Karpinski v. Zookewich Estate Case Comment

by Robertson Stromberg | Dec 5, 2018 | Articles & Research, Estate Litigation, James D Steele

This article offers an overview of the 2018 Saskatchewan Court of Appeal decision in Karpinski v. Zookewich Estate, 2018 SKCA 56.

Karpinski offers helpful reminders to parties who wish to challenge a Will based on a concern that the testator was subjected to undue influence. Namely, Karpinski reminds parties that while certain “general” concerns may be genuinely troubling to them as a family member of the deceased, such unease may not provide the actual “evidence” required to convince a court.

Introduction:

The deceased (Ernie) had died in his early eighties. Ernie had been a lifelong bachelor and had two siblings, a brother (Ed) and a sister (Mary). Ernie worked hard in his life, and at his death in 2016, he owned eleven quarters of farmland.

The deceased made a Will dated April 12, 2006, in which he appointed his sister and her husband, as the executors and sole beneficiaries of the estate. In particular, the Will stated that:

As I have not left anything to my brother [Ed], I wish to confirm that the reason for doing so is because I feel my brother is well off and has no need for further funds or assets. I also ask my sister Mary and her husband Al to give consideration to sharing my estate bequeathed to them herein, with their children and grandchildren.

The year before Ernie died, Ed discovered that Ernie was living in a nursing home. Ed later said that Ernie told him that this was Mary’s decision and not Ernie’s own. It was also at this time that Ed became aware that an auction of farm equipment was taking place at the family farm. It appears that this auction led to considerable friction in the family, as Ed believed Ernie still owed him $55,000 for co-owned equipment Ed had left behind on the farm.

According to Ed, when he spoke to Ernie about this, Ernie stated that he would pay Ed the money he owed and that all of his nieces and nephews were to have a share in his estate. Ed also stated that on multiple occasions, Mary was present when Ernie said that he was giving all of his assets to his nieces and nephews, including Ed’s daughter, Christine.

Ed decides to challenge Ernie’s Will:

When Ernie died, his Will left all to Mary and her husband, Al. Ed brought an application to make Al and Mary prove the Will in solemn form (i.e. to incur the full delay and expense of a trial, which would prove the will was the voluntary and capacitated result of Ernie’s wishes). Ed argued that Mary and Al, had exerted pressure on the deceased, when Ernie made his will.

The Court of Queen’s Bench decision:

The matter went to a hearing before the Queen’s Bench judge in Chambers. In the resulting decision (reported at Karpinski v. Lozinski , 2017 SKQB 278 (Sask. Q.B.)), the Chambers judge denied Ed’s challenge.

The Chambers judge first set out the test for dealing with Will challenges. Namely, the challenger must “point to some evidence which, if accepted at trial, would tend to negative testamentary capacity or support a finding of undue influence” (see Bachman v. Scheidt, 2016 SKCA 150, [2017] 2 W.W.R. 301 (Sask. C.A.) at para 16).

The Chambers judge also noted that the court, in looking at the evidence, should focus on the evidence dating from the time of when the deceased actually executed the Will. Here, the Chambers judge stated that the best evidence came from his lawyer’s file and preparation documents (as these documents were obviously made at the same time as the Will).

Regarding this evidence, the Chambers judge stated:

[34] … There is nothing in the file to suggest any concern with respect to testamentary capacity, and indeed there was an execution by Mr. Kyba [the lawyer who drew Ernie’s Will] of a certificate that provided the testator had the capacity to understand the nature and effect of the Power of Attorney he was signing. That is not to say that the requirements of capacity for a Power of Attorney are the same as the requirements for capacity of a Will. It does, however, go a long way towards the question of capacity.

Ultimately, in dismissing Ed’s arguments of undue influence, the Chambers judge held:

• Statements made by Ernie years after the execution of the Will did not raise a question of suspicious circumstances at an earlier time of signing the Will;
• Despite Ernie’s mental or educational deficiencies as alleged by Ed, Ernie was able to run a successful farming operation from 2007 until 2016 without any apparent assistance. That suggested Ernie had enough sophistication to understand the contents of his (paras 36-40 of the Chambers’ decision);
• When it came to the issue of undue influence, the Chambers judge held that the actual direct and firsthand evidence before him did not support a finding that Mary or Al had exercised any undue influence at the time of the Will. Further, any contradictory evidence regarding certain events that occurred years after the signing of the Will was “peripheral” to the issues in this application.

