The recent Saskatchewan King’s Bench decision in Kuffner v. Jacques offers guidance on when the merits of a will challenge can be decided in a summary fashion, as opposed to a full trial.

Factual background:

The factual background in Kuffner was as follows:

1. The Will Challenge:

The deceased at issue was Phillip Eugene Jacques (“Deceased”). Mr. Jacques died on September 19, 2018, at the age of 88. Prior to his death, the Deceased executed wills dated May 28, 2012; October 10, 2013; October 21, 2013; and July 9, 2014.

The will dated July 9, 2014, was admitted to probate on December 6, 2019. The challenger, Jason Kuffner (“Challenger”) was one of eight step-grandchildren of the Deceased. The May 28, 2012 will provided for the Challenger to receive a larger share of the estate than the Challenger would receive under the later wills. The primary difference was that the 2012 will provided the Challenger with a specific bequest of land and farm equipment, while the subsequent wills provided him with a one-eighth share of a portion of the Deceased’s

The Challenger had applied for solemn form, and to revoke probate of the 2014 Will. Mr. Justice Megaw, in a judgment of May 6, 2019 (the “Megaw Judgment”), had concluded there was a genuine issue for trial as to whether the Deceased had testamentary capacity when he executed the will of July 9, 2014.

2. Application for Summary judgment:

Before moving on with a description of the decision in Kuffner, some context is helpful. For will challenges in Saskatchewan, they typically follow a two stage process:

1. Stage 1: First, there is a threshold Chambers hearing to determine if there is sufficient merit in the testamentary challenge to warrant a trial. This Chambers hearing will be simply conducted on affidavit and documentary evidence. In this case, the Stage 1 hearing was held before Justice Megaw, and resulted in a May 6, 2019 judgment that there was a genuine issue of capacity for trial; and
2. Stage 2: Second, if the challenger is indeed found to have raised a genuine question affecting the will, a full trial involving vive voce testimony will then typically be held to determine the actual validity of the will. The trial is often preceded by the steps of document disclosure, sworn questioning, and a pre-trial conference.

Here, in Kuffner v. Jacques, the Challenger did not wish to incur the full expense and delay of a trial to deal with the Stage 2 of the will challenge. The Challenger instead applied for what is called summary judgment, seeking (among other things) a declaration that the Deceased lacked testamentary capacity when he executed the wills dated October 10, 2013, October 21, 2013, and July 9, 2014. If the Court had in fact granted such summary judgment, that would produce the desired outcome for the Challenger – i.e. that the May 28, 2012 will would be the document admitted to probate.

Issue posed in Kuffner:

Much of Kuffner distilled to the below issue: whether summary judgment could appropriately decide whether the deceased, Phillip Eugene Jacques, lacked testamentary capacity when he executed wills dated October 10, 2013, October 21, 2013, and July 9, 2014.

Court ruling in Kuffner:

The Court, in a decision written by Mr. Justice Tochor, began by outlining the test which governs whether summary judgment should be employed:

18  A primary task in determining summary judgment applications is assessing whether there is a conflict in the evidence and, if so, whether that conflict can be resolved in some way short of conducting a trial.

1. The Court can use the summary judgment process to make the necessary findings of fact;
2. The Court can use the summary judgment process to apply the law to the facts; and
3. Summary judgment would be more expeditious and less expensive means to achieve a just result than going to trial.

First, the Court noted that Mr. Justice Megaw, in his prior judgment of May 6, 2019, had made an explicit finding that there was “genuine issue for trial as to whether Mr. Jacques had testamentary capacity when he executed the will of July 9, 2014.” Mr. Justice Tochor held that this prior order provided a reason why a trial should indeed occur.

The Challenger made the argument that Mr. Justice Megaw’s finding there is a “genuine issue for trial” could not be read to mean that Mr. Justice Megaw had found there was a “genuine issue requiringa trial”. However, Mr. Justice Tochor had a different perspective, and concluded:

31      I cannot accept the distinction Mr. Kuffner seeks to advance in this submission. I cannot conceive there is any material difference between “a genuine issue fortrial” and “a genuine issue requiringa trial”. The plain words used by Mr. Justice Megaw convey an unmistakable intention to order a trial to resolve whether Mr. Jacques had testamentary capacity. There cannot be any misunderstanding of Mr. Justice Megaw’s conclusion that a trial of this issue is required in these circumstances.

