The recent Saskatchewan Court of King’s Bench decision in Riben Estate (Re), 2023 SKKB 72 offers a reminder that a will challenger who alleges coercion must offer direct evidence to actually prove that pressure resulted in the creation of the challenged will. If they cannot offer such direct evidence, a court may find that there is no genuine issue for trial, and dismiss the will challenge.
- Judy Riben (“Judy”) died on September 1, 2021, leaving behind:
- Son, Paul Riben (“Paul”);
- Son, Carl Riben (“Carl”);
- Daughter, Juanita Menard (“Juanita”).
- Judy had executed a will on April 21, 2021 (the “April Will”), before lawyer Marianne Kramchynsky in Blaine Lake, Saskatchewan;
- On July 20, 2021, Judy had executed a revised will (the “July Will”), which gave less to Paul than the prior April Will.
- At the time of Judy’s death, there was an outstanding lawsuit that was initiated by Paul against Judy (while she was alive), and also against Carl and Carl’s wife, Maria Riben.;
- There were a variety of applications before the Court in Riben Estate. For the purpose of this blog article, the writer focuses on the application by Paul to have co-executors Carl and Juanita prove the July Will in solemn form.
Issues in dispute:
The issue was whether Paul had adduced evidence which presented a genuine issue for trial, on the issue of alleged undue influence. If so, the court would order a trial which would determine if the July Will was valid.
Steps involved in a will challenge:
To challenge a will in Saskatchewan, a challenger must go through two levels of hearings:
- The first stage is a threshold Chambers hearing to determine if there is sufficient merit in the challenge to warrant a trial;
- The second stage (if the applicant is successful) is a trial hearing to actually determine the allegations made against the will.
Positions of the Parties:
Paul made various submissions as to why he felt solemn form should be ordered:
- While Paul did not contend that Judy lacked mental capacity to make the July Will, he contended that Carl unduly influenced Judy in the preparation of the July Will;
- Paul attempted to offer the below as “suspicious circumstances” relating to the preparation of the July Will:
- There had been significant revision of Judy’s will in Carl’s favour and to the detriment of Juanita and Paul. This was in contrast to the April Will, which had been made only three months prior;
- Judy had made a inter vivos transfer of land from Judy to Carl and Judy jointly, which would have the effect of resulting in a direct transfer to Carl once Judy passed away.
- Paul pointed to the fact that Judy allegedly expressed in August 2021 to Juanita that the joint transfer to Carl by Judy had been a “mistake” and that the property was supposed to be divided equally between Carl, Paul and Juanita;
- Paul said that, due to her cancer diagnosis and narcotics and anti‑anxiety medications, Judy was more susceptible to coercion and undue influence at the time of the preparation of July Will; and
- Paul found it suspicious that Carl drove Judy to the appointment to execute and sign the July Will. Paul said that Carl “exerted significant pressure by constantly telling her she needed to sign it and yelling at her to get into the car before the appointment”.
- Paul also alleged that Carl would bully and abuse Judy and would yell and threaten her whenever he visited and, eventually, Judy had to start taking anti‑anxiety medication whenever she had to see Carl;
- Paul and Carl had at all material times been embroiled in litigation. Paul believed that Carl pressured Judy to execute the July Will because Carl was upset that Paul wanted his land back and Carl was envious of Paul’s success with his distillery business.
Paul also offered an affidavit from Juanita, in which she said in part:
- She observed that Judy began to feel unwell in January or February 2021. An MRI on April 9, 2021, revealed that Judy had metastatic breast cancer which had spread to her lungs and spine. Judy had surgery and returned home on April 21, 2021, but she was hospitalized again at the end of June, recovered for a short while;
- Around July 25, 2021, Judy had a breakdown and was carried out of the house by Paul; she was hospitalized until August 6, 2021. After her discharge from the hospital, Judy moved into Juanita’s condo in Saskatoon, where she lived until she died on September 1, 2021;
- Juanita had concerns about whether Carl unduly influenced Judy to sign the July Will. Juanita apparently offered however no specific dates and alleged specifics of such coercion;
- A few days before the second appointment to sign the July Will, Carl had told Judy not to take narcotics on that day, but Juanita states Judy took them that day anyway;
- Juanita said that Carl insisted on driving Judy to the appointment and “exerted significant pressure by constantly telling her she needed to sign it and yelling at her to get into the car before the appointment”;
- Juanita states that she was concerned about Judy signing the July Will but did not interfere because Carl said if she did anything to interfere, he would contact his lawyers because she was “obstructing Mom’s wishes.”
- Juanita said that there was extensive discussion between Judy, Juanita and Carl, as to how to effect a subdivision that Judy allegedly wanted. However, the matter remained unsettled and in the meantime, Judy passed away before it could be resolved.
Carl, in response to the above evidence, offered his own evidence.
He stated that, in his observation, Judy had capacity until shortly before her passing, including having capacity during the month of July 2021. Carl noted that she was doing her own banking, engaging in the day‑to‑day affairs of the farm and was fully aware of everything and everyone going on around her. Carl denied pressuring Judy to execute the July Will or any other document. In short, Carl denied that he had unduly or inappropriately influenced Judy in any fashion.