Decision of the Court of Appeal:

Ed appealed this decision. However, the Court of Appeal dismissed the appeal, on the same grounds as the Chambers judge.

Ed’s argument on undue influence:

First, and most importantly, the Court of Appeal held that the Chambers judge had appropriately rejected the argument of undue influence. The evidence put forth by Ed failed to point to any firsthand evidence of manipulation, coercion, or an abuse of power by Mary and Al over Ernie. Specifically:

• Ernie’s lack of education and sophistication did not prevent him from running a successful farming operation from when his father died in 2007 to the date of his death without any assistance. The farming operation forms the basis for the substantial assets that Ernie accumulated during his life (paras 36, 40 and 44 of the Chamber’s decision);
• There was no firsthand evidence to support Ed’s contention that Mary and Al exerted such control over Ernie that his will was overborne “so that in truth what he or she does is not his or her own act” (para 45);
• There was no evidence to support the notion that Mary prepared Ernie’s Will (para 46);
• The evidence from Ed, that Ernie advised them that his intention was to benefit all his nieces and nephews in his Will, was not probative evidence of any undue influence at the time of the making of the Will. After all, the Will had occurred years prior to this stated intention (para 47);
  • Ed’s contention that Ernie did not like Mary’s husband was Ed’s subjective opinion only and does not support evidence of actual exertion of undue influence (para 48).

Ed’s argument that the Chamber’s judge failed to consider Ernie’s “requisite knowledge and approval of the Will”:

Second, Ed argued that the Chambers judge erred when he only examined the issue of testamentary capacity, instead of also whether Ernie had the requisite knowledge and approval of the Will’s provisions.

The Court of Appeal found that the Chambers judge had in fact considered the issue of knowledge and approval in his analysis. The Court of Appeal pointed to the following passage from the Chambers’ decision:

… None of the circumstances alleged by the applicant create suspicion in the mind of the Court that Ernie knew and approved [sic] the contents of his Will. The cumulative effect of the arguments made in this regard do not advance the notion that a genuine issue to be tried exists with respect to testamentary capacity.

[Emphasis added, by the Court of Appeal]

Even if the Chambers judge had only examined the issue of testamentary capacity as alleged by Ed, the presence proof of Ernie’s capacity, combined with execution, was enough to discharge the burden of validity. This was since the testator’s knowledge and approval will, in this case, be presumed by a court.

To this, Ed argued that, since Mr Kyba, the lawyer, had predeceased Ernie, there was no actual proof that the Will was read over by Ernie and that Ernie understood it.

However, the Court of Appeal held, even though there was technically no sworn evidence that Ernie had either the Will read to him or had read it over, the Chambers judge noted the following facts, as tending to confirm Ernie’s knowledge and approval of the contents of the Will:

• Ernie met with Mr. Kyba on April 10, 2006, and April 12, 2006 — the first meeting was to provide instructions relating to both his Last Will and Testament and his Power of Attorney;
• The notes of Mr. Kyba essentially mirror the contents of Ernie’s Will and, in particular, the notes contain the same clause leaving nothing to Ed that is the subject of this dispute; and
• Mr. Kyba had the opportunity to observe Ernie twice and signed the Independent Legal Advice and Witness Certificate for the Power of Attorney with respect to Ernie’s capacity to understand the nature and effect of the Power of Attorney.

Ed’s argument on the Doctrine of righteousness

Finally, Ed’s appeal also attempted to rely upon the doctrine of righteousness. This doctrine was outlined in a 1934 decision of the Supreme Court of Canada in Riach v. Ferris, [1934] S.C.R. 725 (S.C.C.) at 730-731, quoting from an even older English decision in Fulton v. Andrew (1875) L.R. 7 H.L. 448, at 471-2. In Fulton v. Andrew, the House of Lords had described the doctrine of righteousness as follows:

There is one rule which has always been laid down by the Courts having to deal with wills, and that is, that a person who is instrumental in the framing of a will, and who obtains a bounty by that will, is placed in a different position from other ordinary legatees who are not called upon to substantiate the truth and honesty of the transaction as regards their legacies. But there is a farther onus upon those who take for their own benefit, after having been instrumental in preparing or obtaining a will. They have thrown upon them the onus of shewing the righteousness of the transaction.

