What’s the Value in a Video?

Written by Saul Benary

Testators beware. Even having a solicitor record a video of testamentary wishes may not be enough to prevent a challenge to the will. This lesson was learned the hard way in Schell Estate (Re), 2018 ABQB 991, which was an application to the Court of Queen’s Bench of Alberta for summary dismissal.

As is often the case in these situations, the trouble started when a parent disinherited her child. In her 2007 will, Eileen Schell distributed her estate equally among her three children, Teresa, Dennis, and Steven Schell. Just two years later, however, Eileen changed her will, leaving 50% to Teresa and 40% to Teresa’s daughter Junifer. She left only 10% to Steven and disinherited Dennis entirely, while leaving their offspring equally impacted. Notably, Teresa was made the executor along with the Bank of Nova Scotia Trust Company (BNSTC).

Eileen passed away in 2014, revealing the change. Dennis and Steven unsurprisingly challenged the 2009 will, alleging Teresa exerted undue influence over Eileen and Eileen lacked testamentary capacity due to dementia. Teresa and BNSTC brought an application for summary dismissal, alleging the claim had no merit.

So, what happened in those two years? The parties disputed most of the facts at issue, but certain things were clear. Teresa and Dennis were fighting over a farm they were inheriting from their father, Eileen’s ex-husband, after he passed away. Junifer happened to live on that farm. Meanwhile, Steven became estranged from Eileen after the divorce in 2000 but had some limited contact with her in 2008 and 2009. Eileen was understandably concerned about all of this.

Eileen was also aging mentally at the time of her 2009 will’s creation. A medical assessment on October 28, 2009, found Eileen had “mild cognitive impairment” and “some short term memory decline”. When Eileen retained a solicitor to draft a new will on November 9, 2009, the solicitor learned of the assessment and asked her to get a second opinion from her family doctor. The solicitor also took extensive steps to ensure and document Eileen’s independence and capacity, meeting with her for 5-6 hours between November 9 and 19, 2009. Eileen’s family doctor did their own assessment on November 18, 2009, and signed off on the solicitor’s letter attesting to Eileen’s capacity. The solicitor had Eileen sign the 2009 will and recorded a video of her on November 19, 2009.

At the hearing, Teresa attempted to show Eileen was fully independent and capable, backed by the aforementioned written and video evidence recorded by Eileen’s solicitor. On the video, Eileen discussed how upset she was at Dennis’ behaviour toward Teresa and Junifer. She stated she thought he had become greedy and litigious. She said he was no longer in her life. She also mentioned she was worried that if Dennis got the farm, Junifer would suddenly be without a home. Dennis and Steven had not yet cross-examined the solicitor on the video evidence by the hearing date.

Dennis and Steven portrayed an entirely different series of events, submitting untested affidavits full of hearsay from themselves and some of Eileen’s friends. Dennis claimed he and his partner had actually been taking care of Eileen, both at her house and while taking her on vacations abroad, including one to Greece mere weeks before she made her 2009 will. In their rendition, Teresa and Junifer had poor relationships with Eileen. This changed suddenly and dramatically around the time of the 2009 will, which was drafted by a solicitor Teresa located and drove Eileen to. When Steven saw Eileen in April 2009, he claimed she was going into “trancelike states”. Dennis, Steven, and Eileen’s friends all wrote about how she began to become forgetful and isolated, act uncharacteristically, and exhibit paranoid behaviours, which were all purportedly exacerbated by Teresa and Junifer.

Concerning the video, Dennis and Steven also noted that Eileen appeared confused at times. The solicitor needed to remind her that she was excluding Dennis from the will. She thought Steven lived in British Columbia (he had never done so). Off camera, Eileen signed the will in the wrong place and had to redo it.

This initially appeared to leave the Court in a difficult position. The Court of Appeal of Alberta (ABCA) had not yet written its judgment in Weir-Jones Technical Services Incorporated v Purolator Courier Ltd., 2019 ABCA 49, which clarified the application of the test for summary judgment articulated by the Supreme Court of Canada (SCC) in Hryniak v Mauldin, 2014 SCC 7. The SCC had stated a summary judgment or dismissal was appropriate, and there was no genuine issue for trial, where it would: be fair and just, allow the judge to make necessary findings of fact and apply the law to them, and be a “proportionate, more expeditious and less expensive” way of giving a just result than a trial. In Alberta, however, the Rules of Court allowed for summary judgment where the applicant showed, among other things, that the plaintiff’s claim had “no merit” or the defendant had “no defence”. Courts had become divided on whether the Rule gave a high bar to overcome, such as the moving party’s position being “unassailable”, or whether the moving party merely had to meet the test on a simple balance of probabilities (the latter is now the standard).

The Court decided to sidestep the technical debate entirely. It found, whatever the interpretation of Hryniak, it could not make the findings of fact necessary to deliver a fair and just result. The disparity between the sets of alleged facts was too wide, the evidence too untested, and the unsettled questions too many. The video was important but raised its own questions.

In the end, the Court dismissed the application. It awarded costs to Dennis and Steven. Since the Court found Teresa had acted unreasonably in bringing her application given the state of the facts and issues, it required that the costs could not be paid out of the estate.