there is sufficient evidence that the codicils were
duly executed in accordance with the requisite formalities and therefore the rebuttable
presumption applies to all three codicils. However, he argues that there is evidence of
suspicious circumstances as discussed in Vout v. Hay, [1995] 2 S.C.R. 876 (S.C.C.)
surrounding the preparation of the codicils and Agnes' testamentary capacity.
Page: 11
[32]
In Vout, the court addressed the issue of how suspicious circumstances may be
raised, and the consequences which flow from the finding of a presence of suspicious
circumstances. The court held (at pp. 888-91):
... The suspicious circumstances may be raised by (1) circumstances
surrounding the preparation of the will, (2) circumstances tending to call into
question the capacity of the testator, or (3) circumstances tending to show that the
free will of the testator was overborne by acts of coercion or fraud. Since the
suspicious circumstances may relate to various issues, in order to properly assess
what effect the obligation to dispel the suspicion has on the burden of proof, it is
appropriate to ask the question "suspicion of what?" See Wright, supra, and
Macdonell, Sheard and Hull on Probate Practice (3rd ed. 1981), at p. 33.
Suspicious circumstances in any of the three categories to which I refer
above will affect the burden of proof with respect to knowledge and approval. The
burden with respect to testamentary capacity will be affected as well if the
circumstances reflect on the mental capacity of the testator to make a will.
Although the propounder of the will has the legal burden with respect to due
execution, knowledge and approval, and testamentary capacity, the propounder is
aided by a rebuttable presumption. Upon proof that the will was duly executed
with the requisite formalities, after having been read over to or by a testator who
appeared to understand it, it will generally be presumed that the testator knew and
approved of the contents and had the necessary testamentary capacity.
Where suspicious circumstances are present, then the presumption is spent
and the propounder of the will reassumes the legal burden of proving knowledge
and approval. In addition, if the suspicious circumstances relate to mental capacity,
the propounder of the will reassumes the legal burden of establishing testamentary
capacity. Both of these issues must be proved in accordance with the civil
standard. There is nothing mysterious about the role of suspicious circumstances
in this respect. The presumption simply casts an evidentiary burden on those
attacking the will. This burden can be satisfied by adducing or pointing to some
evidence which, if accepted, would tend to negative knowledge and approval or
testamentary capacity. In this event, the legal burden reverts to the propounder.
... it has been authoritatively established that suspicious circumstances,
even though they may raise a suspicion concerning the presence of fraud or undue
influence, do no more than rebut the presumption to which I have referred. This
requires the propounder of the will to prove knowledge and approval and
testamentary capacity. The burden of proof with respect to fraud and undue
influence remains with those attacking the will. See Craig v. Lamoureux, [1920]
A.C. 349; Riach v. Ferris, [1934] S.C.R. 725; Re Martin, supra.
It may be thought that proof of knowledge and approval will go a long way
in disproving undue influence. Unquestionably there is an overlap. If it is
established that the testator knew and appreciated what he was doing, in many
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cases there is little room for a finding that the testator was coerced. Nonetheless
there is a distinction. This distinction was aptly expressed by Ritchie J. in Re
Martin. At pages 765-66, he stated:
There is a distinction to be borne in mind between producing sufficient
evidence to satisfy the Court that a suspicion raised by the circumstances
surrounding the execution of the will have been dispelled and producing the
evidence necessary to establish an allegation of undue influence. The former
task lies upon the proponents of the will, the latter is a burden assumed by
those who are attacking the will and can only be discharged by proof of the
existence of an influence acting upon the mind of the testator of the kind
described by Viscount Haldane in Craig v. Lamoureux [[1920] A.C. 349], at p.
357 where he says:
Undue influence, in order to render a will void, must be an influence which can
justly be described by a person looking at the matter judicially to have caused
the execution of a paper pretending to express a testator's mind, but which
really does not express his mind, but something else which he did not really
mean.
The Position of Glen Concerning the Validity of the Testamentary
Documents
Suspicious Circumstances
[33]
Glen argues that there are suspicious circumstances in three areas, including, the
circumstances surrounding the making of the codicils, the circumstances surrounding
Agnes' testamentary capacity, and suspicious circumstances tending to show her free
will was overborne by acts of coercion or fraud.
1. The Making of the Codicils
[34]
Glen points out that in the course of eight months between August 7, 2009 and
April 19, 2010, the codicils removed him as a joint executor with the respondents and
receiving equal benefits to not being an executor at all and being completely
disinherited.
He argues that this raises suspicions about testamentary capacity and
Page: 13
possible coercion as it seems unusual to make such dramatic changes in such a short
period of time.
[35]
He states that one of the respondents, Mervin was attending meetings with
Agnes and gave instructions to McRae about the codicils which benefited him.
He
questions the propriety of how the changes were made, and also states that Agnes
appeared to be unclear about the impact that the changes to the codicils would have.
[36]
One example relied upon is a phone call that McRae received from Agnes after
the execution of the first codicil in which she said she wanted to make sure that Glen
had no control over her estate when in fact Glen's removal as executor by virtue of the
first codicil meant that he had no further control over the estate. Glen states this gives
rise to doubts about her capacity and her knowledge of the content and effect of the
first codicil.
