QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2015 SKQB 138 Date: 2015 05 13 Docket: QBS 151 of 2014 Judicial Centre: Moose Jaw IN THE MATTER OF THE ESTATE OF STEVEN SZWAGIERCZAK, LATE OF MOOSE JAW, SASKATCHEWAN, RETIRED, DECEASED BETWEEN: DEBRA LOUISE SCHULTZ and KRISTINE ELIZABETH SZWAGIERCZAK And KATHERINE ANNE JENSON, Proposed Executors of the Estate of Steven Szwagierczak Counsel: Lyle O. Phillips for Debra Louise Schultz Gail Wartman, Q.C. for Katherine Anne Jensen and Kristine Elizabeth Szwagierczak FIAT ELSON J. May 13, 2015 [1] Steven Szwagierczak was widower when he died on April 10, 2014. His wife, Betty, passed away on the morning of September 23, 2013. Later that same day, Mr. Szwagierczak met with lawyer and purportedly instructed her to prepare his Last Will and Testament. According to the evidence, the instructions were principally based on revisions to previous will the same lawyer had prepared for him in 2012. The new will was prepared and Mr. Szwagierczak signed it two days later, on September 25, 2013. [2] In this application, one of Mr. Szwagierczak’s five daughters seeks an order directing a trial to prove the 2013 will in solemn form. The grounds asserted by the applicant, are that, at the time of making his will, Mr. Szwagierczak did not have testamentary capacity to understand the nature of the document he was signing or the extent of his property. [3] For the reasons that follow in this fiat, am satisfied that the applicant has not made out genuine issue for trial to prove the will in solemn form. Accordingly, the application must be dismissed. THE EVIDENCE [4] Before referring to the specific evidence contained in the several affidavits filed in respect of this application, think it helpful to begin with brief summary of Mr. Szwagierczak’s family, as well as brief description of the will for which probate has been sought. [5] Although the court was not provided with information as to the date of their marriage, it is evident that Steven and Betty Szwagierczak were married for many years. The evidence also suggests that this couple was very close. More than one deponent has described the emotional pain Mr. Szwagierczak experienced during the time his wife was dying in hospital. There is little doubt that he was grief stricken when she eventually passed. [6] When Mr. Szwagierczak died, he had five adult daughters. They are: Katherine Anne Jensen [Katherine], Kristine Elizabeth Szwagierczak [Kristine], Barbara Lynn Szwagierczak [Barbara], Debra Louise Schultz [Debra] and Linda Elaine Dejong [Linda]. [7] Katherine and Kristine are the proposed executors and propounders of the will in question. Debra is the applicant who challenges it. None of the daughters resided in Saskatchewan at the time of Mr. Szwagierczak’s death. Katherine resides in Drayton Valley, Alberta; Kristine resides in Williams Lake, British Columbia; Barbara resides in Neepawa, Manitoba; Debra and Linda reside in Edmonton, Alberta. [8] According to the evidence presented with the application for probate, Mr. Szwagierczak was 80 years of age at the time he executed the challenged will on September 25, 2013. The beneficiaries of the estate, as described in the proposed will, are his five daughters, one grandson and The Canadian Cancer Society. The Canadian Cancer Society is described as the beneficiary of special bequest for $1,000.00, and the grandson is to receive $500.00 bequest. With respect to the daughters, Linda and Debra, each are to receive specific bequests of $100.00. The remaining three daughters, Katherine, Kristine and Barbara, are to receive the rest and residue of the estate, divided in three equal shares. The estimated value of the estate, according to Part of the Statement of Property, is $343,117.28. Included in Part is at least one registered account with no named beneficiary. The only asset listed in Part II is an insurance policy, payable to named beneficiary, in the amount of approximately $3,000.00. [9] number of affidavits were filed by various parties, including individuals who did not have particular interest in the application’s outcome. Certain of the matters of evidence presented in some of the affidavits are of questionable admissibility, particularly where they describe events for which the deponent does not describe first-hand knowledge. Even so, believe can summarize the admissible and relevant evidence from them. Evidence on behalf of the applicant/challenger [10] The only affidavit presented in support of the challenge to the will was the one Debra deposed herself. Having said that, the affidavit also exhibited letter from Mr. Szwagierczak’s family physician, which will also be summarized. Affidavit of the applicant, Debra Louise Schultz [11] As earlier mentioned, Debra is one of Mr. Szwagierczak’s