D.P. Ball QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2007 SKQB 418 Date: 2007 11 08 Docket: Q.B.S. 110/07 Judicial Centre: Moose Jaw IN THE MATTER OF THE ESTATE OF ROLAND LINKERT, LATE OF CENTRAL BUTTE, IN THE PROVINCE OF SASKATCHEWAN, DECEASED BETWEEN: MARLENE YVONNE TYLER and BARRY DOUGLAS SHADE, IN HIS CAPACITY AS EXECUTOR OF THE ESTATE OF ROLAND LINKERT; THE CANADIAN NATIONAL INSTITUTE FOR THE BLIND (CNIB), SASKATCHEWAN DIVISION; CENTRAL BUTTE REGENCY MANOR; IVER MAIN PLACE; SASKATCHEWAN PARKINSON’S DISEASE FOUNDATION; ALZHEIMER SOCIETY OF SASKATCHEWAN INC., SASKATCHEWAN BRANCH; HEART STROKE FOUNDATION OF CANADA, REGINA BRANCH OFFICE; CANADIAN RED CROSS RESPONDENTS Counsel: Paul H. Harasen for the applicant Kenneth M. Cornea for the respondent, Barry Douglas Shade Terence G. Graf, Q.C. for The Canadian National Institute for the Blind (CNIB), Saskatchewan Division Central Butte Regency Manor Saskatchewan Parkinson’s Disease Foundation Heart Stroke Foundation of Canada, Regina Branch Office Canadian Red Cross FIAT DAWSON J. November 8, 2007 [1] The applicant Marlene Yvonne Tyler, (“Yvonne Tyler”) the sister of the deceased testator Roland Linkert, asks that hearing be ordered to prove the deceased testator’s last will and testament, of November 3, 2005, in solemn form, for the purpose of determining whether the will was brought about by the exertion of undue influence on Roland Linkert by Barry Douglas Shade. [2] Yvonne Tyler also asks for an order prohibiting the administration or disbursement of the estate of Roland Linkert without leave of the court, until the issues referred to above are resolved by order of the court or agreement of the parties. [3] Yvonne Tyler also asks for an order permitting the viva voce evidence of one Violet Beaudry to be used as part of the evidence in this application. [4] In support of the application Yvonne Tyler her own affidavit and the affidavit of Brenda Walper-Bossence, the lawyer who prepared the testator’s will. [5] In response to this application, Barry Douglas Shade, the executor of the November 3, 2005 will filed his affidavit. BACKGROUND FACTS [6] The deceased testator, Roland Linkert died February 28, 2007 at the age of 86. He was bachelor. He had no children. [7] On October 26, 2000 the testator made will appointing his brother Bill Linkert as his executor and sole beneficiary. The will went on to indicate that in the event that Bill Linkert failed to outlive the testator, Yvonne Tyler, the testator’s sister, was to be the executrix of his estate and sole beneficiary. Brenda Walper-Bossence was the lawyer who prepared the October 26, 2006 will. [8] On August 9, 2005 the testator executed Power of Attorney appointing Yvonne Tyler as his Power of Attorney. Ms. Walper-Bossence prepared the Power of Attorney. [9] In October 2005 Barry Shade had made an appointment for the testator at Ms. Walper-Bossence’s office. On October 19, 2005 Barry Shade and the testator came to Ms. Walper-Bossence’s office for the scheduled appointment. Both Barry Shade and the testator met with Ms. Walper-Bossence and provided instructions for the testator’s new will. [10] On November 3, 2005 the testator executed the second will. This second will appointed Barry Shade as executor and divided his rather substantial estate between seven charities: The Canadian National Institute for the Blind; Central Butte Regency Manor; Iver Main Place; Parkinson Disease Foundation of Saskatchewan; Alzheimer Society of Saskatchewan Inc.; Heart and Stroke Foundation of Saskatchewan and the Canadian Red Cross. [11] The testator passed away on February 28, 2007. [12] At issue is the November 5, 2005 will. Yvonne Tyler suggests that Barry Shade had undue influence over the testator at the time of the making of the will. Yvonne Tyler asked that the matter be set down for trial. The issue surrounding the November 5, 2005 will is whether there was any undue influence on the part of Barry Shade with regard to that will. [13] Yvonne Tyler deposed that she had assisted the testator in his later years of life. She deposed that she was the testator’s Power of Attorney since August 2005. Yvonne Tyler deposed that when she discovered that the testator had changed his will she spoke to him about it. Her evidence, relevant to this application is as follows: 18. When next spoke with Roland briefly on the phone asked him why he changed his Will. His answer was “Because they wanted me to”. He said that the “they” that he was referring to were Barry Shade, Carol Fletcher and Carol Shade. 20. Roland never spoke to me about donating or leaving money to the charities listed in his November 3, 2005 Will. Barry Shade never told me that Roland had changed his Will and that was no longer Roland’s executor. 