[37]
Similarly, Glen points to the contents of McRae's notes made in respect of the
September 25, 2009 meeting which noted Agnes’ request for an assurance that Glen
did not have control over her estate, arguing that this also creates suspicion about
Agnes’ capacity and demonstrates her lack of understanding the effect of the codicil
removing Glen as an executor.
[38]
He also points to the telephone conversation between Agnes and McRae on
October 9, 2009, where Agnes wanted to either remove Glen as a beneficiary or reduce
his share of the estate. These instructions came only 13 days after she purportedly
stated to McRae on September 25, 2009, that she still wanted Glen to get his portion of
the residue of the estate.
Page: 14
[39]
Glenn states that on October 13, 2009, the day of the meeting to take
instructions for the second codicil, McRae's notes are not clear about whether Mervin
was present in the room when McRae discussed that codicil with Agnes. While McRae
states in her evidence that Mervin was not in the room when she discussed the codicil
with Agnes, Glen points out that her notes do not make that clear when contrasted with
the clear delineation between her codicil and non-codicil notes taken at the September
25, 2009 meeting.
[40]
Furthermore, Glen states that according to McRae's notes, it was Mervin who
phoned McRae to provide instructions for the third codicil, which took the only
remaining bequest away from Glen.
[41]
Finally, in this context, Glen argues that the greatest area of suspicion lies in the
fact that there are no notes whatsoever of the meetings during which the three codicils
were signed.
2) Testamentary Capacity
[42]
Glen submits that a number of factors or incidents indicate that there are
suspicious circumstances surrounding Agnes' testamentary capacity. Without detailing
each of these factors or incidents they include:
a) the fact that Agnes stopped doing the farm operation books in 2002, as it had
become too hard for her to do the books;
b) Agnes made a number of erroneous comments, including the year in which her
husband died, the amount of money she provided to each of her sons in GICs,
mischaracterizing her step-brother as her uncle, and some confusion in the course
Page: 15
of the teleconference with the hearing officer while she was applying for a
protection order.
[43]
Glen also points to the cross-examination of Agnes' doctor of more than 30 years
in which the doctor was questioned about the various infirmities Agnes was suffering
from in the last three years of her life. Glen states that on a review of those conditions
and a number of scholarly articles that drew a correlation between these conditions and
cognitive impairment, the doctor agreed with virtually all of the conclusions drawn in
these articles linking cognitive impairment to Agnes' condition.
[44]
Finally, in this context, Glen points out in his argument the extent to which
Agnes relied on various family members to assist her with issues arising out of her
medical condition, her failure to recall that Glen had fulfilled the conditions of a rental
agreement with Agnes, and her apparent failure to recall that she had agreed to allow
her mail to be redirected.
3) Acts of Coercion or Fraud Tending to show that Agnes' Free Will was
Overborne
[45]
Glen states that in addition to the evidence of suspicious circumstances noted in
the prior two categories, there is evidence tending to show coercion. This evidence
includes what Glen says were active steps by Calvin and Mervin and members of their
respective families to alienate and isolate Agnes from Glen.
He states that this
commenced when he discovered that his nephews had taken more grain than they
were entitled to from the farm operation in 2007.
[46]
Examples of these kind of incidents include:
Page: 16
a) the failure of Calvin to properly inform Agnes of why the discord between Glen
and the rest of the family existed;
b) the inability of Glen to communicate with his mother because of the steps the
others took to assist Agnes in obtaining a protection order;
c) that the changes to the codicil were based on information provided to McRae by
the other family members while Glen was precluded from communicating with
her;
d) the extent of the involvement of the other family members with Agnes' medical
care, legal advice and financial information;
e) the changing of the locks on Agnes' house and the redirecting of her mail by the
other family members; and
f) Mervin's awareness of the contents of Agnes' testamentary documents
suggesting that he had either discussed them with Agnes, or was present when
these were executed when he ought not to have been there since he stood to
benefit from these changes.
The Obligation of the Respondents to Demonstrate Testamentary Capacity on
a Balance of Probabilities Where Suspicious Circumstances Exist
[47]
It is Glen's position that on the basis of having met the standard of establishing
suspicious circumstances in all three categories enunciated in Vout, the onus now shifts
to the respondents, Mervin and Calvin, to prove on a balance of probabilities that Agnes
had the requisite testamentary capacity at the time she executed the three codicils.
Page: 17
[48]
I have previously referred to the decisions of Vout and Sheen, which the
applicant is relying on in this context, but it is also instructive to refer to the decision of
Slobodianik et al. v. Podlasiewicz et al., 2003 MBCA 74, 173 Man.R. (2d) 287,
which sets out the nature of the burden on the party propounding a testamentary
document where suspicious circumstances are present. In this regard, the court cites
with approval the test set out in Banks v. Goodfellow (1870), LR 5 Q.B. 549 (Eng.