five daughters. Her evidence centers around the events of September 2013, as well as certain subsequent events. [12] According to Debra, she and Linda decided to come to Moose Jaw after they had learned of their mother’s failing health. They arrived in early September 2013. By that time, Mrs. Szwagierczak was in hospital. Debra deposes that she and Linda visited their mother several times day. They also drove Mr. Szwagierczak to the hospital twice day so that he could be with their mother. [13] Debra further says that during the interactions with him at his nursing home and at the hospital, Mr. Szwagierczak had been very emotional and, at times, did not appear to be aware of his surroundings. There were occasions, according to the affidavit, when Mr. Szwagierczak would stare off into space with unfocused eyes or cry uncontrollably at the mention of his wife. Debra also states that Mr. Szwagierczak repeatedly said he did not know what was going on. [14] Debra deposes that during one of the visits at the nursing home, real estate agent telephoned Mr. Szwagierczak to ask for instructions on the sale of the former family home in Moose Jaw. At that time, Mr. Szwagierczak was unable to deal with the matter, and simply handed the telephone to Linda and asked that she deal with it. As result of this conversation with the agent, Debra and Linda decided to call their parents’ solicitor, Brenda Walper-Bossence, Q.C., which Debra says they did on September 20, 2013. meeting was arranged to take place three days later, on the afternoon of September 23, 2013. [15] Debra states that the meeting on September 23, 2013 took place as scheduled. Apparently, this was despite the fact that Mrs. Szwagierczak had passed away earlier that morning. Debra’s account of the meeting is that Ms. Walper-Bossence asked Mr. Szwagierczak if he knew who she was, to which he replied that he did not. When Ms. Walper-Bossence told him that she had prepared his will one year previously, Mr. Szwagierczak is reported to have said, “I don’t remember you and am not signing anything.” Ms. Walper-Bossence left business card and told Mr. Szwagierczak to contact her if he was so inclined. According to Debra, Ms. Walper-Bossence did not speak with either her or Linda in any meaningful way during this visit. [16] The applicant also deposes that, in the month following her mother’s death, she attempted to call Mr. Szwagierczak several times but was never able to speak to him. She eventually called the staff at the nursing home to inquire about him. Debra was reportedly told that the nursing home staff had been directed not to give any information unless it is to the executor of the estate. [17] During this time, Debra says that she had made number of unanswered calls to Kristine’s home. Debra deposes that the only reply she received was request from the police in Williams Lake that she stop attempting to contact Kristine. Letter from Dr. H. Volker Rininsland [18] Debra instructed her counsel to obtain letter from Mr. Szwagierczak’s family physician, Dr. H. Volker Rininsland. The letter, dated July 22, 2014, is not supported by an affidavit from Dr. Rininsland, himself. Even so, am prepared to accept the letter as physician’s report. [19] In his letter, Dr. Rininsland candidly acknowledged that he did not see Mr. Szwagierczak very much around the time the new will was signed. His last attendance with Mr. Szwagierczak, before that date, was on September 6, 2013. At that time, he says Mr. Szwagierczak was mentally alert, could recognize him and was oriented. [20] Dr. Rininsland saw Mr. Szwagierczak again on October 6, 2013 when he was admitted to hospital with an acute heart attack. At that time, he confirmed Mr. Szwagierczak was very confused, something he attributed to the illness. Dr. Rininsland does not describe any interactions after October 2013. Evidence on behalf of the propounders [21] The propounders, Katherine and Kristine, presented five affidavits, including one sworn by each of them. Affidavit of Katherine Anne Jensen [22] As mentioned, Katherine is one of Mr. Szwagierczak’s daughters and is named co-executor in the challenged will of September 25, 2013. [23] Katherine specifically responds to evidence from Debra’s affidavit, which described Mr. Szwagierczak as very emotional at both the nursing home and the hospital, and appearing to be unaware of his surroundings. In response, Katherine acknowledges that her father was extremely emotional during Mrs. Szwagierczak’s last days, but she attributes this emotion to the extreme grief he was suffering, not to loss of mental capacity. [24] Katherine also speaks of her observations about Mr. Szwagierczak’s interactions with Debra and Linda. According to her, Mr. Szwagierczak was nervous whenever these particular