[emphasis added]

In other words, if you are a beneficiary of a will, and are also instrumental in preparing or obtaining a will, you will bear the burden to show evidence of the validity of that Will.

However, the Court of Appeal dismissed this argument. First, the Court of Appeal noted certain academic commentary that the doctrine of righteousness “appears to be falling from judicial vogue.” Moreover, in any event, the Chambers judge had found that Mary had not given instructions for the preparation of the Will, nor was she involved in its execution.

Thus, as Mary was not instrumental in the generation of Ernie’s Will, and there were no suspicious circumstances, the doctrine of righteousness was not even triggered in this case.

Ed’s appeal was dismissed. The Will was permitted to proceed to probate, as Ed’s challenge had been dismissed.

Lessons offered by Karpinski v. Zookewich Estate

What can we learn from Karpinski v. Zookewich Estate? One primary take-away, is a reminder of just how high a burden will rest on someone who is alleging “undue influence.” To recap, undue influence involves one person taking advantage of a position of power over another (often vulnerable or elderly) person. If a person has pressured a person in the making of their Will, so that the resulting terms are not the voluntary wishes of the testator (i.e. undue influence), the Will is invalid.

However, in the context of challenging a Will, courts will require first hand and compelling evidence of undue influence. This presents a practical problem – how often can you find direct evidence of acts of coercion? Such acts generally, if they occur, would take place in private.

This question of gathering actual evidence of undue influence, was central to Karpinski. Certain potential facts legitimately caused a family member concern. For instance, Ed was concerned by comments that Ernie allegedly made, suggesting that Mary had prepared his Will. Or, Ed was likely concerned by how much the actual Will, departed from Ernie’s apparent intention to gift part of his property to all his nieces and nephews.

However, from a legal perspective, these facts did not rise to the level of direct and clear evidence of actual instances of coercion exerted by Mary and her husband. Moreover, they were rebutted by the compelling evidence of the notes taken by Ernie’s independent solicitor, which showed that Ernie had authored his own Will, without Mary’s involvement, etc.

To summarize, parties considering challenging a Will, should therefore pause to reflect whether their “general” concerns of how a testator may have been coerced, will actually provide a court with affirmative evidence, of “specific” acts of improper pressure actually committed on specific dates, locations, etc.

….

Contacting a Lawyer on this Subject

For more information on this subject or specific legal advice, contact James Steele at 1 306 933 1338 and [email protected]

The above is for general information only. Parties should seek legal advice prior to taking action in specific situations.

Robertson Stromberg LLP offers legal advice and representation in all areas of law, including significant experience in estate litigation.

Copyright 2018 by the author. All rights reserved. Reproduction of any material herein without permission of the author is prohibited.

Legal “Standing” to Challenge a Will

by Robertson Stromberg | Dec 4, 2018 | Articles & Research, Estate Litigation, James D Steele

This articles offers an overview of the 2018 Court of Appeal decision in Olson v. Skarsgard Estate, 2018 SKCA 64.

Olson offers an important reminder to parties involved in estate litigation. Namely, one should always check to make sure you have the legal “standing” to formally challenge a Will.

Background:

Olson involved the estate of a deceased, who had been a successful farmer. The deceased had been diagnosed with terminal esophageal cancer in October 2015. The deceased married his long time partner a few months later in March 2016. The deceased had already had a child with his partner previously, and they had been co-habiting together as a couple for a lengthy period of time.

The deceased then made his last will and testament appointing his wife as the executor and as the sole beneficiary of the estate. The deceased died mere months after his marriage, in May 2016. His wife applied for letters probate of the will, which would leave her the estate.

The deceased’s sister opposed the probate application and disputed the nature of the relationship between the deceased and his wife. The sister also claimed that her brother was not the father of the wife’s daughter. The sister applied for an order for proof in solemn form, which would require that the wife formally prove the validity of the 2016 will in a trial. This type of application requires a challenger – the sister – to present evidence showing a “genuine issue” with the will’s validity.