Q.B.), at 565 which provides:
... It is essential to the exercise of such a power that a testator shall understand
the nature of the act and its effects; shall understand the extent of the property
of which he is disposing; shall be able to comprehend and appreciate the claims
to which he ought to give effect; and, with a view to the latter object, that no
disorder of the mind shall poison his affections, pervert his sense of right, or
prevent the exercise of his natural faculties - that no insane delusion shall
influence his will in disposing of his property and bring about a disposal of it
which, if the mind had been sound, would not have been made.
[49]
Furthermore, in Slobodianik, the court states that a solicitor should meet the
following standard when taking instructions from an elderly testator where suspicious
circumstances are present (at paras. 28-30):
[28] As to the role of a solicitor taking instructions from an elderly testator, he
quoted with approval the following passage from Murphy v. Lamphier (1914),
31 O.L.R. 287 (H.C.) at 318 (at para. 81):
“A solicitor is usually called in to prepare a will because he is a skilled
professional man. He has duties to perform which vary with the situation and
condition of the testator. In the case of a person greatly enfeebled by old age or
with faculties impaired by disease, and particularly in the case of one labouring
under both disabilities, the solicitor does not discharge his duty by simply taking
down and giving legal expression to the words of the client, without being
satisfied by all available means that testable capacity exists and is being freely
and intelligently exercised in the disposition of the property. The solicitor is
brought in for the very purpose of ascertaining the mind and will of the testator
touching his worldly substance and his comprehension of its extent and character
and of those who may be considered proper and natural objects of his bounty.
The Court reprobates the conduct of a solicitor who needlessly draws a will
without getting personal instructions from the testator, and, for one reason, that
Page: 18
the business of the solicitor is to see that the will represents the intelligent act of
a free and competent person.”
[29] Guided by these principles, Hunter, J., concluded that the solicitor (at
para. 93):
“... did not go far enough, given the suspicious circumstances ... to substantiate
testamentary capacity. Further inquiries needed to be made to ascertain Ms.
Peter's capacity. Perhaps those inquiries were made, but if so, they were not
documented and [the solicitor] has a very limited recollection of their
conversations. If a solicitor has good reason to be concerned about testamentary
capacity - and such seemed clearly to be the case here - then a systematic
assessment of the testator's capacity should take place, and if doubts remain
then there should be an assessment by a physician or a psychologist.”
[30] In Cousins Estate, Re, another will case
circumstances existed, Cullity, J., observed (at para. 70):
where
suspicious
“The obligations of solicitors when taking instructions for wills have been
repeatedly emphasised in cases of this nature. At the very least, the solicitor
must make a serious attempt to determine whether the testator or testatrix has
capacity and, if there is any possible doubt - or other reason to suspect that the
will may be challenged - a memorandum, or note, of the solicitor's observations
and conclusions should be retained in the file: see, for example, Maw v. Dickey
(1974), 6 O.R.(2d) 146 (Ont. Surr. Ct.), at pages 158-59; Eady v. Waring
[(1974), 2 O.R.(2d) 627 (Ont. C.A.)] ..., at page 635; Murphy v. Lamphier ...
at pages 318-21. Some of the authorities go further and state that the solicitor
should not allow a will to be executed unless, after diligent questioning, testing
or probing he or she is satisfied that the testator has testamentary capacity.
This, I think, may be a counsel of perfection and impose too heavy a
responsibility. In my experience, careful solicitors who are in doubt on the
question of capacity, will not play God - or even judge - and will supervise the
execution of the will while taking, and retaining, comprehensive notes of their
observations on the question.”
[50]
Glen argues that since the respondents are lacking in objectivity in their evidence
because they stand to gain by a finding in their favour, he states that it is the evidence
of Agnes' medical doctor, Dr. Christopher John Ibbitt and the two lawyers, McRae and
Troup that ought to form the focus of my analysis.
Dr. Christopher John Ibbitt's Evidence
[51]
The affidavit of Dr. Ibbitt itself is brief. It states that he was Agnes' physician for
over 30 years and that he examined her on a regular basis. It was his opinion that
Page: 19
Agnes was capable of providing instructions with respect to her estate on all of the
dates on which the codicils were executed.
[52]
Glen examined Dr. Ibbitt extensively on Agnes' medical records and specifically
examined him on her medical condition in the last three years of her life. It is the
position of Glen that it is Dr. Ibbitt's evidence that a review of all of the scholarly
articles put to him in his examination makes out a good case for Agnes having suffered
cognitive impairment and that the respondents have not made out a case in meeting
their burden that Agnes possessed the necessary testamentary capacity.
The Lawyers' Evidence
[53]
Glen takes the position that the evidence of McRae and Troup demonstrates,
inter alia, that:
a) They did not meet the obligation expected of lawyers involving in preparing and
witnessing testamentary documents;
b) The notes taken by the lawyers in relation to the making of the codicils, including
the execution of the codicils, are deficient or non-existent;
c) That McRae did not ask Agnes the appropriate questions to determine
testamentary capacity;
d) The recollection of the lawyers concerning the process followed in executing the
codicils was less than complete; and
e) The recollections and notes of the lawyers are deficient in respect of
conversations with Agnes concerning her assets, medications she may have been
Page: 20
on which might be relevant to her testamentary capacity and various incidents
involving family members.