22. always knew Roland to be very shy, timid and anxious person. There was time when Roland was in Iver Main that he would get up at 4:00 a.m. because he was worried that he would miss 8:00 a.m. breakfast. Roland took anti-anxiety medication in the last few years of his life. 24. Roland informed me of and involved me in most aspects of his life from 1997 onward. was generally up to date on his day to day activities. After being granted his Power of Attorney in August, 2005, was up to date on his financial affairs. Based on the nature of my relationship with Roland and the involvement he chose to have me play in his life, from 1997 onward, believe it was out of character for him to make his November 3, 2005 Will. [14] Brenda Walper-Bossence, the lawyer who prepared both wills filed an affidavit. Brenda Walper-Bossence deposed that she had known the testator since about 2000. She also indicated that she knew Yvonne Tyler. Her first encounter with the testator and Yvonne Tyler was when they attended to her office as result of their sister’s death. Ms. Walper-Bossence deposed that between 2002 to 2003 the testator came to her office on his own and with his now deceased brother, Bill Linkert. Sometime around 2002-2003 the testator began to attend at Ms. Walper-Bossence’s office with his sister Yvonne Tyler, because of his failing health. It was Ms. Walper-Bossence’s observation that the relationship between Yvonne Tyler and the testator was very good. [15] Ms. Walper-Bossence deposed she prepared the August 9, 2005 Power of Attorney wherein the testator Roland Linkert appointed Yvonne Tyler as his personal and property Power of Attorney. She deposed that the testator assured her that he fully trusted Yvonne Tyler and wanted her appointed. [16] Ms. Walper-Bossence deposed that prior to October 2005, when she met with Barry Shade and the testator, she had never heard of Barry Shade. Ms. Walper-Bossence deposed that while in her office Barry Shade made number of negative comments about Yvonne Tyler, all in the testator’s presence. She deposed that Barry Shade said that the testator was “too much under Yvonne’s thumb” and that Yvonne was “overrunning” the testator. Ms. Walper-Bossence deposed that the testator then repeated what Barry Shade had said about Yvonne Tyler. [17] Ms. Walper-Bossence deposed that she was concerned that Barry Shade had influenced the testator to provide these new will instructions. On October 19, 2005 Ms. Walper-Bossence had the testator sign an authorization to allow Ms. Walper-Bossence to discuss with the testator’s doctors, the testator’s ability to sign documents, specifically will. Ms. Walper-Bossence deposed that her concern about the testator’s new instructions for the new will and the possible influence of Barry Shade led her to write letter to the testator’s doctors. On November 3rd she faxed letter to Central Butte Medical Clinic. The letter stated: act as solicitor for Roland Linkert. Attached is his release to allow you to advise me whether he is capable, mentally, of signing new will. Please advise by return. [18] Ms. Walper-Bossence indicated that her next appointment with the testator was on November 3, 2005, some 15 days after she had received the instructions for the new will. Ms. Walper-Bossence indicated that the testator was brought to her office by Barry Shade on that date. At this appointment Mr. Shade remained in the waiting room while the testator came into her office. The testator reviewed and signed the will in Ms. Walper-Bossence’s presence. [19] Ms. Walper-Bossence indicated that she never received response from the testator’s doctor to the request for medical information. [20] Ms. Walper-Bossence deposed that she remained concerned about the testator being influenced by Barry Shade. Her notes from her November 3, 2005 meeting with the testator include the following: Yvonne doesn’t know the value of stuff. Barry not pushing me my own choice. Barry would not take advantage of me, know that. few things in the past that have bothered me about Yvonne. She’s been good to me been nasty to me sometimes. [21] Ms. Walper-Bossence also wrote at the bottom of her notes the following: “but is it free will”? Ms. Walper-Bossence indicated that this notation reflected her concern as to whether the testator was being influenced. [22] Ms. Walper-Bossence indicated that while it is her normal practice to destroy any previous will when client signs new will, she was concerned about the issue of influence on the testator and as such she retained the testator’s October 26, 2000 will. [23] Barry Shade, in response to this application, deposed that in 2004 the testator first raised with him that he was considering changing his will. Mr. Shade deposed that the testator raised this again in the winter of 2004 and 2005. He deposed in May 2005 the testator spoke about charities and their need for money. Mr. Shade deposed that during