In response to these allegations, the wife responded by presenting clear evidence of her long relationship with the deceased, which went back some 16 years. As well, the lawyer who prepared the will swore an affidavit as to his involvement in that process, and his observations of the deceased at that time. The lawyer stated that he had had no concerns about the deceased’s capacity to instruct him or to execute the will.

Other evidence also indicated the deceased had publicly acknowledged his common law relationship with his wife, and had acknowledged the daughter as his own daughter as early as 2005. The evidence adduced by the wife also included an earlier holographic will executed on November 21, 2015, under which the deceased would also have left his entire estate to his wife and her three children.

Decision of Court of Queen’s Bench.

In the Court of Queen’s Bench, the Chambers’ judge rejected the sister’s challenge to the will. Put simply, no “genuine issue” regarding the will had been demonstrated. The Court found that the deceased and his wife had cohabited for two years or more before marriage. There was compelling evidence showing the validity of this marriage, and showing the spousal relationship, and the paternity of the child.

Given this evidence, the Chambers judge found there was “absolutely no evidence” showing that the deceased’s marriage was invalid.  As such, there was no triable issue with respect to testamentary capacity, or any other ground that might impugn the validity of the will.

Secondly, however, the Chambers’ judge made another important procedural ruling. Namely, the Chambers’ judge found that the sister did not have the “standing” to challenge the will.  Namely, even if the challenged will was found to be not valid, the deceased still had a valid wife, and a daughter who would have inherited his estate. Thus, the sister was not in a position to be affected by the question of whether the 2016 will was found valid, or not. She consequently had no standing to bring the challenge.

Having made these determinations, the Chambers’ judge then turned of the issue of what costs the court should award. As the wife had been successful, the Chambers’ judge ordered the sister to pay the solicitor-client costs of the wife. Orders for “solicitor-client costs” require a losing litigant to pay the full amount that a winning party has paid to their lawyer. Orders for “solicitor-client costs” are relatively rare, as most lawsuits in Saskatchewan see a winner receive only a partial percentage of their fees from the losing party.

In justifying this exceptional award, the Chambers’ judge relied on the fact that the sister “had neither standing nor valid justification for causing delay and expense to her brother’s widow and her children”.

Decision of the Court of Appeal

1. Who has “standing” to challenge Wills?

The sister appealed. That brings us to the Court of Appeal decision in Olson v. Skarsgard Estate.

The Court of Appeal agreed with the Chambers’ judge, and found that that the sister lacked standing to seek proof of will in solemn form.

The Court began by quoting Rule 16-46 of the Saskatchewan Queen’s Bench Rules, which describes who may apply for proof of a will in solemn form:

16-46 A person who is or may be interested in the estate of a deceased person may give notice for the will to be proven in solemn form.

[emphasis added].

The Court of Appeal surveyed numerous Canadian decisions. From this authority, the Court of Appeal held that standing was granted to any challenger who could show they were:

A beneficiary under the disputed will in question;
An executor or beneficiary under any potentially valid testamentary instrument (which instrument might be upheld, if the challenged will were to fail);
and
Any person who would be entitled under a resulting intestacy, if the challenged will were held invalid.

The Court of Appeal made clear that the onus to show standing lies on a challenger:

21      In each case, the court must determine whether a person “is or may be interested in the estate of a deceased person” on the basis of the evidence adduced. This means a person who seeks to have a will proven in solemn form bears the evidentiary and persuasive burden of establishing that he or she has standing to do so. That is, the person must present enough evidence to satisfy the court that he or she is or may be interested in the estate. For example, a person claiming to have an interest in an estate if it were administered in intestacy would have to adduce evidence sufficient to establish a relationship to the testator that satisfies the foremost applicable rule under the hierarchy of rules of succession set out in The Intestate Succession Act, 1996, SS 1996, c I-13.2. Regardless of the context, a person seeking to have a will proven in solemn form must do more than merely assert that they have or may have an interest in the estate. They must adduce evidence sufficient to support that inference.

[emphasis added]

Here, the Court of Appeal held that the sister did not show evidence demonstrating all of the following:

That the deceased’s legal marriage to the deceased might be invalid;
That the deceased and the wife might not otherwise be spouses within the meaning of The Intestate Succession Act, 1996; and
That the deceased might not be the biological father of his daughter.