[54]
Glen states that the totality of the evidence of the lawyers is insufficient to
discharge the respondents’ burden of proof regarding Agnes' testamentary capacity as
they fall short of the requirements imposed upon them as enunciated in the
Slobodianik decision.
Undue Influence
[55]
Glen states that if the respondents have satisfied the burden of proof on them to
prove that Agnes had the requisite testamentary capacity to execute the three codicils,
the onus then shifts to Glen to demonstrate that Agnes was unduly influenced to do so.
He relies on the decision of the Supreme Court of Canada in Geffen v. Goodman
Estate, [1991] 2 S.C.R. 353 where the court held (at p. 377):
What then is the nature of the relationship that must exist in order to
give rise to a presumption of undue influence? Bearing in mind the decision in
Morgan, its critics and the divergence in the jurisprudence which it spawned, it is
my opinion that concepts such as "confidence" and "reliance" do not adequately
capture the essence of relationships which may give rise to the presumption. I
would respectfully agree with Lord Scarman that there are many confidential
relationships that do not give rise to the presumption just as there are many
non-confidential relationships that do. It seems to me rather that when one
speaks of "influence" one is really referring to the ability of one person to
dominate the will of another, whether through manipulation, coercion, or
outright but subtle abuse of power. I disagree with the Court of Appeal's decision
in Goldsworthy v. Brickell, supra, that it runs contrary to human experience to
characterize relationships of trust or confidence as relationships of dominance.
To dominate the will of another simply means to exercise a persuasive influence
over him or her. The ability to exercise such influence may arise from a
relationship of trust or confidence but it may arise from other relationships as
well. The point is that there is nothing per se reprehensible about persons in a
relationship of trust or confidence exerting influence, even undue influence, over
their beneficiaries. It depends on their motivation and the objective they seek to
achieve thereby.
Page: 21
[56]
In this respect Glen points to the evidence which he has relied on in the context
of establishing "suspicious circumstances". He states that this evidence demonstrates
that the respondents exercised a persuasive influence over Agnes since 2007, which
resulted in a dependency which allowed them to carry out their objective of alienating
Agnes from Glen and convince her to disinherit him.
The Position of the Respondents Mervin and Calvin Concerning the Validity of
the Testamentary Documents
[57]
The respondents maintain that at all times Agnes had testamentary capacity and
there were no suspicious circumstances or undue influence surrounding the making of
the codicils.
[58]
The evidence of the respondents outlines the deteriorating relationship between
the parties since approximately 2007. The respondents state that they attempted to
resolve concerns raised by Glen about the management of the farm and
misappropriation of farm assets, but the matters were not resolved and the problems
escalated. As a consequence of this deterioration in their relationship, Agnes spoke to
McRae about changes to the will she had executed in 2001. As a result the first codicil,
which removed Glen as an executor, was executed on August 7, 2009.
[59]
The relationship continued to deteriorate. This resulted in physical altercations
between family members and also involved a dispute concerning the life estate on
which Agnes resided. Finally, Agnes obtained a protection order against Glen which
remained in effect until her death.
Page: 22
[60]
The respondents state that as a result of Glen's unwillingness to allow the
respondents’ access to farm equipment purchased together for the farm operation,
Agnes decided to remove Glen as a beneficiary from the Will.
[61]
They state that the second codicil was executed on October 15, 2009, but that
Glen continued to make things difficult for his mother.
The fact that Glen and his
mother lived in close proximity and even shared a common driveway contributed to this
state of affairs.
[62]
In September of 2010, after Agnes had executed the third codicil the previous
April, Agnes filed a civil lawsuit against Glen in respect of the position that Glen was
taking about the life estate which she held pursuant to the bequeath from her husband.
Mediation failed and the parties continued to fight. For example, reference is made to
Glen turning off the water to Agnes' house, which prevented Home Care services from
helping Agnes with a shower.
Evidence on Testamentary Capacity
The Medical Evidence of Dr. Ibbitt
[63]
The respondents rely on the affidavit of Dr. Ibbitt dated March 11, 2014, who
concludes that based on his regular examinations of her over the course of more than
30 years it was his opinion that Agnes was capable of providing instructions with
respect to her estate on the dates she executed the codicils.
[64]
Dr. Ibbitt was cross-examined extensively by counsel for Glen on the basis of
Agnes' medical records and numerous scholarly articles on August 13, 2014, and again
on March 1, 2016.
The first examination consists of approximately 53 pages of
Page: 23
questions and answers, while the second examination is almost 250 pages of questions
and answers.
[65]
The respondents point out that at the conclusion of those examinations the
following question is put to Dr. Ibbitt on redirect by counsel for the respondents:
Question 978: The question I have for you is this: After going through those
questions and being shown those portions of the exhibits by my friend, has that
altered or affected or changed in any way your evidence in your Affidavit of
March 1[sic], 2014?
[66]
Dr. Ibbitt replies as follows:
Answer: No. I think it made a good cross-examination case for cognitive
impairment, but I was not aware of her being cognitively impaired to not make
the right decisions for her family.
The Evidence of Agnes' Lawyers
[67]
The evidence of McRae was introduced by way of affidavit dated February 24,
2014. In that affidavit she sets out the nature of her practice, including the fact that
since her call to the bar in 2006, she has prepared approximately 70 wills and codicils.