As an aside, this author has sympathy with the submission of the Challenger. The Challenger argued that an order that capacity raised a “genuine issue for trial” should not be automatically treated as an order that a full trial was definitively required to determine such genuine issue in Stage 2. Given the customary language found in the case law (case law which is often from a prior period of time, in which summary determinations were not accepted as widely as they are now), many courts will simply use the phrase “genuine issue required for trial” in their Stage 1 orders, without turning their minds to the possibility that a separate, future judge may be asked to invoke its summary judgment powers in Stage 2.

But leaving this aside, Mr. Justice Tochor went on to find that, even if he was in error in relying upon Justice Megaw’s ruling of May 6, 2019, to dismiss the Challenger’s application, Mr. Justice Tochor also consciously declined summary judgment for another reason. Put simply, he himself felt uncomfortable in making findings of credibility in the face of conflicting evidence, as it related to the Deceased’s capacity. For example, one conflict arose between:

1. The evidence of the Challenger, who attested that he saw the Deceased to suffer dementia after suffering from a stroke in April 2013. The Challenger said that he saw the Deceased to be easily confused and his memory was poor, and was otherwise unable to drive alone or conduct his daily affairs;
2. By contrast, the evidence of the Deceased’s lawyer and accountant, throughout the material times, found the Deceased to be clear of mind, and firm in his understanding of the testamentary changes he was making.

There was also conflicting medical evidence, as two medical professionals had reached different conclusions, on the degree of capacity that the Deceased would have held.

It should be noted, as an aside, that it is open to a judge to resolve conflicts in the evidence within the structure of the summary judgment process, even in the absence of viva voce  For example, parties can cross examine on affidavits. But it appears that Mr. Justice Tochor did not feel that such processes would, in this specific case, give him the comfort that he needed.

Conclusion:

Mr. Justice Tochor ultimately dismissed the Challenger’s application for summary judgment. Instead, he ordered that the Local Registrar should, in consultation with the parties, set the matter down for a pre-trial conference. A pre-trial conference is the next step before a trial, and such an order would thus keep the matter moving forward.

Costs of this application were ordered to be costs in the cause. This means that whomever won at the future trial, would receive a specific costs orders in relation to this specific application. Until the winner was known from the future trial, no costs for this application would be paid however.

The author sympathizes with the practical reasons which likely prompted the Challenger to seek summary judgment. A full trial takes much longer than summary judgment (sometimes years longer). A full trial also costs tens of thousands of dollars more in legal fees. This is because a trial requires extensive witness preparation, witness travel, lawyer travel, additional correspondence with the court and parties, and lawyer attendance for full days of trial, etc.

In this author’s experience, there have not been many reported instances of challengers attempting to use summary judgment, to avoid a full trial on Stage 2 of solemn form. The decision in Kuffner provides a sobering indication that it may be difficult for parties to obtain a summary determination in relation to Stage 2 of a will challenge. It ultimately remains a personal decision, for each judge to evaluate whether they feel that summary judgment can resolve conflicting evidence appropriately, on a unique application.

The recent Saskatchewan Queen’s Bench decision in Nagy v. Graves reminds us that a Court will often remove executors who are guilty of extreme delay in administering an Estate.

Factual background:

The factual background in Nagy was as follows:

1. Nine siblings of the Nagy family were engaged in a dispute respecting their mother’s estate;
2. Their mother, Blanche Nagy, died some ten years before, on November 13, 2012;
3. Of the nine children, Blanche named two children as her executors, Jo-Ann Graves and Dennis Nagy;
4. The executors did not apply for letters probate in Blanche’s estate until February 2021, over eight years following the death of Blanche. Letters probate were issued April 16, 2021;
5. In her Will, Blanche directed that her estate be divided equally among seven of her children: Jo-Ann Graves, Katherine Reid, Claudette Pachal, Kirk Nagy, Karen Nagy, Timothy Nagy and Mark Nagy;
6. Blanche provided no gift to two sons: Dennis Nagy and David Nagy;
7. All the children of Blanche except Timothy were still alive. Timothy died in 2017 without a will, spouse or child. This meant that under intestacy legislation, Timothy estate’s would go to his surviving siblings, who will each receive one-eighth of Timothy’s estate (including Timothy’s entitlement to a portion of Blanche’s estate).

Relief requested in Nagy:

In the application in Nagy, one of the beneficiaries, Karen, applied to have Dennis and Jo-Ann removed as executors. In their place, Karen sought that she herself be appointed as sole executrix of Blanche’s Will.

In support of her application, all of the remaining beneficiaries under Blanche’s Will (except Jo-Ann and Timothy), including Claudette, Mark, Kirk and Katherine) had signed a “Renunciation and Consent” that Karen be appointed as the executrix.

