The recent Saskatchewan King’s Bench decision in Kuffner v. Jacques offers guidance on when the merits of a will challenge can be decided in a summary fashion, as opposed to a full trial.

Factual background:

The factual background in Kuffner was as follows:

  1. The Will Challenge:

The deceased at issue was Phillip Eugene Jacques (“Deceased”). Mr. Jacques died on September 19, 2018, at the age of 88. Prior to his death, the Deceased executed wills dated May 28, 2012; October 10, 2013; October 21, 2013; and July 9, 2014.

The will dated July 9, 2014, was admitted to probate on December 6, 2019. The challenger, Jason Kuffner (“Challenger”) was one of eight step-grandchildren of the Deceased. The May 28, 2012 will provided for the Challenger to receive a larger share of the estate than the Challenger would receive under the later wills. The primary difference was that the 2012 will provided the Challenger with a specific bequest of land and farm equipment, while the subsequent wills provided him with a one-eighth share of a portion of the Deceased’s

The Challenger had applied for solemn form, and to revoke probate of the 2014 Will. Mr. Justice Megaw, in a judgment of May 6, 2019 (the “Megaw Judgment”), had concluded there was a genuine issue for trial as to whether the Deceased had testamentary capacity when he executed the will of July 9, 2014.

  1. Application for Summary judgment:

Before moving on with a description of the decision in Kuffner, some context is helpful. For will challenges in Saskatchewan, they typically follow a two stage process:

  1. Stage 1: First, there is a threshold Chambers hearing to determine if there is sufficient merit in the testamentary challenge to warrant a trial. This Chambers hearing will be simply conducted on affidavit and documentary evidence. In this case, the Stage 1 hearing was held before Justice Megaw, and resulted in a May 6, 2019 judgment that there was a genuine issue of capacity for trial; and
  2. Stage 2: Second, if the challenger is indeed found to have raised a genuine question affecting the will, a full trial involving vive voce testimony will then typically be held to determine the actual validity of the will. The trial is often preceded by the steps of document disclosure, sworn questioning, and a pre-trial conference.

Summary judgment is a procedure which is distinct from a trial. Summary judgment involves a court reviewing evidence which is primarily (or totally) in affidavit form (paper form). The evidence is thus not introduced through a succession of live witnesses, which is what occurs in trial, where each witness can be examined and cross-examined, to best evaluate credibility.

Here, in Kuffner v. Jacques, the Challenger did not wish to incur the full expense and delay of a trial to deal with the Stage 2 of the will challenge. The Challenger instead applied for what is called summary judgment, seeking (among other things) a declaration that the Deceased lacked testamentary capacity when he executed the wills dated October 10, 2013, October 21, 2013, and July 9, 2014. If the Court had in fact granted such summary judgment, that would produce the desired outcome for the Challenger – i.e. that the May 28, 2012 will would be the document admitted to probate.

Issue posed in Kuffner:

Much of Kuffner distilled to the below issue: whether summary judgment could appropriately decide whether the deceased, Phillip Eugene Jacques, lacked testamentary capacity when he executed wills dated October 10, 2013, October 21, 2013, and July 9, 2014.

Court ruling in Kuffner:

The Court, in a decision written by Mr. Justice Tochor, began by outlining the test which governs whether summary judgment should be employed:

18  A primary task in determining summary judgment applications is assessing whether there is a conflict in the evidence and, if so, whether that conflict can be resolved in some way short of conducting a trial.

Typically, a court will be most comfortable with summary judgment if it concludes that:

  1. The Court can use the summary judgment process to make the necessary findings of fact;
  2. The Court can use the summary judgment process to apply the law to the facts; and
  3. Summary judgment would be more expeditious and less expensive means to achieve a just result than going to trial.

Ultimately, the Court in Kuffner held that summary judgment was not appropriate in this case. In doing so, the Court essentially relied on two grounds.

