Wittenberg v. Wittenberg Estate

Wittenberg v. Wittenberg Estate Court Court of Appeal Date 2015-08-11 Citation 2015 NSCA 79 Docket CA 434444 Judge/Registrar/Adjudicator Fichaud, Joel E. (Honourable Justice) (CA); Bryson, Peter M.S. (Honourable Justice) (CA); Bourgeois, Cindy A. (Honourable Justice) (CA) Document Type Decision Relations Library Sheet - Wittenberg v. Wittenberg Estate - 2015 NSCA 79 - 2015-08-11 - Library Sheet Decision Content Nova Scotia Court of Appeal Citation: Wittenberg v. Wittenberg Estate, 2015 NSCA 79 Date: 20150811 Docket: CA 434444 Registry: Halifax Between: Richard Wittenberg Appellant v. Linda Cashen, Executrix of the Estate of Gerda Theodora Wittenberg Respondent Judges: Fichaud, Bryson and Bourgeois, JJ.A. Appeal Heard: May 21, 2015, in Halifax, Nova Scotia Held: Appeal dismissed with costs per reasons for judgment of Bryson, J.A.; Fichaud and Bourgeois, JJ.A. concurring Counsel: G. Bernard Conway, for the appellant Robert Stewart, Q.C. for the respondent Reasons for judgment: Style of Cause: [1] On its own motion, this Court has amended the style of cause. The Court has a broad authority to ensure that proper parties are before it, (R. v. Richards, 2015 NSCA 40, citing Rule 35; Rule 90.02; 90.16 “parties”). [2] Mrs. Wittenberg’s “Estate” is named as Respondent. Absent statutory authority, an estate is not a legal person and cannot sue or be sued. It is necessary to name the personal representative: Rule 36.11 and 36.12; Prevost Estate v. Prevost Estate, 2013 NSCA 20 at para. 19. [3] Accordingly, the Court has amended the style of cause to name the executrix as Respondent. Introduction: [4] Gerda Theodora Wittenberg and her husband, Gerrit Jan Wittenberg, immigrated to Canada from Holland in 1952. They came to Nova Scotia from Ontario and operated a successful farm at Middle Dyke Road, Kings County. They had no children of their own, but adopted two - the Appellant, Richard Wittenberg and the Respondent executrix, Linda Cashen. [5] Mr. Wittenberg died in 1997. Thereafter, Richard Wittenberg assisted his mother with both financial and personal affairs. In May of 2007 Mrs. Wittenberg and Richard had a falling out. She accused him of taking her mail. In his own words, he “lost it” and flipped over a table on which his mother was doing a puzzle, and left. He later told Linda Cashen, “I wash my hands of her. She’s all yours now.” [6] In August of 2008 Mrs. Wittenberg executed a new will which removed Richard as a beneficiary. She was then 89 years old. She died on February 14, 2012. [7] Richard Wittenberg then brought proceedings to set aside his mother’s will, alleging lack of testamentary capacity and undue influence. [8] The Honourable Justice Glen McDougall dismissed Mr. Wittenberg’s application, finding that Gerda Wittenberg had testamentary capacity and was not unduly influenced to make her 2008 will (2014 NSSC 301). [9] Mr. Wittenberg now appeals, repeating his claims that his mother lacked testamentary capacity and was unduly influenced to make her will. Standard of Review and Legal Principles: [10] Capacity to make a will is an issue of fact, (Perera v. Perera, [1901] A.C. (P.C.) 354 at 355, applied in Re Fergusson’s Will (1981), 43 N.S.R. (2d) 89 (C.A.), Morash v. Morash Estate, 1997 NSCA 124, and Re Keddy Estate, 2003 NSCA 55). Providing the application judge correctly identified and applied the legal principles involved, a finding of testamentary capacity cannot be overturned absent palpable and overriding factual error (Keddy, Morash). Similarly, undue influence is a question of fact, attracting that standard of review: Re Marsh Estate, 104 N.S.R. (2d) 266 (C.A.). [11] The burden of proving a will rests with those who propound it. However, they are assisted by a presumption of knowledge and approval as well as of capacity where the will has been shown to be duly executed. In this case, Mr. Wittenberg has also alleged suspicious circumstances in the making of his mother’s will. If there are facts that may support this allegation the presumption is spent, and the propounders of the will must establish that the testatrix knew and approved of the contents of the will. Similarly, if those circumstances relate to mental capacity, the propounder must establish testamentary capacity on the civil standard of a balance of probabilities. [12] In Vout v. Hay, [1995] 2 S.C.R. 876, [1995] S.C.J. No. 58, Justice Sopinka speaking for the court set out