Villeneuve v. MacPherson Estate

Villeneuve v. MacPherson Estate Court Supreme Court Date 2019-03-15 Citation 2019 NSSC 88 Docket 480858 Judge/Registrar/Adjudicator Norton, Scott C. (Honourable Justice) Document Type Decision Decision Content SUPREME COURT OF Nova Scotia Citation: Villeneuve v. MacPherson Estate, 2019 NSSC 88 Date: 20190315 Docket: 480858 Registry: Pictou Between: ANNE VILLENEUVE Applicant v. ESTATE OF MARGARET MacPHERSON Respondent DECISION Judge: The Honourable Justice Scott C. Norton Heard: March 4th, 2019, in Pictou, Nova Scotia Decision : March 15, 2019 Counsel: Jillian Gallant, for the Applicant Jonathan Hooper, for the Defendant By the Court: [1] This is an application under the Probate Act, S.N.S. 2000, c. 31, for proof in solemn form of a will of Margaret MacPherson. The application is made pursuant to s. 69(1) of the Probate Court Practice, Procedure and Forms Regulations, N.S. Reg. 119/2001, which provides that: If an original will is lost or destroyed, the validity and content of the will shall be proved in accordance with Section 31 of the Act upon an application for proof in solemn form, unless the court otherwise orders. [2] The parties agree that the sole issue in this application is whether this court should grant proof in solemn form for a copy of a codicil dated November 7, 2006. The issue arises because the original of the codicil cannot be located. [3] Margaret MacPherson died on February 14, 2018. [4] The applicant Anne Villeneuve was the niece of the late Margaret MacPherson. She filed the application for proof in solemn form on September 26, 2018. John MacPherson is the nephew of the late Margaret MacPherson. He filed a Notice of Objection on December 5, 2018 on the ground that: “the Testatrix destroyed the original Codicil and intended to revoke it”. Evidence [5] Both parties filed affidavit evidence. [6] The applicant, Villeneuve, filed an affidavit sworn on September 13, 2018 in support of the original application for proof in solemn form filed with the court on September 26, 2018. John MacPherson filed an affidavit sworn on November 30, 2018 in support of his notice of objection filed with the court on December 5, 2018. [7] On December 12, 2018 the applicant filed: • the affidavit of Harry Munro sworn on November 27, 2018; • the affidavit of Bernie White sworn on October 9, 2018. [8] On December 19, 2018 the applicant filed affidavits in proof of service on the other persons interested in the Estate, being John MacPherson; Catherine Anne Mattson; Tommy MacPherson and Pauline MacPherson. [9] On January 15, 2019 John MacPherson filed a supplementary affidavit sworn on January 11, 2019. [10] On February 15, 2019 the applicant filed a supplementary affidavit of and Villeneuve sworn on February 11, 2019. [11] By correspondence to the court dated February 15, 2019, counsel for John MacPherson requested that at the outset of the hearing scheduled for Monday, March 4, 2019 that certain paragraphs of the affidavit of Anne Villeneuve sworn on September 13, 2018 and filed on September 26, 2018 be struck, citing Civil Procedure Rule 39.04 and the decision of this Court in Waverley (Village) v. Nova Scotia (Minister of Municipal Affairs) (1993), 123 NSR (2d) 46. Counsel for Ms. Villeneuve responded with a brief citing the Court of Appeal Decision in Armoyan v Armoyan, 2013 NSCA 99, and seeking several redactions from the affidavits sworn by Mr. MacPherson. [12] After hearing submissions from counsel for Mr. MacPherson and counsel for Ms. Villeneuve I decided that with respect to the Affidavit of Anne Villeneuve sworn September 13, 2018: • paragraph 29 should be stuck on the basis that it was in the nature of argument or submission rather than a statement of fact; • paragraph 35: the following words should be struck: “I do not believe that the relationship between Peg and John was ever good, however…” This is speculative and also in the nature of argument or submission • paragraph 69: the following words should be struck: “I am concerned that John has retained or destroyed the original codicil, as…” Again, these words are speculative and argument. [13] As to the objections to the contents of John MacPherson’s affidavits, I declined to strike any portions on the basis of relevance as the affidavits in total were replete with irrelevant statements to the issue before the court and could be tested on cross examination. [14] The affidavits submitted by both the applicant and the respondent contained hearsay statements said to have been made by the deceased Margaret MacPherson and her deceased sister Catherine MacPherson. The parties did not object to the hearsay contained in the affidavits, however made argument as to the appropriate weight they should be given at the conclusion of the matter. [15] Prior to the hearing of the matter it became apparent that Harry Munro would not be available on the hearing date for cross-examination. The Parties agreed that his affidavit could be admitted without his testimony. [16] The parties and Bernie White were cross examined on their affidavits. Facts [17] The deceased, Margaret MacPherson (“Peg”) died on February 14, 2018 in New Glasgow. She was predeceased by her sister Catherine Agnes MacPherson (“Kit”) who died on April 22, 2014. [18] In her last will and testament, dated June 16, 2005, Peg appointed John MacPherson as the executor, with three residual beneficiaries: John MacPherson, Anne Villeneuve and Catherine Mattson. [19] In the Codicil dated November 7, 2006, Anne Villeneuve is appointed as the sole executor and sole residual beneficiary. [20] Kit