[68]
In the course of her affidavit, she outlined her interaction with Agnes in relation
to the three codicils. The affidavit details the background and history that prompted
the changes to the Will as a result of the execution of the codicils. This includes her
telephone conversations and meetings with Agnes, in addition to setting out the nature
of her relationship with Glen. It also acknowledges the extent to which Mervin was
involved in these interactions and meetings.
It sets out the reasons that Agnes
provided as to why the changes to the testamentary documents were made which
ultimately resulted in the complete exclusion of Glen a beneficiary under Agnes' Will.
[69]
The following statements by McRae are noted in particular:
Page: 24
a)
She spoke with Agnes on the telephone on at least five occasions as she
prepared the changes she was seeking to have made in her Will;
b)
She spoke with Mervin over the telephone on one occasion but did not
take any instructions from him;
c)
She assisted Agnes with other matters during this time including land
titles matters, cancellation of a farmland lease and the matter of her life
estate;
d)
Her discussion with Agnes as to why she wished to remove Glen as an
executor of the Will;
e)
Before Agnes signed the first codicil, McRae satisfied herself that Agnes
understood what she was doing, that she understood the extent and
scope of her assets, that she understood the effect of her decision on her
son, and that she was alert, oriented and had capacity to provide
instructions;
f)
The reasons Agnes gave her for her decision to remove or decrease Glen's
interest as a beneficiary under the Will;
g)
Agnes advised her that no one was persuading her to make additional
changes;
h)
The execution of the second codicil took place after McRae was sure that
Agnes was alert, oriented and had capacity to provide instructions and
after a review of the changes being made;
Page: 25
i)
That prior to the execution of the third codicil, she had a conversation
with Agnes discussing the impact of the changes to the codicil on Glen
and why she was making the changes; and
j)
That she satisfied herself prior to the execution of the third codicil, that
Agnes was alert, oriented and had the capacity to provide the instructions.
In this context she also confirmed with Agnes that she understood the
consequences of the changes, the extent of her property and the extent
of her family members, as well as confirming that no one was persuading
her to make these changes.
[70]
In respect of the affidavit of Troup, the evidence indicates that she assisted
Agnes with obtaining the protection order after Agnes advised her of the difficult nature
of the relationship with her son Glen. It is noted that although Glen retained counsel to
set aside the protection order granted by the hearing officer, after numerous
adjournments, the matter was eventually struck off the list as a result of Glen's failure
to attend the hearing.
[71]
Furthermore, in September 2010, some six months after the execution of the last
codicil, Troup, acting pursuant to instructions from Mervin acting under the power of
attorney granted by Agnes, initiated a civil application for the interpretation of her late
husband's will in order to determine the extent of Agnes' life estate.
Conclusions regarding the testamentary capacity of Agnes and whether there
were suspicious circumstances surrounding the making of the three codicils
Page: 26
[72]
After a review of the evidence, I have come to the conclusion that Agnes had
testamentary capacity at the time of making the three codicils. I accept the opinion of
her personal physician of over 30 years who examined her on a regular basis and stated
in his affidavit that Agnes was at all times prior to her death of sound mind and body "alert, oriented, aware of her surroundings and capable of managing both her property
and her personal affairs." Furthermore, Dr. Ibbitt stated she was capable of providing
instructions with respect to her estate on the dates on which she executed the codicils.
[73]
Counsel for Glen suggests that the doctor’s final answer at the end of his cross-
examination on March 1, 2016 (answer to Question 978) should be interpreted as
meaning (and I paraphrase) that he was not aware that of her being "cognitively
impaired", but in light of the scholarly articles and conclusions found in those articles he
now realizes that there was a good case to be made that she was cognitively impaired.
[74]
I do not interpret his evidence in that fashion. In my opinion, Dr. Ibbitt does not
dispute the conclusions found in those scholarly articles, and that although he agrees
that people who have the same health concerns that Agnes had may be cognitively
impaired, it was his conclusion that she was not cognitively impaired.
[75]
Dr. Ibbitt was specifically asked (at question 978 of the transcript) whether the
information brought to his attention during his cross-examination "altered or affected or
changed in any way" his affidavit evidence. His reply was: "No. I think it made a good
case for cognitive impairment, but I was not aware of her being cognitively impaired to
not make the right decisions for her family."
Page: 27
[76]
In my opinion, his reply does not bear the interpretation suggested by counsel
for Glen. It is my understanding of his answer that he does not believe that Agnes was
cognitively impaired in her ability to make decisions.
[77]
Counsel for Glen also argues that in light of the suspicious circumstances that
should have been apparent to the lawyers retained by Agnes to deal with the codicils
and the other litigation, including the application for the protective order, there is an
onus on the respondents to demonstrate on a balance of probabilities that Agnes had
testamentary capacity, the test of which is set out in Banks and cited with approval in
Slobodianik.
[78]
Glen was particularly critical of the conduct of McRae and Troup arguing that it
does not meet the obligation expected of lawyers involving the preparing and
witnessing testamentary documents. In this respect Glen relies on the findings of the
Manitoba Court of Appeal in Slobodianik.
