2003 SKQB 490 Q.B. A.D. 2003 No. 26 J.C. W. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF WEYBURN BETWEEN: WILLIAM WAYNERT and SHARON CRONK, in her personal capacity and in her capacity as executrix of the Estate of Charles John Carlson, DIANNE SJOBERG, MARILYN ONDIK and LYNN HEIKKILA RESPONDENTS K.J. Bell for the applicant T.G. Graf, Q.C. for the respondents FIAT KYLE J. November 20, 2003 [1] By notice of motion of January 23, 2003, William Waynert, one of 29 nieces and nephews of Charles Carlson, has sought proof of the will of Charles Carlson in solemn form, questioning testamentary capacity, due execution of the will and raising the spectre of undue influence and coercion. [2] Mr. Carlson died October 13, 2001, and his will dated November 11, 2000, was admitted to probate January 28, 2002. By his will he bequeathed to four of his nieces his entire estate of approximately $291,000.00. He was 88 at the time of his death. When he signed his will, after dictating it to one of the executors, he seemed fully conscious of its content. The will was witnessed by two friends. [3] There is presumption of testamentary capacity and in the face of challenge the executors have provided uncontradicted evidence which affirms positively the testimony capacity of Mr. Carlson not only at the crucial time the will was signed but for some months thereafter. Those attacking the will have not come forth with evidence which, if accepted at trial, would tend to negate testamentary capacity. [4] When he decided to divide his estate among four of his nieces, two relatives took exception, but there is evidence that both of them had disappointed him in some way. They were inexplicably able to obtain the notes of lawyer who had received instructions for never-completed will in 1998. While the propriety of such disclosure by the lawyer is matter for another day, its admissibility and its relevance is far from clear. [5] The evidence is that two and one-half years before he signed the will now before the court, he had instructed lawyer to draw very different will, one which was never signed because of family pressure. That there might be some pressure to favour his family over charity is not, think, surprising and his yielding to that pressure is consistent with family solidarity and could not be construed as undue influence. [6] Mr. Carlson had small stroke which affected his speech temporarily few days before the will was signed. The doctor has testified that in his opinion Charles Carlson could instruct and complete last will and testament at that time. [7] While Mr. Carlson may have given instructions for will in 1998 and then changed his mind, there is nothing out of the ordinary about the circumstances surrounding this will. Evidence now before the court by one of the witnesses to the will is “We sat at the dining room table and Charles looked over the will carefully and signed his name then my wife Doreen Lloyd and signed as witnesses, one after the other.” [8] My role, as is carefully detailed by Baynton J. in Dieno Estate v. Dieno Estate, 1996 CanLII 6762 (SK QB), [1996] 10 W.W.R. 375; 147 Sask. R. 14 (Sask. Q.B.), is that of gatekeeper. I am not to send the issue for trial unless evidence is brought forth which, if accepted, would tend to negative knowledge and approval or testamentary capacity. The proponents of the will have, by uncontradicted evidence, satisfactorily answered the challenge made by the applicants and have positively affirmed testamentary capacity. No issue of credibility has arisen. [9] The motion is therefore dismissed with costs.
The applicants brought a motion seeking proof of the Will in solemn form, questioning the testamentary capacity, due execution of the will and raising the issue of undue influence and coercion. HELD: The motion was dismissed with costs. The role of the Court is that of a gatekeeper. The Court will not send an issue to trial unless evidence is brought forth which, if accepted, would tend to negative knowledge and approval of testamentary capacity. No issue of credibility arose.