First, the Court noted that Mr. Justice Megaw, in his prior judgment of May 6, 2019, had made an explicit finding that there was “genuine issue for trial as to whether Mr. Jacques had testamentary capacity when he executed the will of July 9, 2014.” Mr. Justice Tochor held that this prior order provided a reason why a trial should indeed occur.

The Challenger made the argument that Mr. Justice Megaw’s finding there is a “genuine issue for trial” could not be read to mean that Mr. Justice Megaw had found there was a “genuine issue requiringa trial”. However, Mr. Justice Tochor had a different perspective, and concluded:

31      I cannot accept the distinction Mr. Kuffner seeks to advance in this submission. I cannot conceive there is any material difference between “a genuine issue fortrial” and “a genuine issue requiringa trial”. The plain words used by Mr. Justice Megaw convey an unmistakable intention to order a trial to resolve whether Mr. Jacques had testamentary capacity. There cannot be any misunderstanding of Mr. Justice Megaw’s conclusion that a trial of this issue is required in these circumstances.

As an aside, this author has sympathy with the submission of the Challenger. The Challenger argued that an order that capacity raised a “genuine issue for trial” should not be automatically treated as an order that a full trial was definitively required to determine such genuine issue in Stage 2. Given the customary language found in the case law (case law which is often from a prior period of time, in which summary determinations were not accepted as widely as they are now), many courts will simply use the phrase “genuine issue required for trial” in their Stage 1 orders, without turning their minds to the possibility that a separate, future judge may be asked to invoke its summary judgment powers in Stage 2.

But leaving this aside, Mr. Justice Tochor went on to find that, even if he was in error in relying upon Justice Megaw’s ruling of May 6, 2019, to dismiss the Challenger’s application, Mr. Justice Tochor also consciously declined summary judgment for another reason. Put simply, he himself felt uncomfortable in making findings of credibility in the face of conflicting evidence, as it related to the Deceased’s capacity. For example, one conflict arose between:

  1. The evidence of the Challenger, who attested that he saw the Deceased to suffer dementia after suffering from a stroke in April 2013. The Challenger said that he saw the Deceased to be easily confused and his memory was poor, and was otherwise unable to drive alone or conduct his daily affairs;
  2. By contrast, the evidence of the Deceased’s lawyer and accountant, throughout the material times, found the Deceased to be clear of mind, and firm in his understanding of the testamentary changes he was making.

There was also conflicting medical evidence, as two medical professionals had reached different conclusions, on the degree of capacity that the Deceased would have held.

It should be noted, as an aside, that it is open to a judge to resolve conflicts in the evidence within the structure of the summary judgment process, even in the absence of viva voce  For example, parties can cross examine on affidavits. But it appears that Mr. Justice Tochor did not feel that such processes would, in this specific case, give him the comfort that he needed.


Mr. Justice Tochor ultimately dismissed the Challenger’s application for summary judgment. Instead, he ordered that the Local Registrar should, in consultation with the parties, set the matter down for a pre-trial conference. A pre-trial conference is the next step before a trial, and such an order would thus keep the matter moving forward.

Costs of this application were ordered to be costs in the cause. This means that whomever won at the future trial, would receive a specific costs orders in relation to this specific application. Until the winner was known from the future trial, no costs for this application would be paid however.

The author sympathizes with the practical reasons which likely prompted the Challenger to seek summary judgment. A full trial takes much longer than summary judgment (sometimes years longer). A full trial also costs tens of thousands of dollars more in legal fees. This is because a trial requires extensive witness preparation, witness travel, lawyer travel, additional correspondence with the court and parties, and lawyer attendance for full days of trial, etc.

In this author’s experience, there have not been many reported instances of challengers attempting to use summary judgment, to avoid a full trial on Stage 2 of solemn form. The decision in Kuffner provides a sobering indication that it may be difficult for parties to obtain a summary determination in relation to Stage 2 of a will challenge. It ultimately remains a personal decision, for each judge to evaluate whether they feel that summary judgment can resolve conflicting evidence appropriately, on a unique application.