Only if all three of these findings had been shown to the Chambers judge, would it be possible to conclude that the sister might be the deceased’s sole surviving next-of-kin, and thus possessed of “standing”. Moreover, even then, the sister would still have had to show evidence of a genuine issue surrounding the will’s validity (which the sister did not).

In the result, therefore, the sister had no direct relationship to the deceased’s estate, as to confer standing on her.

Should solicitor-client costs be ordered, without proof of scandalous litigation conduct?

The Court of Appeal did offer a partial victory to the sister. As a reminder,  the sister had been ordered in Chambers to pay the wife’s entire costs. On appeal, however, the Court of Appeal declared that this award of solicitor-client costs had not been appropriate.

The Court of Appeal referred to the traditional principles governing orders of solicitor-client costs. These were: [1]

1. Solicitor and client costs are awarded in rare and exceptional cases only;
2. Solicitor and client costs are awarded in cases where the conduct of the party against whom they are sought is described variously as scandalous, outrageous or reprehensible;
3. Solicitor and client costs are not generally awarded as a reaction to the conduct giving rise to the litigation, but are intended to censure behavior related to the litigation alone;
4. Notwithstanding point 3, solicitor and client costs may be awarded in exceptional cases to provide the other party complete indemnification for costs reasonably incurred.

The Court of Appeal noted prior Saskatchewan authority which made clear that:

[48] Solicitor-client costs must not be awarded casually and, in my view, never without reasons as to why they are being awarded and an identification of the conduct which is said to warrant them. The Chambers judge should have offered a clear explanation as to his perceived basis for awarding solicitor-client costs. He did not do so.[2]

Here, there was nothing to suggest sister acted improperly in the litigation, or outrageously or reprehensibly. While her challenge lacked merit, that was not a reason to order solicitor-client costs. Rather, solicitor-client costs should be awarded because of procedural “behaviour related to the prosecution or defence of a claim.”

As such, the award of solicitor and client costs was set aside, and in its place was substituted an award of party and party costs (meaning, the sister only had to pay the tariff (partial) costs of the wife).

 Lessons offered by Olson v. Skarsgard Estate

Olson offers an reminder of the importance of “standing.”   Standing is the ability of a party to show a sufficient connection regarding a given legal dispute, as to justify that party’s participation in that lawsuit.

As such, “standing” is a key threshold inquiry for any party to make. Emotions can run high in estate matters, and a party might be immediately driven by a sense to proceed to court, in order to “right the wrongs” perceived in a given will, etc. However, any party should take a moment to first ask, whether they are indeed within that category of people who can legitimately make such a legal challenge. A basic first question might be put as follows – ask what will happen if you successfully overturn a given will. If you then stand to inherit, you likely have standing. If you do not, you may be best advised not to commence a formal legal challenge.

Contacting a Lawyer on this Subject

For more information on this subject or specific legal advice, contact James Steele at 1 306 933 1338.

The above is for general information only. Parties should seek specific legal advice prior to taking action in specific situations. For more information or for specific legal advice, please contact James Steele at 1 (306) 933- 1338 and [email protected].

Robertson Stromberg LLP offers legal advice and representation in all areas of law, including experience in estate litigation.

Copyright 2018 by the author. All rights reserved. Reproduction of any material herein without permission of the author is prohibited.

_____________________________

[1] See Siemens v. Bawolin, 2002 SKCA 84 at para 118

[2] Hope v. Pylypow, 2015 SKCA 26, 457 Sask. R. 55.

Case comment on Figley v. Figley

by Robertson Stromberg | Nov 11, 2018 | Articles & Research, Estate Litigation, James D Steele

This article provides a Saskatchewan estate litigation update, offering a brief synopsis of the 2018 Saskatchewan decision in Figley v. Figley, 2018 SKQB 102, 21 C.P.C. (8th) 149.

Figley v. Figley reminds estate litigators of the important “wills exception” to solicitor-client privilege, which can ensure key solicitor records are producible, as long as they relate to the intention of a testator.

This case arose out of the estate of Ray Kenneth Figley, who died on October 4, 2007. Eugene Figley, as plaintiff, was attempting to probate what purported to be the Last Will and Testament of Ray Figley (the “Will”). Ronald Figley and Stanley Figley opposed probate, disputing the testamentary nature of the alleged Will.