daughters were near him and he would not wish to speak to her (Katherine) when Debra and Linda were present. Katherine also says that she observed her father locking Debra and Linda out of his room. Finally, Katherine also deposes that, in September 2013, she observed her father to be angry with Debra and Linda and specifically heard him express his intention to exclude Debra from his will. [25] Katherine also deposed evidence about Mr. Szwagierczak’s meetings with Ms. Walper-Bossence and representative of his bank, Mr. Godwin. From Katherine’s deposition, this evidence is of little or no value as she gave no basis for her knowledge of the meetings, whether she actually witnessed them or learned of them through information and belief. Accordingly, whatever admissible evidence the propounders rely on with respect to these meetings will have to be found in the affidavits of Ms. Walper-Bossence and Mr. Godwin. Affidavit of Kristine Elizabeth Szwagierczak [26] Kristine is another daughter and the other named co-executor in the will of September 25, 2013. [27] Kristine says that she was aware her parents had become estranged from Linda some years ago. It is her understanding that they left her only $1,000.00 in the wills they signed on May 9, 2012. This evidence was later confirmed by Ms. Walper-Bossence. [28] According to Kristine, her father told her about number of things that had gone on when Debra and Linda were around him, which caused him to be very upset and angry with them. She deposes that she was advised by her father that, in September 2013, Debra and Linda went through number of his documents and belongings, without his consent, at the nursing home where he lived. Mr. Szwagierczak also told Kristine that Debra and Linda had unplugged the telephone in his room so that he was unable to communicate with either Kristine or Katherine. Kristine also deposes that her father expressed to her that he was afraid of Debra and Linda. [29] Kristine acknowledges that her father was very sad at the time of her mother’s passing, but she does not describe this sadness as signifying lack of mental capacity. Affidavit of Richard Levasseur [30] Mr. Levasseur deposes that he had been friend of Mr. and Mrs. Szwagierczak for several years, helping them out with chores and giving them rides when needed. His friendship with Mr. Szwagierczak continued throughout the relevant time in question. [31] Mr. Levasseur deposes that he was visiting with Mr. Szwagierczak on the day he gave instructions to his solicitor for his new will. In Mr. Levasseur’s opinion, Mr. Szwagierczak was sad over the passing of his wife, but did not appear to be mentally impaired. [32] Mr. Levasseur also deposes that he was aware that Mr. Szwagierczak was angry with Debra and Linda. He acknowledges never having met these two women, but he was present when Mr. Szwagierczak expressed anger about them. He also says that he witnessed Mr. Szwagierczak tell his lawyer that he wanted to leave those two daughters out of his will. He heard him talk about leaving each of them small amount of money. There was no question in Mr. Levasseur’s mind that Mr. Szwagierczak knew what he was doing when he made these decisions about his will. Affidavit of Keith Godwin [33] Mr. Godwin is employed as Financial Services Representative at the CIBC branch in Moose Jaw. [34] Mr. Godwin deposes that he knew Mr. Szwagierczak, although he did not specifically say how long he knew him. [35] Mr. Godwin deposes that, on September 26, 2013, Mr. Szwagierczak came to the branch with one of his daughters and made arrangements to set up power of attorney for his banking. On that day, Mr. Godwin observed Mr. Szwagierczak was very emotional, breaking into tears on at least one occasion. Even so, Mr. Godwin was satisfied that he could take Mr. Szwagierczak’s instructions as to what he wanted done with his assets at the bank. [36] As to those instructions, Mr. Godwin says that Mr. Szwagierczak expressed the desire to set up his accounts in such way that, if something happened to him, his daughter, acting as power of attorney, would be able to handle his accounts. Mr. Godwin specifically recalls that, although Mr. Szwagierczak had registered assets for which he could have named specific beneficiary, he specifically chose not to do so. His expressly stated the reason for this choice was, according to Mr. Godwin, the “difficult family dynamics.” [37] Mr. Godwin’s affidavit goes on to say that he did not have concerns about Mr. Szwagierczak’s mental capacity to carry out the banking arrangements he was making on September 26, 2013. Further, Mr. Godwin deposes that he met Mr. Szwagierczak again, on March 20, 2014, to sign transfer forms for certain investments. Mr. Godwin was satisfied that, at that time, Mr. Szwagierczak