Notably, David, although he was not mentioned in Blanche’s Will, has also signed a “Renunciation and Consent,” ostensibly because, under Timothy’s intestacy, he will receive a portion of his mother’s estate;

Issue posed in Nagy:

The issue in Nagy was whether the executors, Dennis and Jo-Ann, had “failed to administer the estate in a reasonable and prudent manner” as to render their removal as in the best interests of the estate.

Court ruling in Nagy:

Power to remove executors:

We begin by surveying the power of the Court to remove an executor.

S. 14.1 of the Administration of Estates Act (“Act”) allows for the removal of executors. S. 14.1 reads as below:

14.1 Removal of executor or administrator
14.1(1) On the application of a person having an interest in the estate, the court may remove an executor or administrator if the court is satisfied that:

(a) the executor or administrator:

(i) has failed to comply with an order of the court;

(ii) refuses to administer or settle the estate;

(iii) has failed to administer the estate in a reasonable and prudent manner;

(iv) lacks capacity to act as an executor or administrator;

(v) has been convicted of an offence involving dishonesty; or

(vi) is an undischarged bankrupt; and

(b) the removal of the executor or administrator would be in the best interests of those persons interested in the estate.

The power of removal is also given to the Court under common law.

Should these executors be removed?

We turn next to the grounds on which the Court in Nagy held that these executors should be removed.

We turn next to the grounds on which the Court in Nagy held that these executors should be removed.

The Court in Nagy found that it was unreasonable for the executors to have waited 8 years to apply for probate. The Court noted that s. 14 of the Act provided in theory that executors should apply for probate within 60 days of the testator’s death:

9 …What can be gathered from these provisions is an executor who acts reasonably would ordinarily apply for letters probate within 60 days of the death of the testator. Dennis and Jo-Ann did not apply for letters probate for over eight years.

The Court held that the reasons offered by Jo-Ann for not applying for letters probate (or otherwise administering the estate), were not convincing. Some of these are set out below:

1. First, Jo-Ann stated in her affidavit that she did not take “immediate steps” to administer her mother’s estate because she “was advised by a bank employee that due to the small amount of money in my mother’s bank account, I would not need to probate the Estate at all.” However, the Court held that Jo-Ann must have known that her mother owned land (indeed two quarter sections of land) at the time she died. This alone would require probate;
2. Second, Jo-Ann stated in her affidavit that “none of my siblings were eager to finalize the estate until the matter was brought up in 2019.” The Court held that to justify one’s inattention as executrix because of an absence of a complaint from beneficiaries was not an appropriate excuse. Furthermore, by 2019 Blanche had been deceased for seven years, and from 2019 (when her siblings intervened), it took until April 2021 to overcome Jo-Ann’s inertia and finally obtain letters of probate.

Ultimately, the Court found that the delay in applying for letters probate, or to act on any other estate matters, was contrary to the statutory expectation that an executor should apply for letters probate within 60 days of a deceased’s death. 

The Court also noted the position of the other beneficiaries, influenced the Court’s decision to remove the executors:

25      If the overarching responsibility of an executor is to safeguard the deceased’s estate for the well-being of the beneficiaries, then the voices of the beneficiaries should be heard. In this instance all the beneficiaries of the estate, except Jo-Ann, are of one mind: they want Jo-Ann and Dennis removed as executors and, in their stead, they want Karen to be appointed executrix. Notably, even David, who received no gift under his mother’s Will (but who will pro-rata share his deceased brother’s (Timothy) share of his mother’s estate) has also consented to Karen’s appointment.

The final issue considered by the Court was whether to change executors in mid-stream, given that the estate was nearing completion.  Before the date of the application, the executors had already sold the two quarter sections of farmland for good prices and distributed $308,000.00 of the estate funds to the beneficiaries.

While nearness to completion would sometimes be a purely practical reason to grudgingly keep poorly performing executors in office, the Court, in this instance, held that the executors should still be removed. The Court reasoned that the executors’ prior lack of diligence boded poorly for the remaining steps required in this estate (such as a final accounting, filing of taxes etc.).

The Court wrote as follows:

35      In this instance, the court finds that Dennis and Jo-Ann have shown a past and unexplained lack of diligence in administering their mother’s estate — the absence of probate for eight and one-half years, the lack of estate record keeping, an accounting that offers little more than rounded approximations of expenses without receipts or invoices, the failure to file estate income tax returns, an apparent and unaccounted benefit to Dennis who lived in the estate property for several years — these all show a dereliction of duty one expects of an executor.