the interplay between testamentary capacity, suspicious circumstances and undue influence: [25] With respect to the second problem, although Barry v. Butlin and numerous other cases dealt with circumstances in which the procurer of the will obtained a benefit, it has been determined that the dictum in Barry v. Butlin extends to any "well-grounded suspicion" (per Davey L.J. in Tyrrell v. Painton, [1894] P. 151, at pp. 159-60). This was reaffirmed in this Court by Ritchie J. in Re Martin, supra. The suspicious circumstances may be raised by (1) circumstances surrounding the preparation of the will, (2) circumstances tending to call into question the capacity of the testator, or (3) circumstances tending to show that the free will of the testator was overborne by acts of coercion or fraud. Since the suspicious circumstances may relate to various issues, in order to properly assess what effect the obligation to dispel the suspicion has on the burden of proof, it is appropriate to ask the question "suspicion of what?" See Wright, supra, and Macdonell, Sheard and Hull on Probate Practice (3rd ed. 1981), at p. 33. [26] Suspicious circumstances in any of the three categories to which I refer above will affect the burden of proof with respect to knowledge and approval. The burden with respect to testamentary capacity will be affected as well if the circumstances reflect on the mental capacity of the testator to make a will. Although the propounder of the will has the legal burden with respect to due execution, knowledge and approval, and testamentary capacity, the propounder is aided by a rebuttable presumption. Upon proof that the will was duly executed with the requisite formalities, after having been read over to or by a testator who appeared to understand it, it will generally be presumed that the testator knew and approved of the contents and had the necessary testamentary capacity. [27] Where suspicious circumstances are present, then the presumption is spent and the propounder of the will reassumes the legal burden of proving knowledge and approval. In addition, if the suspicious circumstances relate to mental capacity, the propounder of the will reassumes the legal burden of establishing testamentary capacity. Both of these issues must be proved in accordance with the civil standard. There is nothing mysterious about the role of suspicious circumstances in this respect. The presumption simply casts an evidentiary burden on those attacking the will. This burden can be satisfied by adducing or pointing to some evidence which, if accepted, would tend to negative knowledge and approval or testamentary capacity. In this event, the legal burden reverts to the propounder. [13] Suspicious circumstances may relate to knowledge and approval of the will, testamentary capacity and to undue influence. With respect to capacity, the burden of proof remains with those propounding the will; with respect to allegations of undue influence or fraud, the burden of proof rests with those alleging this. To recapitulate Vout, suspicious circumstances may be raised by: (a) Circumstances surrounding the preparation of the will; (b) Circumstances tending to call into question the capacity of the testator; or (c) Circumstances tending to show that the free will of the testator was overborne by acts of coercion or fraud. [14] When suspicious circumstances are present: (a) The civil standard of proof on a balance of probabilities applies; however that evidence must be scrutinized in accordance with the gravity of the suspicion; (b) After overcoming the initial burden that the formalities have been complied with and the testator has approved the contents of the will, the propounder of the will reassumes the legal burden of establishing testamentary capacity; (c) The burden on those alleging the presence of suspicious circumstances can be satisfied by adducing or pointing to some evidence which, if accepted, would tend to negative knowledge and approval or testamentary capacity. (d) The burden of proof on those alleging undue influence and/or fraud remains with them throughout. [15] Mr. Wittenberg concedes that the application judge identified the correct legal principles, but he claims the judge failed to “correctly apply them to the facts of the case and failed to conduct the factual analysis required.” Mr. Wittenberg also alleges that the judge made several “palpable and overriding errors of fact”. [16] Mr. Wittenberg