was competent to make banking decisions and to instruct him regarding those transactions. Mr. Godwin specifically observed that Mr. Szwagierczak was in better frame of mind than he had been the previous September, shortly after his wife’s death. Affidavit of Brenda Walper-Bossence, Q.C. [38] Ms. Walper-Bossence is solicitor practising in Moose Jaw. She prepared and attested the proposed 2013 will. Earlier in 2012, she prepared the wills for both Mr. and Mrs. Szwagierczak, which she described as the “mirror image” of each other. [39] Regarding the circumstances of the challenged 2013 will, Ms. Walper-Bossence deposes that she first received instructions to attend with Mr. Szwagierczak on or about September 10, 2013. At that time, she received telephone call from Kristine requesting an attendance with her father. Ms. Walper-Bossence believes that she attended with Mr. Szwagierczak, at the nursing home where he lived, on or about that same date. When she attended with Mr. Szwagierczak, he told her he would not sign anything until his wife got out of the hospital. It is Ms. Walper-Bossence’s recollection that one of his daughters remarked to Mr. Szwagierczak that his wife was not going to get out of the hospital, at which point Mr. Szwagierczak became “devastated with grief.” She further recalls that he cried and appeared distant. Ms. Walper-Bossence elected not to take any instructions. Before leaving, she suggested that Mr. Szwagierczak call her if he needed her services. [40] Ms. Walper-Bossence deposes that she eventually did take Mr. Szwagierczak’s instructions for new will on September 23, 2013. No evidence is given as to how this meeting was initiated, nor does she describe who was present. She does say that the instructions were given in the form of itemized changes to the will she had prepared for him in 2012. Although that will was destroyed at the time the 2013 will was prepared, she still had her notes and copy of Mrs. Szwagierczak’s “mirror image” will. Accordingly, for the purpose of identifying the instructed revisions, copy of the last will and testament of Betty Lorraine Szwagierczak, dated May 9, 2012, was exhibited to Ms. Walper-Bossence’s affidavit. [41] The exhibited copy of Mrs. Szwagierczak’s will confirms that the intended gift to Linda was originally limited to $1,000.00. There is also specific notation to the effect that Linda was not to benefit from the residue of Mrs. Szwagierczak’s estate as “we are estranged from each other”. [42] Further to the instructions received on September 23, 2013, Ms. Walper-Bossence exhibited to her affidavit the original notes she made for preparing Mr. Szwagierczak’s new will. These notes are brief but clear. According to Ms. Walper-Bossence, they identified the changes Mr. Szwagierczak instructed her to make to his 2012 will. The notes identify specific instructions for certain people. An earlier gift to one of his grandchildren was to be deleted, apparently because of dispute the grandchild had with Mrs. Szwagierczak. Two other gifts, to another grandchild and to The Canadian Cancer Society, were to be maintained. The notes also indicate that both Debra and Linda were to receive $100.00 each, with the proviso that if either of them contested it that daughter would receive nothing. There is specific notation to the effect that Ms. Walper-Bossence was to “make sure Deb and Linda don’t get any!” Ms. Walper-Bossence says that she used the exclamation punctuation to emphasize the specific instructions she had received in this regard. [43] Ms. Walper-Bossence deposes that she had no hesitation about preparing Mr. Szwagierczak’s will, and had no concerns about his mental capacity. She acknowledges that he was sad and tearful at the time he gave his instructions, but she did not equate those emotions with lack of mental capacity. Ms. Walper-Bossence also noticed good deal of anger against Debra and Linda. [44] The parties are in general agreement as to the basic principles engaged by this motion, as well as the procedure framework to be employed in the application of these principles. They differ, however, on the question as to whether the evidence presented is sufficient to meet the tests contemplated within the procedural framework. [45] Despite the parties’ agreement on the basic principles, it is appropriate to review those principles as they are set out in the authorities, several of which were commended to my attention by counsel. In addition to these authorities, was assisted by relatively recent decision by Schwann J. in Re deBalinhard Estate, 2014 SKQB 162 (CanLII), 447 Sask 172 [deBalinhard], which contained helpful review and analysis of the applicable law and related authorities. [46] The governing principles or “ground rules”, as one counsel described