[79]
It is my understanding of the Slobodianik case, that the issue being addressed
by the court there is the steps that a lawyer must take when drafting testamentary
documents once he is aware of suspicious circumstances surrounding, inter alia, the
testamentary capacity of a testator or testatrix. In that decision the court holds (at
paras. 26-27):
[26] In my opinion, the finding of the trial judge that the testator had the
mental capacity to make a will on September 27, 1990, is unreasonable and
cannot stand. Dr. Lebedin’s evidence does more than merely raise a suspicious
circumstance; it is uncontradicted that there was only a possibility that the
testator possessed the required capacity to make a will during the relevant time
and that, in his opinion, the testator did not. There can be no doubt that the
trial judge is entitled to accept cogent and compelling evidence contradicting this
opinion. See Abrahamson Estate. But such evidence did not exist in this case.
The evidence of James Shepherd, lacking as it does any detail concerning the
Page: 28
facts to support his assertion that the testator was in control of his faculties
during 1990, is entitled to little weight. In the end, it comes down, as the trial
judge himself seemed to recognize, to the evidence of Mr. Iwanchuk.
[27] Concerning the duty of a lawyer taking instructions once suspicious
circumstances have been raised, the decision in Peters Estate is particularly
apt. Hunter, J., opined (at para. 76):
“If the court concludes that suspicious circumstances exist, of a nature as
described above, the propounder of the will must also prove mental capacity, the
test for which was set out in Banks v. Goodfellow (1870), L.R. 5 Q.B. 549
(Eng.Q.B.), at 565: ...”
[80]
In Slobodianik the testator had been assessed as follows (at para. 3):
[3]
Following his move to the Maples Personal Care Home, the testator’s
difficulties were mainly of a physical nature, but as time went on he began to
exhibit aggressive and uncooperative behaviour. As a result, a referral was
made to Dr. Walter W. Lebedin, a psychiatrist, for a review. In an examination
and interview that took place on March 2, 1990, the testator was assessed as
being “grossly confused … disoriented for time and place,” and “extremely poor
concentration and short term memory – no insight and poor judgment.” He was
diagnosed as having dementia, secondary to a stroke or “chronic brain
syndrome”. This was described as a permanent condition. Dr. Lebedin testified
at trial that the testator would be unable to execute a will and properly
understand it, “based on the observed defects, I would find it very difficult to
believe that he [the testator] had this capacity”. But he agreed that it was
“possible” it could have become better.
[81]
Furthermore, about two months prior to the execution of the will by Mr.
Slobodianik the court noted (at para. 11):
[11] Dr. Lebedin re-examined the testator on August 5, 1991. He noted there
was “some concern about the validity of the current power of attorney obtained
by stepson.” His diagnosis was “much the same as my initial assessment of
March ’90.” He concluded that the testator’s condition had not improved. He
noted that the testator “is not able to understand the implication of his move [a
suggestion by the male respondent that he move to Toronto] – very suggestible
– poor insight and judgment.” He recommended that the office of the Public
Trustee take over immediate supervision of the testator’s person and estate.
[82]
It is my opinion that in this case, unlike the Slobodianik matter, the medical or
other evidence does not raise suspicious circumstances and therefore the more onerous
Page: 29
duty on a lawyer taking instructions once suspicious circumstances have been raised is
not applicable here.
[83]
In this case, the testatrix had a number of telephone conversations with counsel.
She attended at counsel's office to execute the testamentary documents, and McRae
advises in her affidavit that Agnes provided her with the reasons why she wanted the
Will changed as well as why she made additional changes pursuant to the other
codicils.
[84]
In the context of all of the evidence and the rapid deterioration of the
relationship between Agnes and Glen and the reasons she provided for executing the
three codicils, I am not persuaded that the making of these changes indicate the
presence of suspicious circumstances.
[85]
The fact that Agnes called McRae after the first codicil had been executed to
make certain that Glen did not have any further control over her estate, does not give
rise to suspicious circumstances indicating confusion on her part. Indeed, it reinforces
the fact that it was her intention to remove Glen as an executor and that she wanted to
be assured that this was in fact what had been done.
[86]
Glen raises a concern that McRae was unable to recall the specifics of the legal
test set out in Banks v. Goodfellow. On that basis, Glen argues that when McRae
states throughout her evidence that she asked Agnes the appropriate questions to
determine her testamentary capacity on the dates on which Agnes signed the codicils,
one has to question which questions in fact were being asked, particularly in light of the
lack of extensive notes.
Page: 30
[87]
Having reviewed the sworn affidavit of McRae, I am satisfied that she in fact
asked those questions and made her determinations as to Agnes' testamentary capacity
on the basis of the answers she received. Those questions and the opinion she arrived
at are consistent with the legal tests that have been established in order to conclude
that Agnes had the requisite testamentary capacity.
This is unlike the situation
considered by the Court of Appeal in Slobodianik, where the court held that in
reviewing the lawyer's evidence in its entirety (at para. 33):
[33] ... it is not clear ... why he was of the view that he could safely take
instructions. His conclusion is plain enough, but the facts to support it are not. ...