and Peg lived together in a house at 455 High Street, New Glasgow. Peg left two surviving relatives, her niece, the applicant Anne Villeneuve, and her nephew, the respondent John MacPherson. John MacPherson acted as the executor for Kit’s estate when she died. John was also attorney for Peg under a Power of Attorney dated June 16, 2005. [21] While Kit was in hospital in 2014, she told John where she and Peg kept their Wills: in a chest of flatware in their house New Glasgow. [22] According to John MacPherson, after Kit died, he and Anne went to the house where Kit and Peg lived, and there he found the original Wills for both Peg and Kit along with a safe-deposit key. John later went to the bank to open the safe-deposit box and found a copy of the Codicil dated November 7, 2006. He swears in his November 30, 2018 affidavit that exhibit 3 to his affidavit is a copy of the Codicil found in the safety deposit box at the bank in New Glasgow. This Codicil is unsigned on the last page and contains a stamp on the first page with the following information: “Original Codicil Dated (handwritten “Nov 7/06”) Original Codicil Witnessed By (handwritten “HM & B Maclean”) Original Codicil Held By (handwritten “Client”)” [23] John MacPherson says that he went to see Anne Villeneuve at her hotel and showed the copy to her. He says that Anne told him that this was the first time that she had seen it or was aware of it. [24] Anne Villeneuve testified that the document that John showed her at that time was the original Codicil. In cross examination she stated that she had never seen a Codicil prior to this but was generally aware that a Codicil was used to amend a Will. She says that the document she was shown was signed. She says that the document that was shown to her was like the signed Codicil later sent to her in January 2015 by John. [25] John MacPherson says that he sent a copy of the Codicil to Anne with a handwritten cover letter dated January 23, 2015. [26] Anne’s affidavit sworn September 13, 2018 (court exhibit 1) attaches a copy of John’s cover note dated January 23, 2015 (affidavit exhibit “D”), a copy of the Will executed June 16, 2005 (affidavit exhibit “C”) and a copy of the Codicil executed November 7, 2006 (affidavit exhibit “B”) that came to her from John MacPherson. [27] The copy of the Codicil sent to Anne (affidavit exhibit “B”) is different from the copy attached to John’s November 30, 2018 affidavit (court exhibit 3, affidavit exhibit 3) in these material respects: 1. it bears the full signature of Margaret MacPherson on page 2 of the document; 2. it was signed, published and declared before solicitor Harry Munro and Brenda MacLean; and 3. it is initialed on the first page by Margaret MacPherson, Harry Munro and Brenda MacLean. [28] In paragraph 28 of his November 30, 2018 affidavit, John MacPherson attests: I brought Peg’s original will with me because I wanted to put it in the safe deposit box. When I opened the safe deposit box I found old copies of documents including a deed to the House, insurance papers and a copy of the codicil dated November 7, 2006 (the “Codicil”). This was the first time I had ever seen the Codicil and I was not aware that it existed before I saw it in the safe deposit box. Attached as Exhibit “3” is a copy of the codicil I found in the safe deposit box at CIBC in New Glasgow, dated November 7, 2006. (court’s underlining) [29] The copy attached to his affidavit is unsigned. It has initials on the front page by Harry Munro and Brenda MacLean and a stamp that indicates that the original is held by the “client”. [30] In his cross-examination John MacPherson testified that when he opened the safe deposit box there were two copies of the Codicil. The one that was attached to his affidavit and the copy that was fully executed and was attached to Anne Villeneuve’s affidavit of September 13, 2018. There was no explanation to the court in his supplementary affidavit to explain that he found two different copies of the Codicil in the safe deposit box. [31] In answer to my questions about this discrepancy, counsel for John MacPherson stated that it was clear that John had sent a signed copy to Anne in January 2015 so there must have been two copies in the safe deposit box. The other possibilities is that he made a copy from the original or he obtained a copy from the copy held by the drafter of the Codicil, Harry Munro. [32] Harry Munro is a lawyer and member of the Nova Scotia Bar. He was retained by Margaret MacPherson to prepare her Last Will and Testament. Mr. Munro’s affidavit establishes the following facts: (a) He prepared the Will dated June 16, 2005 (b) He was present and witnessed it signed by Margaret MacPherson in front of himself and Brenda MacLean (c) He subsequently drafted the Codicil dated November 7, 2016 (d) He was present and witnessed it signed by Margaret MacPherson in front of himself and Brenda MacLean (e) At the time she signed the Will and the Codicil he believed her to have testamentary capacity. (f) The execution of the will and the Codicil was in compliance with all the provisions of the Wills Act (Nova Scotia) [33] I would note that the copy of the Codicil attached to Mr. Munro’s affidavit is the same completely signed version as attached to the applicant’s affidavit. I also note that John says he met on three or four occasions with Harry Munro in March and April 2014 and so it is plausible that he obtained the signed copy of the Codicil from Munro. [34] Bernie White was a neighbour to Peg and Kit MacPherson. He is a retired registered nurse and first came