asserts three errors by the application judge regarding his mother’s capacity. First, he says that there was no evidence demonstrating that Mrs. Wittenberg understood the nature of making a will and its consequences. Second, he claims that there was no evidence that Mrs. Wittenberg understood the extent of the property she was disposing of. Third, he suggests that Mrs. Wittenberg was suffering from a mental condition that might have affected her testamentary capacity. In advancing these arguments, Mr. Wittenberg attacks the judge’s analysis of the evidence. For this reason, it is useful to recall the limited role of this Court in reviewing the findings of fact by the application judge. [17] In MacDuff v. 3209292 Nova Scotia Ltd., 2013 NSCA 31, that limited role was described: [7] An appeal is not an opportunity for an appellant to retry the case. Our ability to intervene and change the decision of a trial judge is very limited. As Justice Thomas A. Cromwell said in Children’s Aid Society of Cape Breton-Victoria v. A.M., 2005 NSCA 58: [26] This is an appeal. It is not a retrial on the written record or a chance to second guess the judge's exercise of discretion. The appellate court is not, therefore, to act on the basis of its own fresh assessment of the evidence or to substitute its own exercise of discretion for that of the judge at first instance. This Court is to intervene only if the trial judge erred in legal principle or made a palpable and overriding error in finding the facts. The advantages of the trial judge in appreciating the nuances of the evidence and in weighing the many dimensions of the relevant statutory considerations mean that his decision deserves considerable appellate deference except in the presence of clear and material error: [citations omitted]. [Emphasis added in original] [8] The infelicitous expression “palpable and overriding error” simply means that any factual error must be clear and material to the factual conclusion which is challenged. The Ontario Court of Appeal put it this way in Waxman v. Waxman (2004), 186 O.A.C. 201: [296] The “palpable and overriding” standard addresses both the nature of the factual error and its impact on the result. A “palpable” error is one that is obvious, plain to see or clear: Housen at 246. Examples of “palpable” factual errors include findings made in the complete absence of evidence, findings made in conflict with accepted evidence, findings based on a misapprehension of evidence and findings of fact drawn from primary facts that are the result of speculation rather than inference. [297] An “overriding” error is an error that is sufficiently significant to vitiate the challenged finding of fact. Where the challenged finding of fact is based on a constellation of findings, the conclusion that one or more of those findings is founded on a “palpable” error does not automatically mean that the error is also “overriding”. The appellant must demonstrate that the error goes to the root of the challenged finding of fact such that the fact cannot safely stand in the face of that error: Schwartz v. Canada, [1996] 1 S.C.R. 254 at 281. [9] Waxman has been endorsed by our court: Mason v. Partridge, 2005 NSCA 144 at ¶ 16, and Flynn v. Halifax (Regional Municipality), 2005 NSCA 81 at ¶ 14; also see: Sable Mary Seismic Inc. v. Geophysical Services Inc., 2012 NSCA 33 at ¶ 59. Facts: [18] In the early 90’s, Mr. and Mrs. Wittenberg sold their home and poultry farm to their son, Richard, for $300,000. There was some suggestion that the purchase price was less than market value. The evidence was that this was Mrs. Wittenberg’s belief. She thought it was worth $750,000. After selling the farm, Mr. and Mrs. Wittenberg built a new house on a small portion of their farmlands, a few hundred yards from the family home, at 1105 Middle Dyke Road. [19] Richard Wittenberg and his wife worked hard and successfully expanded their farming business. Mrs. Wittenberg described her son as a “millionaire”. Linda Cashen was not quite so fortunate. Her net worth was substantially less than her brother’s. Mrs. Wittenberg was aware of this disparity in the wealth of her children. [20] While he was still assisting his mother with her financial affairs, Richard Wittenberg persuaded her to add his name and his sister’s name to investments held at ScotiaMcLeod. To whom these investments now belong became an issue between the parties, and is the