[88]
I am satisfied that McRae took the steps that were appropriate in the
circumstances in order to confirm that Agnes knew what she was doing, that she
understood the extent and scope of her assets, that she understood the effect of her
decision on her son Glen, and that she was alert, oriented and had capacity to provide
instructions. Both the conclusion and the facts to support it are "plain enough" here.
[89]
In my opinion, her conclusion in this respect are consistent with the medical
evidence of Dr. Ibbitt and do not raise the same concerns that led the court to conclude
in Slobodianik that the presence of suspicious circumstances was clearly established.
[90]
I am satisfied that McRae took the necessary steps to satisfy herself that Agnes
had testamentary capacity when she executed all three codicils and that these steps
were appropriate on the basis of what McRae was aware of at the time. Furthermore, I
am satisfied on the basis of the evidence that McRae may not have been specifically
aware of, including the medical opinion of Dr. Ibbitt, that the conclusions she formed
about Agnes' testamentary capacity and the steps she took were reasonable.
Page: 31
[91]
There are a number of incidents or examples referred to by Glen, which he
suggests raise the likelihood of suspicious circumstances surrounding the testamentary
capacity of Agnes. Many of these are set out in paragraph 54 of the applicant's brief.
[92]
One of these examples is based on the transcript of the application by Agnes for
the protection order against Glen. This proceeding took place by way of teleconference
with Agnes being at the Headingley, Manitoba RCMP detachment while the hearing
officer was at the courthouse in Selkirk, Manitoba. During the course of her evidence,
the hearing officer asks her who is waiting outside the room. She responds that: "You
are." When further prompted she correctly states that it is her daughter-in-law Cathy.
[93]
In reviewing this exchange in particular, it is my opinion this is simply evidence
of a slight misunderstanding about what was being asked of her. Indeed, the entire
transcript provides a great deal of insight into the ability of Agnes to respond to
questions in a forum that no doubt was unfamiliar to her. It also demonstrates that
although she may have referred to her step-brother as her uncle in one brief reference,
generally speaking, she had a good grasp of detail and was able to communicate quite
effectively.
She clearly understood the nature of the proceeding and the impact it
would have on Glen if the order was granted.
[94]
Glen also points out that in the protection order proceeding, Agnes said she gave
each of her sons $3,500, when in fact the amount was $40,000. However, a review of
the transcript also shows that Agnes quickly attempted to correct herself after
mentioning the $3,500 figure without any intervention or prompting.
Although she
Page: 32
could not recall the exact amount she immediately stated: "... it was more than that. I
can't, I don't know the exact number."
[95]
This hearing took place on September 16, 2009, about five weeks after the
execution of the first codicil and about a month before the execution of the second
codicil. A reading of the transcript of this court hearing on the whole, persuades me
that she had a good grasp of that rather unique situation and that she was alert,
oriented and had the capacity to answer questions in a responsive, detailed and
appropriate manner.
[96]
In my opinion, her testimony at the protection order hearing corroborates
McRae's conclusion regarding the testamentary capacity of Agnes.
The evidence
presented as a whole by Glen does not meet the standard set by the Supreme Court of
Canada in Vout in order to demonstrate suspicious circumstances surrounding the
preparation of the codicils and Agnes' testamentary capacity. I am satisfied that Agnes'
free will was not overborne by acts of undue influence, coercion or fraud.
[97]
In respect of the codicils, McRae made the appropriate inquiries and satisfied
herself that these changes reflected Agnes' choice and that they were not made at the
suggestion of someone else. The reasons she gave for wanting to make the changes
make sense in the context of what McRae knew at the time after satisfying herself that
Agnes had the requisite testamentary capacity. In my opinion, all of the evidence here
establishes that McRae could and did properly take instructions from Agnes.
[98]
However, if I have misapprehended the nature of the standard set by Vout and
erred in my conclusion that the evidence presented does not raise suspicious
Page: 33
circumstances, I am satisfied that the respondents have demonstrated on a balance of
probabilities that each of the codicils was executed by Agnes with the appropriate
degree of knowledge, approval and testamentary capacity.
[99]
Accordingly, I find that the codicils are valid and the application to revoke the
grant of probate granted to Mervin Fred Schrof by Dewar J. on September 12, 2011 in
the estate of Burnadine Agnes Schrof is dismissed.
Other Relief Claimed
[100] Glen also seeks a determination as to his rights in respect of the quarter section
and the RBC investment, as well as a number of other chattels and personal property
also set in the various subparagraphs of paragraph 1(c) of the application.
[101] It is apparent to me that there are substantial disputes about material facts here
in respect of the ownership of or entitlement to this property. For example, while the
respondents claim that the proceeds of the GIC that was originally in the name of both
Glen and Agnes are subject to a resulting trust in favour of Agnes’ estate, it appears
that they have not treated similar GICs, held jointly in the name of each respondent
and Agnes, as estate property. Furthermore, although I attempted to have the parties
resolve the issue of the ownership of the other property set out in paragraph 1(c) of the
application on their own during the course of the hearing, they were unable to do so.