them, were set out by the Supreme Court of Canada in Vout Hay, 1995 CanLII 105 (SCC), [1995] SCR 876, where Sopinka J. observed that the propounder’s task of proving the legal requirements of will was assisted by rebuttable presumption. Where the propounder has presented proof that the will was duly executed and had been read over by the testator who appeared to understand it, it will be presumed that the testator knew the contents of the will, freely approved of those contents and possessed the necessary testamentary capacity when doing so. The presumption, however, may be short-lived. Where there are suspicious circumstances that cast measure of doubt on one or more of these legal requirements, such circumstances will affect the ability of the propounder to rely on the presumption. In this respect, Sopinka J. said the following at p. 889: 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 respect, the legal burden reverts to the propounder. [47] In Saskatchewan, the procedural framework that gives meaning to these governing principles is set out in Royal Trust Corp of Canada Ritchie, 2007 SKCA 64 (CanLII), 293 Sask 238 [Ritchie], where the Saskatchewan Court of Appeal re-examined and modified the two-stage approach described by this Court in Dieno Estate Dieno Estate (1996), 1996 CanLII 6762 (SK QB), 147 Sask 14 (Sask QB). Stated simply, the two-stage process first requires an assessment as to whether there is sufficient merit to the challenger’s case that trial of proof in solemn form is warranted. If so, the procedure moves to the second stage, the trial itself. [48] In this application, the court is simply at the first stage, determining whether trial is warranted. At this step, the central questions focus on the evidentiary burden the parties must meet to resolve the application one way or the other. These questions can be simply stated: 1) what is the strength of the case the challengers must present in order to proceed to trial? 2) conversely, what type of case must the propounder of the will present in order to avoid trial and obtain grant of probate? [49] Until Ritchie, there was some confusion surrounding the answers to these questions. Despite the division of the Court of Appeal on the final disposition in Ritchie, this confusion has largely been resolved. Both the majority and dissenting judgments agreed that it is not necessary for challengers of will to present evidence that will convince the court as to the merits of their case. Rather, it is necessary only to satisfy the court that there is “a genuine issue to be tried” with respect to the grounds on which the challenge is based, such as lack of testamentary capacity or the presence of undue influence. Conversely, if the propounder presents uncontradicted evidence that fully answers the challenge, such that there can be no genuine issue to be tried on the relevant matter, the application must be dismissed. In this respect, Richards J.A. (as he then was) wrote the following at paras. 48 In order to determine if there is genuine issue to be tried, the Chambers judge hearing the application must consider all of the evidence presented and make preliminary assessment of the merits of the case. Overall, the threshold is reasonably low. The person challenging the will need not prove its case on balance of probabilities or otherwise. He or she must, however, bring forward evidence which challenges the presumption of validity and which would, if accepted at trial, tend to negative testamentary capacity or undue influence or otherwise defeat the will. The need for trial will be especially apparent when the evidence is inconsistent on material points or when credibility is in issue. 49 As Baynton J. indicated, if the applicant fails in that regard, or in the perhaps unlikely event the propounder of the will somehow fully answers the concerns raised by the applicant with uncontradicted evidence affirming testamentary capacity, the application must be dismissed. According to Dieno Estate, final disposition of the issues is also an option for the Chambers judge if the evidence itself is not in dispute and the only questions are the inferences to be drawn from the facts. [50] While find the preceding reference to be helpful one, caution must be taken here. It must be remembered that the quotation is drawn from the dissenting judgment in Ritchie. The majority, speaking through Gerwing, J.A., disagreed with the observation that the threshold for the challenge is “reasonably low”. In describing the essence of the disagreement, at para. 6, Gerwing, J.A. appeared to insert measure of proportionality into the equation: However, do not agree with the notion that "the threshold is reasonably low". The test in Quaintance is, as is the general statement of the issue to be determined