to know Peg and Kit when he cared for their brother Rod when he was terminally ill. As Peg and Kit aged, he helped them out with household errands as well as driving them about to the bank and appointments. As their health failed further he would deliver purchased cooked food to their home. He testified that he observed that they were hurt when John MacPherson would cancel planned visits to see them and on some occasions would not show up and not call to advise that he was not coming. [35] Mr. White testified in his affidavit that he remembers hearing Margaret MacPherson say “nothing here for John” in relation to her estate. He was unable to date this conversation. Submissions [36] The Applicant submits that the Codicil in issue is a valid testamentary instrument for the following reasons: • the formalities of the Wills Act were complied with; • the Testatrix had knowledge and approved of the contents of the Codicil; • the Testatrix had testamentary capacity when executing the Codicil in 2006; and • there was no undue influence exerted over the testatrix in relation to her Codicil executed in 2006. [37] The applicant cites Re Patterson Estate, 2017 NSSC 221, in support of these principles. [38] In order to have a Will or Codicil proved in solemn form, the court must be satisfied of three requirements, which were set out by the Supreme Court of Canada in Vout v. Hay, [1995] 2 S.C.R. 876, and applied by this Court in Re Willis Estate, 2009 NSSC 231, 2009 Carswell NS 426. First, the formalities of execution required pursuant to the Wills Act, R.S.N.S. 1989, c. 505, must be satisfied and the testator must have known and approved the contents of the Codicil. The onus of proving these requirements rest with the applicant. I am satisfied that in this instance, all the requirements of section 6 of the Wills Act are satisfied. The Codicil is in writing and it is signed by the testator and by two witnesses (in the testator’s presence), and one of the witnesses has provided an affidavit. Once it is shown that the Codicil was duly executed with the required formality, a rebuttable presumption arises that the testator knew and approved of the contents of the Codicil. This presumption was not rebutted. As such, the first requirement for proof in solemn form is met. [39] The second requirement is that the applicant must show that the testator possessed the required capacity to create and understand the codicil when it was executed. However, proof of proper execution also raises a rebuttable presumption that the testator had the required capacity when the Codicil was executed. This presumption has not been rebutted. Indeed, the affidavit of Harry Munro proves capacity. Therefore, I find that the second requirement for proof in solemn form is also met. [40] Finally, if it is shown that undue influence was applied to the testator, the Codicil will not be admitted to probate. The burden of proof rests on the party attacking the will to show that the testator’s assent was obtained by undue influence, such that the will is a product of coercion rather than of the testator’s wishes. There was no evidence advanced to show that any undue influence was exercised upon the testator in this matter. Therefore, I find that there are no suspicious circumstances in the execution of the June 2002 will. All three requirements required to prove the Codicil in solemn form have been met. [41] The respondent did not take issue with any of these issues in his evidence or his submissions. The sole issue raised by the respondent is whether the Court should grant proof in solemn form to a copy of the Codicil in the absence of the original. [42] The respondent argues that the original Codicil was in the possession of the Testatrix and while the original will was found in the chest of flatware at home, the original Codicil was not there, and this raises a rebuttable presumption that the Testatrix destroyed the original Codicil with the intention to revoke it. [43] The respondent cites the decision of Portrusching Estate, 2009 NSSC 229, as the authority governing the admission of copies of testamentary instruments and in particular paragraphs 7 and 8. I note that in Protrusching there was no signed copy of the Will in issue and the question was whether the unsigned copy on the computer of the lawyer who drafted it was sufficient for proof in solemn form. The court held it was. [44] The respondent also cites the Nova Scotia Court of Appeal Decision in Brimicombe v Brimicombe, 2000 NSCA 67. In that case the Court of Appeal upheld the decision of the Registrar of Probate to admit a copy of a will into probate when the original could not be found. The Court noted that the burden to overcome the presumption of revocation is the balance of probabilities. [45] Both cited cases refer to historic authorities that dealt with missing testamentary instruments prior to the age of carbon paper, photocopies and now electronic copies of documents. In those historic circumstances the absence of the original meant the absence of any evidence of a signed instrument and in my view must be read in that historical context. [46] The Court of Appeal found in Brimicombe that, subject to the issue of presumption of revocation, a copy of the will may properly be the subject of a grant of probate when the evidence meets all the requirements of the Wills Act. [47] In the present case, it is clear from the evidence that on November 7, 2006 Margaret MacPherson was of testamentary capacity and had reason to decide to remove her earlier bequests to John MacPherson and Catherine Mattson and