Listening to the position of the parties in that regard it is clear to me that there is no
common factual basis on which a court can determine the issue of the ownership of this
property in the context of this type of proceeding.
Page: 34
[102] In light of the history of the ongoing dispute between the parties as evidenced in
this proceeding as well as other legal proceedings, it is almost certain that it will be
necessary to make additional findings of fact, if not credibility, in order to make the
required determinations as to ownership or entitlement. The affidavit evidence and the
cross-examinations on those affidavits are not an appropriate basis for a trier of fact to
make those determinations.
[103] The comments of the court in Garwood in this respect (at paras. 52-56), are
applicable here and bear repeating:
[52] Applications where material facts are in dispute can be determined by
affidavit evidence only in limited circumstances. One well-known example is
Blair Athol Farms Ltd. v. Black (1996), 112 Man.R.(2d) 16 (Q.B.), where the
interpretation of a lease was at the heart of the application, not the material
facts in dispute. The case law demonstrates, appropriately so in my view, that
judges are loathe to adjudicate a matter on the basis of affidavits alone in the
face of a substantial factual dispute involving issues of credibility. See, for
example, Kim et al. v. Lakeview Hotel Development Inc. et al. (1997), 119
Man.R.(2d) 150 (Q.B.); Keystone Colony of Hutterian Brethren et al. v.
James Valley Colony of Hutterian Brethren et al. (1999), 135 Man.R.(2d)
130 (Q.B.); and Litz v. Litz et al. (1996), 114 Man.R.(2d) 224 (Q.B.).
[53] Jurisprudence from Ontario also demonstrates this reluctance to
adjudicate on affidavit evidence in these circumstances.
[54] In Glaves (Gordon) Holdings Ltd. v. Care Corp. of Canada Ltd. et
al. (1999), 121 O.A.C. 239 (Div. Ct.), aff’d (2000), 133 O.A.C. 111 (C.A.),
Brockenshire, J., writing for the majority, opined (at para. 38):
“The general rule is that the court will not determine genuine issues of credibility
on the hearing of an application. Such issues should be decided at trial by the
trier of fact. …”
[55] In Newcastle Recycling Ltd. et al. v. Clarington (Municipality)
(2005), 204 O.A.C. 389; 16 M.P.L.R. (4th) 157 (C.A.), Juriansz, J.A., wrote about
the role of an application judge (at para. 11):
“It is beyond the proper role of an application judge to determine the credibility
of a deponent to resolve material facts which are disputed and which may affect
the result: Moyle v. Palmerston Police Services Board (1995), 25 O.R. (3d)
127 (Ont. Div. Ct.), at p. 136; Yoo v. Kang, [2002] O.J. No. 4041 (Ont. Sup.
Ct.), at para. 24.”
Page: 35
[56] As noted in the above quote, Juriansz, J.A., referred to Yoo et al. v.
Kang, [2002] O.T.C 774. In that case, Paisley, J., wrote (at para. 24):
“… It is not open to a judge on an application, where affidavits and examinations
in transcript form are the only evidence before the court, to decide the credibility
of the witnesses in anything other than the clearest of cases, where the facts are
in essence unopposed, or the facts are so clear that there is no genuine issue to
be tried.” (emphasis added)
[104] Accordingly, in light of the substantial dispute regarding material facts in respect
of the ownership or entitlement of this property and based on my opinion that it will
almost certainly be necessary to make additional findings of fact or even credibility in
order to resolve the dispute over its ownership, pursuant to Queen's Bench Rule 38.09 I
am declining to make a determination in respect of the quarter section and the RBC
investment, as well as the other chattels and personal property set out in the various
subparagraphs of paragraph 1(c) of the application. Instead, I am directing a trial to
determine entitlement to or ownership of the quarter section, the RBC investment and
the personal property set out in paragraph 1(c) of the application.
[105] If counsel are unable to agree on mutually satisfactory arrangements in this
regard that meet with the approval of the court, I would invite counsel to contact the
court to make arrangements to make representations so that I can provide such
directions and impose such terms as may be just in order that the trial of these issues
may proceed.
Conclusion
[106] Upon the hearing of this application and after the consideration of the evidence
and arguments of counsel, it is my decision that:
Page: 36
a)
The three codicils are valid and the application to revoke the grant of
probate granted to Mervin Fred Schrof by Dewar J. on September 12,
2011, in the estate of Burnadine Agnes Schrof is dismissed;
b)
I decline to make a determination of the rights of the applicant in respect
of the quarter section and the RBC investment, as well as the other
chattels and personal property also set out in the various subparagraphs
of paragraph 1(c) of the application and instead, I am directing a trial to
determine the issues of entitlement to or ownership of the quarter
section, the RBC investment and the personal property set out in
paragraph 1(c) of the application;
c)
To the extent that counsel are unable to agree on mutually satisfactory
arrangements for the conduct of a trial of these issues that meet with the
approval of the court, I would invite counsel to contact the court to make
arrangements to make representations before me so that I can provide
such directions and impose such terms as may be just in order that the
trial of these issues may proceed;
d)
The issue of costs will be dealt with upon the conclusion of the trial of the
issues which I have directed.
J.