in Dieno, based in the context of jurisprudence respecting the wishes of testator and the validity of will. If real question, based on probative evidence going to issues material to capacity, is raised, the will should be proved in solemn form. However it is not every suggestion of irregularity or evidence on peripheral points which will lead chamber judge to conclude that there is sufficient issue for proof in solemn form. Proof in solemn form is lengthy and expensive process and should not be entered into without sufficient foundation. Otherwise substantial portion of the estate is at risk of being frittered away in pointless litigation. [51] In the application at bar, the challenge is based exclusively on an alleged absence of testamentary capacity. The legal hallmarks of testamentary capacity were discussed in deBalinhard, where Schwann J. quoted from the decision in Kapacila Estate Re 2010 SKCA 85 (CanLII), 359 Sask 84, where Klebuc, C.J.S. (as he then was) stated the following at paras. 33 It is well established that person, having achieved the age of maturity and who is of sound mind, memory and understanding, is capable of making valid will. When the validity of will is challenged on the basis that the testator lacked testamentary capacity, the propounder of the will is called upon to prove the essential elements of testamentary capacity. Those elements were summarized by Laskin J.A. (dissenting) in Re: Schwartz (1970), 1970 CanLII 32 (ON CA), 10 D.L.R. (3d) 15 at 32 (Ont. C.A.) [aff'd 1971 CanLII 17 (SCC), [1972] S.C.R. 150]: ... The testator must be sufficiently clear in his understanding and memory to know, on his own, and in general way (1) the nature and extent of his property, (2) the persons who are the natural objects of his bounty and (3) the testamentary provisions he is making; and he must, moreover, be capable of (4) appreciating these factors in relation to each other, and (5) forming an orderly desire as to the disposition of his property ... 34 James MacKenzie, Feeney's Canadian Law of Wills, 4th ed., looseleaf (LexisNexis Canada, 2000) at s. 2.6 describes what is to be proven when will is contested on the grounds of mental capacity: s.2.6 ... When will is contested on the ground of mental incapacity, the propounder must prove that the testator understood what he or she was doing: that the testator understood the "nature and quality of the act." The testator must be able to comprehend and recollect what property he or she possessed, the persons that ordinarily might be expected to benefit, the extent of what is being given to each beneficiary and, finally, the nature of the claims of others who are being excluded. [Footnotes omitted.] [52] From the above reference, Schwann J., in deBalinhard, summarized the root issue of testamentary capacity, at para. 57 as follows: 57 To summarize, in relation to the root issue of testamentary capacity, evidence of the following is relevant and must be considered: 1) whether the testator was knowledgeable about the nature and extent of his or her property; 2) whether the testator understood the persons who would benefit from his or her will and the extent of the bequest given to each beneficiary; 3) whether the testator understood the nature of the claims by those who were not named as beneficiaries; and 4) whether the testator formed an orderly desire to dispose of his or her property. As Kapacila goes on to observe, eccentricity, capriciousness or unfairness is not sufficient marker of testamentary incapacity, nor for that matter should diagnosis of dementia or Alzheimers be taken to be conclusive on the issue. ANALYSIS [53] The evidence presented in support of the challenge to Mr. Szwagierczak’s will is extremely thin. It is based more on what is unknown than on description of any probative evidence going to the issues of capacity that could be presented at trial. At most, Debra’s evidence touches on two matters. Firstly, the evidence provides some vague and nonspecific descriptions of her father’s demeanour and utterances during an extremely troubling and painful time in his life. Secondly, the evidence purports to raise question as to why there was such haste in Mr. Szwagierczak re-doing his will within very short time of his wife’s death, at time when he was quite vulnerable. [54] In my view, the evidence Debra presents of her father’s behaviour at the relevant time does not raise genuine issue for trial on any of the indicia listed by Schwann J. More specifically, these descriptions do not cast any doubt as to 1) Mr. Szwagierczak’s ability to appreciate the nature and extent of his property; 2) his ability to understand who would benefit from his will and the extent of that benefit; 3) his ability to appreciate the claims of those who were not named as