Ronald Figley requested a court order, allowing Ronald to question a local lawyer (not a party to this action) who had been a witness to the Will now being probated. Ronald Figley requested a court order, first, to examine the lawyer, and second, to obtain certain documents from the lawyer, relating to the preparation and execution of the Will.

The Court’s decision

On the first request to orally question the third-party lawyer, the Court looked to Rule 5-20 of the Saskatchewan Queen’s Bench Rules. This rule outlines when a court will order the questioning of a third-party. The critical wording in the Rule, is underlined below, for emphasis:

5-20(1) The Court may grant leave to question any person who may have information relevant to any matter in issue in the action, other than an expert engaged by or on behalf of a party in preparation for contemplated or pending litigation.

…

(3) An order pursuant to subrule (1) must not be made unless the Court is satisfied that:

(a) the applicant has been unable to obtain the information from other persons whom the applicant is entitled to question or from the person the applicant seeks to question;

(b) it would be unfair to require the applicant to proceed to trial without having the opportunity of questioning the person; and

(c) the questioning will not:

(i) unduly delay the commencement of the trial of the action;

(ii) entail unreasonable expense for other parties; or

(iii) result in unfairness to the person the applicant seeks to question.

            [emphasis added]

Rule 5-20(3) says that before a person can question a third-party, the person seeking to question, must first have been “unable to obtain the information from other persons whom the applicant is entitled to question.”

Here, the Court found that the applicant, Ronald, had apparently not made such efforts. Ronald had previously had the chance to question Eugene Figley, in Eugene’s capacity as the purported executor of the estate. Eugene Figley would have been obliged in such questioning, to inform himself of the discussions that the deceased had with his lawyer surrounding the Will, including documents prepared by the lawyer.

However, in that previous questioning opportunity, Ronald Figley did not ask any questions of Eugene Figley to attempt to obtain this information. Thus, Ronald had not satisfied this precondition. Ronald’s application to question the third party lawyer, failed on this basis.

This then left the second part of Ronald’s application. It was a request for an order requiring the local lawyer, as a non-party, to produce certain documents relating to the Will’s execution.

The Court consequently turned to consider Rule 5-15:

5-15(1) On application, and after notice of the application is personally served on the person affected by it, the Court may order the production of a document from a person who is not a party at a date, time and specified place if:

(a) the document is in the possession, custody or control of that person;

(b) there is reason to believe that the document is relevant to any matter in issue; and

(c) the person who has possession, custody or control of the document might be required to produce it at trial.

            …

The third-party lawyer had resisted the application, noting the sanctity of the solicitor-client relationship, and the privilege that attaches to documents surrounding the making of the Will.

However, the Court rejected any defence of privilege. The Court noted the decision in Geffen v. Goodman Estate, [1991] 2 S.C.R. 353 (SCC), and other Canadian case law. In such previous decisions, Canadian courts had established a so-called “wills exception” to privilege. The principled basis for such an exception, was that if privilege were automatically upheld, such would prevent a court from seeing documents which could shed light on the true intention of a testator’s intention over their estate. As such, the lawyer’s documents were ordered disclosed.

Lessons from Figley:

Figley emphasizes a useful tool available to parties involved in disputes over a Will’s validity. Namely, a key source of evidence of a deceased testator’s intentions, or voluntariness, can sometimes be found in the lawyer’s documents which were created when a Will was made.

Such documents would ordinarily be privileged, but are subject to a “wills exception.” This means that if the documents are capable of showing a deceased’s intentions for their estate, they may be produced to shed light for a court. As such, parties should consider if such documents exist in their Will dispute, and may wish to take steps to determine their contents. As shown in Figley, it may be that a formal court application is required, however.

Contacting a Lawyer on this Subject

For more information on this subject or specific legal advice, contact James Steele at 1 306 933 1338.

The above is for general information only. Parties should seek legal advice prior to taking action in specific situations. For more information or for specific legal advice, please contact James Steele at 1 (306) 933-1338 and [email protected].

Robertson Stromberg LLP offers legal advice and representation in all areas of law, including experience in estate litigation.