The recent Saskatchewan King’s Bench decision in Vaudreuil v Madson is an example of a testamentary document in which a trial was required to determine its validity. This was because of contradictory evidence which had been adduced as to require findings of credibility at trial.
A brief summary of the factual background in Vaudreuil was as follows:
- Paul Shlahetka (“Deceased”) died on August 6, 2021, at 91 years of age. The Deceased had six siblings, all of whom predeceased him. His sister, Annie, died in 2019. Annie had three daughters, Adeline McPhee, Ms. Vaudreuil, and Ms. Nehring.
- The applicant, Gloria Vaudreuil, and her sister, Irene Nehring (“Applicants”), were nieces of the Deceased. They filed a caveat against the Estate of Paul Shlahetka on August 12, 2021 preventing anything from being done in relation to the Estate. They suggested that the valid testamentary document for the Deceased was a Last Will and Testament dated May 7, 2014, prepared by the Tourney Law Office in Yorkton, Saskatchewan.
- In contrast, the respondents, Irvin Madson and Cynthia Madson (“Respondents”), contended that a handwritten document dated July 8, 2016 (“July 8 Document”) was the valid holographic last will and testament of the Deceased. The Respondents operated their own farm in the District of Springside. They were neighbours and friends of the Deceased.
Evidence of capacity in relation to the Deceased:
- There was contrasting evidence filed by the parties, in relation to the capacity of the Deceased, from 2015 onwards.
- The Court found, for example, that on or about February 9, 2015, the Deceased, while driving his car on a rural road near his home, hit the ditch, and became stuck in the snow. He was found by the RCMP who returned him to his home. The next day, the Deceased was driving his truck, ostensibly to retrieve his car, and again hit the ditch. He tried to dig himself out of the snow using his hands in -25-degree weather. The RCMP found him by his truck, disoriented and with his hands frostbitten by the cold. The RCMP took him to Yorkton Hospital where the Deceased was admitted for treatment.
- While in hospital, the Deceased remained disoriented to time, place and person. His attending family physician, Dr. Oduntan, identified that the Deceased had an extensive family history of dementia and a past history of confusion and memory loss in 2009, but that his memory loss in 2015 had become more significant.
- Oduntan performed three separate Mini-Mental State Examinations on the Deceased between February 10, 2015 and March 5, 2015. The Deceased scored very low on each one. He was diagnosed with advanced dementia and a certificate of incompetence was forwarded to the Public Guardian and Trustee.
- The Deceased was placed at Canora Gateway Lodge where he continued to reside until his death on August 6, 2021.
- On June 28, 2016, the Madsons removed the Deceased from the Gateway Lodge and took him to see a Yorkton lawyer. This lawyer indicated he thought the Deceased had capacity to do a will, although the notes he made of this attendance appear to have been limited in scope.
- Apparently, on July 8, 2016 the Deceased remained concerned about re-doing his will. Mr. Madson took the Deceased to his own home and sat him down at his kitchen table with a pen and a piece of paper. Mrs. Madson was not present.
- The Chambers Judge described what happened next, as follows:
53] …Mr. Madson said, based on what [the Yorkton lawyer] had advised with respect to a holographic will, that he told Mr. Shlahetka to write down what he wanted and left him on his own for about 20 minutes. During that time, he said Mr. Shlahetka wrote down the first part of the July 8 Document. Mr. Madson averred Mr. Shlahetka then called him back, but when he looked at what Mr. Shlahetka had written Mr. Madson said he told him “it was not really a will but more of a power of attorney” and it “did not really say what was to be done with his estate after he died”. Mr. Madson averred he then left Mr. Shlahetka for a further 30 minutes “or so” during which time Mr. Shlahetka wrote out the second part of the July 8 Document. Mr. Madson averred that when Mr. Shlahetka called him back in, he said words to the effect “now take this and rub it under Gloria’s nose”. Mr. Madson further averred: “He knew that at this point that Gloria was trying to get guardianship over him and felt she was trying to get his property, and was very unhappy about that”. Mr. Madson averred that after doing the July 8 Document Mr. Shlahetka was very content and felt everything was looked after.
A key issue in Vaudreuil was whether proof on solemn form was required to determine the validity of the July 8 Document.
Findings of the Court:
The Court held that solemn form was required. The Court held that the Applicants had adduced evidence, which if accepted at trial, would tend to negate the Deceased’s testamentary capacity at the time of the July 8 Document. The evidence on capacity was contradictory. Thus a trial, and the tools of cross-examination offered by trial, would better allow a trier of fact to truly determine which side’s evidence was more reliable.
The below findings of the Chambers Judge, taken from his decision, outline some of his factual conclusions:
 First, Mr. Shlahetka’s capacity remained in issue from and after his placement in Gateway Lodge in or about March 2015 to at least July 8, 2016, as well as after that date.
 Second, the affidavit evidence raises a serious issue as to Mr. Madson exerting undue influence over Mr. Shlahetka, including in his comments with respect to Mr. Shlahetka’s relationship with his nieces and nephew and more particularly regarding Ms. Vaudreuil’s motivation in seeking to manage Mr. Shlahetka’s affairs. Further, based on his own affidavit, it is apparent Mr. Madson coached Mr. Shlahetka in the preparation of the July 8 Document.
 The evidence regarding Mr. Shlahetka’s capacity is highly contradictory.
 As can be seen from the above examination of the evidence, there were significant conflicts regarding Mr. Shlahetka’s mental state at the time the July 8 Document was signed, his intentions, his relationship with his nieces and nephew, his relationship with the Madsons, the actions and role of Mr. Madson and the circumstances surrounding the making of the July 8 Document. These are not mere contradictions on immaterial issues. There are major conflicts in relation to material issues that could affect a determination of capacity and undue influence. Having regard for the summary of the affidavit evidence set out above, controversy remains on several critical matters in dispute, some of which overlap, and many of which will require an assessment of credibility by a trier of fact.
Ultimately, the Chambers Judge made the following order:
- He directed a trial to prove the July 8 Document in solemn form to determine what portion, if any, of the July 8 Document expressed the testamentary intention of the Deceased;
- The issues to be determined at trial included (without limitation) the below:
- Whether the Deceased, at the time of the execution of the July 8 Document, had testamentary capacity; and
- Whether the Deceased, at the time of the execution of the July 8 Document was subject to undue influence.