telephone conversation with the testator on October 10, 2005, he asked the testator if he was still considering changing his will. Barry Shade deposed that the testator said that Mr. Shade could give some help with the will. Mr. Shade deposed he asked the testator if he needed help to get to Moose Jaw to see his lawyer and the testator said yes. Mr. Shade deposed that he then made the appointment at Ms. Walper-Bossence’s office for October 19, 2005. [24] Mr. Shade deposed the following about the meeting between the testator, himself and Ms. Walper-Bossence: 46 The matter of the Power of Attorney was obviously one that weighed heavily on Uncle Roland’s mind because when he met with Ms. Walper-Bossence, Q.C., on October 19, 2005, at the conclusion of the interview where he gave instructions for his new Will Ms. Walper-Bossence, Q.C., asked him if there “anything else Roland” and he replied “well about the Power of Attorney”. He also expressed concern that he was troubled that “Yvonne controls my money” which were his words. Ms. Walper-Bossence, Q.C., response was that Yvonne was doing “wonderful job” and she went on to remind Roland that Yvonne had helped him out in connection with debt that he was owed by Daryl Rushinko and that in her opinion things were going well. 53. drove my Uncle Roland to Moose Jaw so that he could meet with Ms. Walper-Bossence, Q.C., on October 19, in order to give her instructions for new Will and at Uncle Roland’s request sat in on his meeting while these instructions were provided. was flabbergasted when read paragraph 10 and 11 of Brenda Walper-Bossence’s Affidavit sworn the 8th day of September, 2007, and filed in this matter. Her recollection is seriously mistaken particularly when she states that Uncle Roland and said number of negative things about Yvonne in her presence. In particular the phrases she refers being “too much under Yvonne’s thumb” and that Yvonne was “overrunning Roland” are simply not the type of language ever use. 54. When we attended at her office after comfortably being seated introductions were made and at that time told her “I do not want to be perceived as influencing Uncle Roland, please caution me if you think that am”. During the whole meeting Ms. Walper-Bossence, Q.C., never once said anything to me in the nature of such caution. 55. As well, contrary to her current recollection that she was presented with names of charities that were to be beneficiaries that was not in fact the way that the meeting progressed. Uncle Roland appeared to be quite comfortable talking to her even though as has been observed he was very reserved man. He discussed with her some of the charities that he wanted to benefit. He also told her that he wanted to leave some of his money to relief organization and it was Ms. Walper-Bossence, Q.C., who suggested some possibilities in that regard and specifically recall that she was the one that mentioned the Red Cross and they spent some time discussing the work that they did and its history as good organization. In the whole course of providing these instructions the only time recall Uncle Roland looking to me to provide some input was when he was struggling to come up with the correct name for the “one about the eyes” and when he spoke about relief organization which eventually became the bequest to the Canadian Red Cross. 56. After the discussions about what charities Uncle Roland wanted to benefit was concluded Ms. Walper-Bossence, Q.C., had asked him if he appreciated that these were large and important changes that he was making and he said “yes”. The only other discussion about additional beneficiaries that occurred is when Ms. Walper-Bossence, Q.C., asked Roland “How about Bill? Do you want to leave any money to him?” and Roland’s reply was “Well, money is not going to help him”. Ms. Waler-Bossence’s response was “I see”. At this point there was no other discussion about beneficiaries and she did not ask Uncle Roland about his Sisters either collectively or individually. Nor did she ask about giving money to any other family members or individuals. 57. This point in time was when the first discussion entailing Yvonne occurred when Uncle Roland raised the question about the Power of Attorney. Even in this discussion neither myself nor Uncle Roland made any derogatory comments about Yvonne. The meeting concluded with Ms. Walper-Bossence, Q.C., asking Uncle Roland if it would be ok if she spoke to his doctor and Uncle Roland said that would be ok and believe that she may have even prepared handwritten authorization for him to sign before he left. [25] The conflict in the evidence between Ms. Walper-Bossence and Mr. Shade is apparent. ANALYSIS [26] Yvonne Tyler asks that the will be proven in solemn form, to determine whether there was undue influence on the testator, based on the application of the