36      I accept that the emphasis in this application should be on the future administration of Blanche’s estate and the risks to which it will be exposed if Dennis and Jo-Ann continue to administer the estate. Removal is not to punish them for past misconduct but rather to protect the assets of the estate and the interests of the beneficiaries. However, past misconduct that is likely to continue will often be sufficient to justify removal: Radford v Wilkins, 2008 CanLII 45548 (Ont Sup Ct).

..

38      Finally, the court is concerned with the future administration of the estate, particularly providing the beneficiaries with a full estate accounting, the filing of estate income tax returns and the potential liability for income tax liability. The consequences of unpaid taxes — liability, interest and penalties — may potentially encroach on what would otherwise have been available to the beneficiaries. To date Dennis and Jo-Ann have not provided any assurance to the beneficiaries that estate income tax returns will be filed. Upon whom — the beneficiaries or the executors — should potential liability for unpaid estate taxes fall?

[emphasis added]

Conclusion:

The Courts will generally not lightly interfere with the express wishes of a deceased person as to who should administer their estate. However, as Nagy shows, the Court will often remove executors in situations of extreme delay. Here, the Court removed Dennis and Jo-Ann as executors of Blanche’s estate.

Situations of 8-year delays in obtaining probate are not common. Many instances of delay in obtaining probate are closer to 1-3 years. It remains an individualistic (and thus less predictable) decision as to whether a judge will remove an appointed executor in situations of less extreme delay. In most such cases, a beneficiary would be well advised to consult a lawyer, to start the clock ticking by placing a demand on the executor, and threatening a court remedy if probate is not obtained. Most often, such demands will prompt the executors to act before the necessity of an actual hearing before the court is required. If no action is forthcoming, however, a beneficiary would be advised to consult a lawyer as to whether they should actually apply for a formal court order against the executors.

Costs order in Nagy:

The costs order in Nagy bears passing comment. The Court also ordered that costs of $2,500.00 shall be paid to Karen, jointly and severally, out of the estate share to be received by Dennis and Jo-Ann. This author has not seen the specific cost relief which was initially sought by Karen in terms of her notice of application.

However, one wonders if it would have been more equitable to award full indemnity (dollar of dollar) costs in favour of Karen so that Karen was not out of pocket. Courts routinely award costs on a full indemnity scale to a person who has taken a necessary court step required to advance the estate. Such, one other alternate costs order in the circumstances of Nagy could have been that Karen receives her entire full indemnity legal fees:

1. With $2,500 to specifically come from the share of the estate given to Dennis and Jo-Ann; and
2. The rest of the costs ordered to come from Blanche’s estate.

The above-proposed costs order would ensure that Dennis and Jo-Ann bore some of the responsibility for their own misconduct and delay but that the overall estate made sure that Karen was not out of pocket for taking a step that did not benefit her alone but instead benefited the entire estate. Part of the practical grounds for this can be illustrated by envisioning a future estate in which the executors have behaved poorly and need removal. If someone like Karen is expected to “step up” and hire a lawyer in such separate future estates, the incentive to do so would be lessened if that person had to bear a large portion of the legal fees of the court application personally. This results in a windfall for the other estate beneficiaries, who benefit from such a court order but do not have their estate shares diluted to bear their portion of the legal cost. It also reduces the chance that any one beneficiary “steps up” at all in the first place.

The recent Saskatchewan Queen’s Bench decision in Bell v Bell, 2022 SKQB 198 is an example of a Will challenge which did not succeed in raising a genuine issue for trial.

Bell reminds us that Courts will generally require firsthand evidence of incapacity or of coercion before the Court will subject a Will to the expense and delay of trial. If Courts consider the challenger’s evidence to be more circumstantial or unrelated in time to the specific signing of the Will, the Courts may find that there is no genuine issue.

Factual background:

The factual background in Bell can be summarized as follows:

1. This will challenge was in relation to the Estate of Laurette Josephine Bell;
2. On January 8, 2020, at the age of 86, Laurette executed a will (“Will”). After her death, one of her sons, Wayne, wished to have the Will proven in solemn form. Solemn form refers to the process of proving the validity of a Will through actual firsthand evidence in a trial process;
3. In the Will, Laurette named two of her sons, Donald Bell and Grant Bell, as joint executors. The Will made two specific bequests and then proceeds to instruct that the rest of Laurette’s estate was to be divided equally among her children for their own use absolutely;
4. Immediately following that bequest, however, the Will provided that Laurette’s son, Wayne, the applicant, was “not to receive anything from my estate nor any of his issue”;
5. Laurette subsequently died on August 18, 2021, at the age of 88;
6. Wayne sought to challenge the validity of Laurette’s Will and alleged that Laurette had been subjected to undue influence and/or had lacked capacity at the time the Will was executed;
7. In Saskatchewan law, a will challenge requires a two-stage process. In the first stage, the challenger must first show that there “is a genuine issue to be tried.” That is, the applicant must generally offer evidence that, if accepted at trial, would tend to negate testamentary capacity or establish undue influence. Only if this genuine issue is raised at the first stage will a trial process (second stage) be legally required to actually determine credibility and make final rulings on whether the specific will is valid.
8. In relation to testamentary capacity, Wayne suggested that a genuine issue was raised by the cumulative effect of the below factors:

1. Laurette was elderly (87 years old at the time the Will was executed);
2. Laurette had been forgetful and confused, as allegedly evidenced by her erroneous insistence that a historical loan to Dawn (the daughter of Wayne) remained outstanding (when Wayne alleged, and it did appear on the available evidence, that said the loan had been paid already years earlier); and
3. That Laurette was forgetting names and had gotten lost in the mall on one occasion.

9. In relation to the issue of alleged undue influence exercised on Laurette, Wayne alleged that Grant, Don and Garth (other sons of Laurette) were communicating disparaging and false statements to Laurette about Wayne and Dawn. Wayne essentially suggested that such poisoning had caused Laurette’s free will to be overburdened to the point that cutting Wayne out of the Will was not Laurette’s own voluntary act.

Issue:

The issue, as in most will challenges, was whether or not the challenger had raised a genuine issue requiring a trial (in relation to either capacity or coercion).

Court ruling in Bell:

The Court ultimately held that Wayne had not raised a genuine issue.

First, on the issue of capacity, the Court held:

1. The fact that Laurette was 87 years of age was not enough to raise a genuine issue. The Court held that some 87‑year‑olds do lack testamentary capacity, others do not. Age does not negate testamentary capacity;
2. Second, the Court did not find that a genuine issue of capacity was raised merely by the fact that Laurette may have mistakenly thought that a 20 year old loan to Dawn, remained unpaid.   The Court held that the issue was not material. If the loan had been repaid in full and if Laurette was mistaken in the belief that the loan was still outstanding, did not itself lead to the conclusion that Laurette was not competent to execute the Will on January 8, 2020. The Court held:

1. 52 …Although Laurette may very well have been wrong about the repayment of the loan, this circumstance does not compel the inference that she was incompetent or lacked testamentary capacity. Many people forget details of the past and the fact that one may have been mistaken does not mean that she was incompetent or was not capable of executing a valid will. Even assuming for the moment that a trial of an issue was ordered and the applicant was able to establish this point, it does not amount to “some evidence which if accepted at trial would tend to negative testamentary capacity”. See Dieno at para 32 and Kapacila at para 22.

3. Similarly, the fact that Laurette may have forgotten some names and may have gone in the wrong direction after leaving a certain business on one or more occasions does not constitute evidence that would negate testamentary capacity.

Second, the Court held that Wayne had no firsthand evidence of undue influence in relation to this Will:

1. The Court held that the theory of Wayne was that Grant, Don and Garth somehow fed Laurette misinformation about the misappropriation of funds which caused Laurette to wrongfully view Wayne in a negative light. However, the Court held that “even if Laurette was wrong about her presumptions and perceptions, there is no evidence that there was influence that would have overburdened her will.” (para 56)
2. The Court also noted that there was a crucial difference between:

1. Merely alleging that there was undue influence or circumstantially that there must have been an undue influence because of what Laurette did; and
2. Offering actual firsthand evidence which is potentially capable of establishing undue influence in relation to a Will.

Conclusion:

Ultimately, the Court in Bell held that no genuine issue had been raised on Wayne’s evidence.

Rather, the uncontradicted evidence before the Court was that Laurette went to her lawyer and provided the lawyer with precise, cogent, clear instructions to remove Wayne as a beneficiary. The lawyer who drew the will was a very experienced lawyer in estates, took Laurette’s instructions and found no cause for suspecting undue influence or a lack of testamentary capacity.

Bell is an example of a case where the challenger no doubt had genuine concerns about what caused his mother to remove him from the Will. Such is a natural emotional reaction. That said, Bell reminds us that circumstantial concerns about unexplained actions by a testator (even if the testator’s actions are hurtful and shocking to a disinherited family member) are not the same as first-hand evidence, actually capable of establishing incapacity or actual coercion on the date of the signing of the Will.