Carl also provided an affidavit of lawyer Marianne Kramchynsky, who had met with Judy at various times:
- The first communication that Ms. Kramchynsky received on the file was on April 6, 2021, when Ms. Kramchynsky received email instructions for a will, power of attorney and health care directive for Judy from Juanita;
- Kramchynsky met Judy in person on April 9, 2021, when she was brought to her office by Juanita. Judy was not capable of leaving the car on that occasion due to a cancerous tumour on her spine;
- Kramchynsky witnessed Judy’s signature on the email instructions but did not provide any advice as to form or content that day;
- On June 24, 2021, Ms. Kramchynsky received email instructions from Juanita to amend the April Will for Judy. The significant contemplated changes for the will in the appended email included a clause that if Judy is unable to drive, then her vehicle would be gifted to Juanita. As well, the home quarter, house and yard were to go to Carl, but he was to let Juanita reside in the home “as long as she needs”, which could be “indefinitely”;
- Given the volume of material received from people other than Judy, Ms. Kramchynsky was careful to discuss Judy’s wishes with her directly, both in telephone and in person;
- Interestingly, Ms. Kramchynsky wrote that Judy clearly indicated during their phone call of July 5, 2021, that Judy did not want Juanita’s instructions followed;
- Kramchynsky then saw Judy on July 20, 2021, in her office to execute the July Will. Judy attended the office alone and that none of her children were present in her office or in the building as the documents were reviewed or executed;
- Kramchynsky found Judy to be alert, did not complain of pain. Judy was very sure she wanted to transfer her property to joint tenancy with Carl. Judy wanted all three of her children to share in personal belongings, and said that Juanita was already using her car. Judy mentioned working on a settlement with Paul regarding stuff that Paul had taken and any funds from that Judy would decide how to allocate;
- Kramchynsky wrote in her notes that, given the effort it took for Judy to call Ms. Kramchynsky and arrange for this appointment, and given her lucidity and independence, Ms. Kramchynsky had no doubts about Judy’s capacity.
Determination by the Court:
Ultimately, the Court in Riben held that the evidence filed by Paul was not capable of raising a genuine issue for trial, of undue influence.
The Court gave no real weight to the evidence of Juanita. The Court went on to note:
- The Court held that Juanita’s evidence of the July 25, 2021, breakdown was not relevant as it did not have a close proximal nexus to the date of execution of the July Will or the events leading up to it;
- Juanita’s opinions of Judy’s mental capacity are irrelevant and not useful. Juanita was not qualified to give a medical opinion and her statements are of a general undated nature;
- Juanita’s base concerns with respect to Carl’s “undue influence” are irrelevant as there was no factual underpinning for those concerns;
- The evidence relating to Judy taking narcotics “a few days before” her appointment to sign the July Will, was not helpful as there is no evidence provided about how this may have compromised her mental capacity that day or in the few days after. Further, the fact that Carl had told her not to take the narcotics would suggest Carl wanted to ensure her mind was clear when she eventually signed the will. As well, the fact that Judy did not listen to Carl would be suggestive of Judy not being under Carl’s control.
The Court also made the below findings:
- The court placed great significance on the evidence of Ms. Kramchynsky. Her notes depicted Judy as a lucid, independent individual who was capable of making decisions at a difficult stage of her life, given her ill health;
- The Court did not find place much weight on the allegation that Carl was yelling at Judy to get in the car and telling her she needed to sign the will. The Court wrote that while yelling at your elderly mother to get in the car and telling her she needed to sign the will before driving her to the appointment are evidence of impatience, in this context they did not show undue influence. There is no evidence that Carl told her what to give away in the will at the time of the appointment or shortly before;
- The Court placed significance on the presence in the wills of a “non‑Contest Clause – Gifts Not Equal” clause. Such showed that Judy knew that she was not distributing her estate equally but yet believed the distribution was fair in light of assets already transferred to her children during her lifetime;
- The evidence clearly establishes that none of Judy’s children had been controlling her movements to the exclusion of another. In fact, Juanita, as co‑executor of both wills and Judy’s power of attorney, appeared to play an important role in Judy’s life. There was no evidentiary basis to believe that Carl had a level of control over Judy’s thoughts or movements in any manner during the events leading up to the making of the July Will;
- Moreover, the evidence showed that Paul sued his mother (and Carl and Maria) one day after the execution of the April Will. The Court held that common‑sense showed that such conduct would logically have a major effect on Judy’s distribution of assets in the will. Therefore, the fact that Paul received less in the July Will than the April Will was not suspicious at all when the timing of the lawsuit is taken into consideration.
Both of the counsel in Riben were excellent lawyers, and the issues were carefully and comprehensively argued.
Ultimately, the Court found no evidence which, if accepted at trial, would prove undue influence. It is no doubt difficult for a challenger to prove an allegation of undue influence, given that undue influence typically does not occur in front of witnesses.
The outcome in Riben shows that it is never easy to predict what level of evidence a court will find to be required, in order to raise a genuine issue of undue influence. Undue influence remains one of the hardest issues to prove, when challenging a will.