beneficiaries; or 4) whether his will reflected the formation of an orderly desire to dispose of his property. [55] Moreover, the evidence of Mr. Szwagierczak’s behaviour and state of mind, as described in the affidavits of Mr. Levasseur, Ms. Walper-Bossence, and Mr. Godwin, suggests Mr. Szwagierczak’s abilities were intact in all these respects. It is also noteworthy that their evidence on the point is uncontradicted. [56] As for the speed within which Mr. Szwagierczak’s new will was prepared and signed, am satisfied that this evidence does not cast any doubt on the testator’s mental capacity. Considering the evidence of Mr. Szwagierczak’s age and his desire to revise the terms of his will, it would not have been unreasonable for him to attend to these revisions as soon as possible, particularly before Katherine and Kristine returned to their homes. While it might have been wise for the propounders to have presented some evidence on this point, am satisfied that the omission does not make the applicant’s challenge any more persuasive. [57] Further, if there was real issue regarding the haste in which the will was prepared and signed, one would have expected the challenge to be based on an allegation of undue influence. Although there was discernible hint of that in the brief and the submissions of the applicant’s counsel, an allegation of undue influence was not formally raised in this case. Considering that such an allegation would require evidence of Mr. Szwagierczak’s free will having been overborne by the actions of others, think the applicant was wise not to have asserted it. Had she done so, would almost certainly have dismissed it. CONCLUSION [58] In the result the application for proof of the Last Will and Testament of Steven Szwagierczak in solemn form is dismissed. Upon the expiry of the appeal period from this decision, the caveat shall be vacated and letters probate may issue as prayed. Each party may have their reasonable costs from the estate. J. R. W. ELSON
Wills and Estates – Proof of Will in Solemn FormWills and Estates – Testamentary Capacity After the death of the testator, one of his five daughters brought an application for an order directing a trial to prove the testator’s 2013 will in solemn form on the ground that the testator did not have testamentary capacity to understand the nature of the document he was signing or the extent of his property. The testator and his wife had executed mirror wills in 2012. His wife died in September 2013, and within two days of her death the testator had signed a new will. It was based on his first will with some revisions. The value of the estate was approximately $343,000 and the will made bequests of $100 to the applicant and another daughter. The testator left the rest and residue of the estate divided into equal shares between his three other daughters. The applicant deposed that at the time the testator’s wife was dying, she visited him and found him to be very confused. When the testator’s lawyer came to meet with him as his wife was dying, the applicant stated that the testator said he did not remember the lawyer and would not sign anything. The only other evidence submitted by the applicant was a letter from the testator’s physician, who reported that he saw the testator in early September 2012 and that he was then alert and could recognize him. The evidence presented by the two daughters who were named as executors of the will consisted of their own affidavits and the affidavits of a friend of the testator; a bank official who had prepared a power of attorney for the testator made at the time of the death of his wife; and the lawyer who prepared the original 2012 wills and the 2013 will. The contents of the various affidavits deposed to the testator’s estranged relationship with the applicant and her sister, his intention to exclude the applicant from his will, and that he appeared to be mentally capable. The lawyer’s affidavit deposed that at the initial meeting that she attended with the testator when his wife was dying, he was devastated by grief and she did not take any instructions. When she met with him again to take instructions regarding his new will, she kept notes of them—the testator had expressly instructed her to make sure that the two daughters would get nothing except for the specific bequests. The lawyer confirmed that she had no concerns with the testator’s capacity. HELD: The application was dismissed. The court held that the applicant’s evidence in support of the challenge to the will was extremely thin and the descriptions of the testator’s behaviour did not raise doubt regarding his capacity regarding his property and his disposition of it. The other affidavits presented uncontradicted evidence of the testator’s undiminished mental capacity.