to remove John MacPherson as executor. She met with the solicitor who had prepared her will a year earlier and provided clear instruction on the specific changes evidenced by the Codicil. Mr. Munro says he believed she had testamentary capacity to do so. [48] The Court of Appeal in Brimicombe noted that the character of the custody which the Testatrix had over the will is a material factor. Indeed, the presumption does not apply where the will cannot be traced to the possession of the Testatrix. Here, there is no clear evidence that the possession of the original Codicil remained with the Testatrix after she left Mr. Munro’s office. She may have placed it in the safety deposit box or she may have placed it with the will in the flatware chest or she may have placed it somewhere else. It does not appear likely that she would have removed it from the safe deposit box for the purpose of destroying it and left a copy in the box. The wills of both Kit and Peg MacPherson were located by John MacPherson in the family home in the flatware chest. Kit held a Power of Attorney for Peg. It was Kit who signed in to access the joint safe-deposit box. It was Kit who told John where to find the wills in the flatware chest. It is clear that if the Codicil was also kept there, Kit had access to it as well as Peg. At the time the will was located in the silver chest neither Kit nor Peg lived in the home. [49] It is also clear from the evidence that as of 2009 Peg began to exhibit signs of dementia and at some point between 2009 and 2014 she no longer had testamentary capacity. Because revocation requires animus revocandi, the presumption does not arise if the loss is known to have occurred during a period of testamentary incapacity. [See Oosterhoff on Wills, 8th ed. (2016 Thomson Reuters)] In the present case there is no clear evidence as to when the original Codicil was last seen after it left the lawyer’s office (leaving aside Anne’s evidence that she believes John showed her the original). [50] Theobold on Wills, 18th ed. (2016 Thomson Reuters), comments as follows: The strength of the presumption varies according to the security of the testator’s custody of the will – the safer the security, the stronger is the presumption. The presumption may be rebutted by evidence of non-revocation, such as evidence that the will was destroyed by enemy action or accident or evidence showing the testator’s continuing goodwill towards the beneficiaries and his intention to adhere to the will. On the other hand, the presumption may be supported by evidence showing, for instance, the testator’s intention not to adhere to the will. The court decides on the balance of probabilities, having regard to all the evidence, whether the testator destroyed the will with the intention of revoking it: the party propounding the will is not bound to establish an explanation as to why the will was missing at death. [51] The evidence established the following: • The Testatrix showed no history of destroying wills. • Bernie White corroborated the intention of the Testatrix to leave nothing to John MacPherson. • When Anne Villeneuve and John went together to visit Peg at the Oddfellows Home, Peg created a scene in the hallway. She yelled at John and slammed her walker on the floor and told him she had cut him out of her will. Counsel for John argues that this cannot be reliable evidence due to her advanced dementia at this time. However, according to Anne, Peg had periods of clear thought. Although 2009 medical records were introduced showing testing at the mild level of dementia, no additional evidence was introduced and specifically no expert opinion was introduced on whether such a statement by Peg to John and Anne could not be relied upon. John MacPherson never denied this exchange. Anne attested that John was visibly upset. • There was no change of attitude or circumstances that made it appear that the Testatrix wished to change her Codicil . • The Testatrix never expressed the view to anyone, including John, that she had a change of mind as to the intentions evidenced by the Codicil. • Past practice suggests that if the Testatrix intended on making a further change to her estate plan while she still had capacity, she would have contacted Mr. Munro. • It was John MacPherson that found the original will but only a copy of the Codicil that removed him as both executor and beneficiary. Anne Villeneuve believes that she was shown the original Codicil by John MacPherson at her hotel room on March 27, 2014 following Kit’s death. She then received a copy with his handwritten note of January 23, 2017. The copy of the Codicil that he attested he provided to Anne Villeneuve is unsigned, but the copy Anne says she received from him is signed. [52] In summary, these circumstances, taken collectively, persuade me on the balance of probabilities that: • The presumption is not raised because there is no compelling proof that the Codicil was known to be in the Testatrix’s exclusive possession at any time after she left her lawyer’s office; • Alternatively, if the presumption was raised it has been rebutted; • There was no intention on the part of the Testatrix to destroy the will with the intention of revoking it. • There is some evidence that at the time of the presumed revocation the Testatrix no longer had testamentary capacity. [53] I would therefor admit to Probate the copy of the Codicil dated November 7, 2006 as attached to the applicant’s affidavit at exhibit B. [54] Both parties shall have their costs on a solicitor and client basis payable from the Estate. Norton, J.