test as outlined in Dieno Estate v. Dieno Estate, 1996 CanLII 6762 (SK QB), [1996] 10 W.W.R. 375 (Sask. Q.B.); (1996), 147 Sask. R. 14 and more recently enumerated by our Court of Appeal in Royal Trust Corp. of Canada v. Ritchie 2007 SKCA 64 (CanLII); (2007), 293 Sask. R. 238. [27] In Re: Cosgrove Estate (1988), 1988 CanLII 4894 (SK SU), 73 Sask. R. 42 (Sask. Q.B.), this court recognized the difficulty of proving the coercion which is part of undue influence, and also recognized the legitimacy of drawing inferences of undue influence from suspicious circumstances. The court said at paras. .. It is unlikely that any deliberate and overt act of coercion will ever occur in the presence of eye witnesses. How then is undue influence to be proved? [39] There is general principle of probate law emanating from the case of Barry v. Butlin (1838), 12 E.R. 1089, which says this. If will is prepared in circumstances raising justifiable suspicion that it does not reflect the mind and wish of the testator, then it is for those who propound the will to overcome the suspicion. This is not to say the propounder need prove negative that the testator was not induced by undue influence to sign the will but the propounder must satisfy the conscience of the court that the testator knew and approved of the will’s contents when it was signed. In other words, the burden of proof is not shifted by suspicion, but the court must scrutinize the evidence closely in light of the suspicion to determine whether an inference of undue influence ought to be drawn. That is, as understand the law, to be from the following judgments of the Supreme Court of Canada: Hayward v. Thompson, (1961) 1960 CanLII 430 (SCC), 25 D.L.R. (2d) 545; Re Martin; MacGregor v. Ryan, 1965 CanLII 17 (SCC), [1965] S.C.R. 757; and Goldsworthy v. Thompson (1974), 1974 CanLII 1360 (SCC), 46 D.L.R. (3d) 237. [Emphasis in original] [28] In St. Cyr Estate v. St. Cyr, [1999 S.J. No. 54) (Sask. Q.B.) McLellan J. referred to the definition of undue influence as set out by the Saskatchewan Court of Appeal in Re Sample Estate (1955), 1955 CanLII 233 (SK CA), 15 W.W.R. 193 (Sask. C.A.) and then went on at para. 25: The affidavits filed by the respondents offer little evidence to support the allegation of undue influence. do not find that surprising. It is highly unlikely that overt acts of coercion will occur in front of eye witnesses. It would place difficult burden on the respondents to require them to provide such proof on chambers’ application. In St. Cyr, supra McLellan J. found, on the evidence before him, that it was necessary for trial to proceed on the issue of undue influence. [29] In this case, based on the evidence, the conflict in the evidence, and the law, I am of the view that the issue of undue influence cannot be resolved without a trial of the issue. It is necessary so that the matter can properly be assessed by the court. [30] There shall be an order directing a trial to prove the last will and testament of November 3, 2005 in solemn form. The question to be tried is whether the testator at the time of execution of the will was subjected to undue influence. [31] In the circumstances, it is not necessary to have the viva voce evidence of Violet Beaudry on this application. [32] The respondent Barry Shade shall be the plaintiff and shall bear the burden of establishing the deceased’s knowledge and approval of the contents of the will. The applicant shall be the defendant, but shall bear the burden of proof with respect to the alleged undue influence. [33] All the Queen’s Bench Rules shall apply to the trial of the foregoing issues including the Rules pertaining to disclosure, production of documents, examinations for discovery and pretrial conference. [34] There will be further order prohibiting the administration or disbursement of the estate of Roland Linkert without the consent of the applicant or without leave of the court, except that the executor may pay any funeral expenses, testamentary expenses, or any income tax owing, and any debts owing by the estate at the date of death. The intent with respect to this portion of the order is that any necessary debts of the estate would be paid. [35] ask counsel to determine whether they can agree on the wording of the order to reflect this fiat. [36] Costs will be costs in the cause. J. C.L. Dawson
The applicant asks that the Will be proven in solemn form to determine whether there was undue influence on the testator. HELD: The evidence from the lawyer who prepared the Testator's last Will was that she was concerned that the testator was being influenced. The evidence from the executor of the Estate raises no such concerns. Based on the evidence, the conflict in the evidence and the law, the issue of undue influence cannot be resolved without a trial of the issue. A trial is ordered.