Tag: family dispute

12 Nov

On the Landscape of Familial Discord a Person Might Lack Capacity

James Jacuta Litigation Tags: , , 0 Comments

In  McAndrew Estate (Re), 2020 ABQB 614, Mr. Justice Nicholas Devlin starts his decision with reference to the late Patricia McAndrew’s three wills by saying: ”Her brother, supported by two of her children, asserts that her 2012 holograph will, is valid and should prevail. In the alternative, he advances a 2011 will, drafted with the aid of her solicitor. Her daughter Diane asserts that Ms. McAndrews lacked the capacity to execute either of the latter wills and that the holograph in particular was the product of undue influence. Consequently, she asks the Court to endorse Ms. McAndrew’s original 2005 will which, not surprisingly, leaves her the preponderance of the estate. On this familiar landscape of familial discord, the contest of wills is joined.”

The decision was released on October 14, 2020, in Calgary and is interesting for procedural and other reasons, but, the decision revolves around the issue of the deceased’s capacity.  Justice Devlin’s decision reviews and reinforces current legal concepts and states, “…capacity is not a “bright line” or “threshold” question; rather, it is both time- and task-specific. A person who lacks capacity at some points in time may have other periods of lucidity. Further, a person may have the capacity to undertake some tasks, but not others.”

He reiterates from Scramstad v Stannard ABQB 1996 188 AR 23 at para 130: “In my view, it is important to keep in mind at all times the instruction contained in Goodfellow, to the effect that: just because a person’s mind and memory is not what it used to be, does not mean that such person lacks testamentary capacity; the test to determine testamentary capacity is not therefore one of certainty or satisfaction beyond a reasonable doubt. Rather, based on the authorities referred to, in my view the test is one that can be answered by a layman possessed of good common sense based on everyday experience and judged on a “balance of probabilities” that is: is it more probable than not, having regard to all of the evidence that a person at the time such person made his or her Will possessed or did not possess a disposing mind and memory to “clearly and discreetly judge, all those things, and all those circumstances, which enter into the nature of a rational, fair and just testament”.

He also adds, “… capacity in general, and testamentary capacity in particular, is a legal question, not a medical one. While medical evidence can and often does inform the legal assessment, such evidence is not necessarily determinative. In Stevens v Morrisroe, 2001 ABCA 195 at para 19, Picard JA stated: “Soundness of mind is a practical question and does not depend on scientific or medical definition. As Feeney said, supra, at p. 33 “Medical evidence is not required, not necessary nor necessarily conclusive when given. “

In this case, the decision was that the deceased had testamentary capacity and the 2012 holograph will was admitted to probate.

Thanks for reading!

James Jacuta

08 Jan

Kent v. Kent: Matrimonial Homes and Resulting Trusts

Suzana Popovic-Montag Estate & Trust, Wills Tags: , , , , , 0 Comments

We often hear of the importance of forging and maintaining good relations with the in-laws. Hence, wishing to keep everyone united, and the spouse happy, we avert our gaze when the one in-law overindulges at the Christmas party, we bite our tongue when another in-law refers to us as “hey, you in the yellow”, and we put on a stiff smile when yet another in-law visits us on our birthday to ask for a loan. In one recent Ontario case, however, we see the grim consequences of having too good a relationship with one’s in-laws.

The cautionary case of Kent v. Kent arose from a legal dispute between the deceased’s son-in-law and her grandchildren. Perhaps unaware of her son-in-law’s inclinations towards insatiability and ingratitude, the deceased left equal shares of her home to the three eventual litigants. By and by, the son-in-law sought a declaration that he was entitled to a much larger share. He argued that since his mother-in-law had registered his late wife as a joint tenant (the transfer was gratuitous), and he and his late wife had moved in a decade after, the house “became their matrimonial home”. He relied upon subsection 26(1) of the Family Law Act:

If a spouse dies owning an interest in a matrimonial home as a joint tenant with a third person and not with the other spouse, the joint tenancy shall be deemed to have been severed immediately before the time of death.

The grandchildren countered with the presumption of resulting trust. According to this legal principle, despite legal ownership, property should be returned, or result, to the person who actually paid for the property (the beneficial owner). The presumption can be rebutted if the transferee can show that the transferor intended to gift the property (Pecore v. Pecore).

The Court ruled in favour of the grandchildren, finding that because the transfer was made from a parent to a child, with no consideration, the presumption of resulting trust applied. The son-in-law, who could not muster any evidence in his favour, did not rebut the presumption. The Court also ascribed significance to the Will itself:

The provisions of the will and transfer made by Marian in July 2015 suggest that she believed that she was the sole owner of the property, and in a position to dispose of it as she did.

This ruling might provide some comfort to those who have invited their married, adult children to live in their homes. It is a bitter fact, though, that the son-in-law’s conduct can bring no good to the reputation of in-laws, and that if his example is followed, we might see more in-laws receiving bequests of “thirty pieces of silver” or trusts comprised of stockings full of coal.

Thanks for reading!

Suzana Popovic-Montag and Devin McMurtry


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