subject of separate legal proceedings. [21] Mrs. Wittenberg also owned various insurance policies which provided that her children and their families would benefit from these on her death. Richard’s three children are entitled to $153,000. Richard also received a 30 percent interest in GICs worth $29,359.50 to him. Linda received insurance of $137,330 and $35,902 from a Registered Retirement Income Fund, as well as $68,905.50 from two non-registered GICs worth $97,856. [22] Linda’s daughter, Melanie, received $35,902 from the RRIF. [23] Mrs. Wittenberg had also been generous with her children and their families during her lifetime, as the judge found: [56] In actuality, Mrs. Wittenberg and her Late husband were generous in helping both their son and their daughter. Mrs. Wittenberg was also very supportive of her granddaughter, Melanie. She covered most of the cost of Melanie’s post-secondary education. She also bought a motor vehicle for her so she could commute back and forth to Halifax to attend classes at Dalhousie University and later at Acadia University in Wolfville. [24] In May of 2007, Richard Wittenberg and his mother had a falling out, as previously described. Mrs. Wittenberg was unnerved by her son’s violent reaction to her accusation that he took her mail. She moved into Linda Cashen’s home for about a month. At about the same time, she purchased a new home, but appears to have had second thoughts and later sold it, without moving in. This is addressed further below regarding Mrs. Wittenberg’s testamentary capacity. [25] In July of 2007, Mrs. Wittenberg met with her family lawyer, Ned Chase, Q.C., who prepared a Power of Attorney appointing Linda Cashen as her attorney. Owing to Richard Wittenberg’s statement to his sister that he was “washing his hands” of his mother, nothing sinister should be read into this development. [26] In November of 2007, Mrs. Wittenberg moved into Arbordale, a home for assisted living, in which Mrs. Wittenberg maintained a private apartment. In 2009 she moved to a home providing greater personal care. [27] In the spring of 2008 Mrs. Wittenberg listed her home at 1105 Middle Dyke Road for sale with a local realtor who was also a family friend. When Richard Wittenberg learned of this, he contacted the realtor to point out several problems with his mother’s property including alleged difficulties with well water, the sewage system and water drainage. He also advised the realtor that the sale of the property to someone outside the family violated his late father’s wish to keep the property as part of the farm. He offered that this would be the perfect home for his son, Evan. [28] Thereafter, Richard Wittenberg and his wife visited Mrs. Wittenberg at her home. He presented her with a note handwritten by him, recording that the property was listed for $189,900 and that he thought it had a worth of $160,000. The note went on to say, “Mom is willing to sell the house to Rick for $50,000.” Mrs. Wittenberg signed the note, “Sold to Rick for $50,000.” The application judge characterized this as follows: [33] Efforts to enforce this patently unconscionable deal were thwarted after Linda and Melanie Cashen persuaded Gerda Wittenberg to seek legal advice from Trinda Ernst, Q.C. [29] Mrs. Wittenberg’s home was eventually sold to a third party for $163,000. [30] Mrs. Wittenberg executed a new will on August 22, 2008, removing her son, Richard, as a beneficiary. At the same time, Mrs. Wittenberg granted a second power of attorney to her daughter, Linda Cashen, and her granddaughter, Melanie Cashen. She was also given authority to make decisions with respect to Mrs. Wittenberg’s health care. Melanie Cashen was appointed as a substitute decision maker. [31] Mrs. Wittenberg’s new will divided the residue of her estate amongst her family as follows: Gift to Children (d) To distribute the residue of my estate as follows: (i) 70% to my daughter, LINDA HELEN CASHEN, if she survives me; provided, however, if she predeceases me, to add this share of my estate to the gift in paragraph (ii); (ii) 15% to my granddaughter, MELANIE DAWN CASHEN, if she survives me; provided, however, if she predeceases me, to deliver this share of my estate to her children who survive me and attain the age of majority; further provided, however, that if she has no children who survive and attain the age of majority, to add this share of my estate to the gift in paragraph (i); (iii) 5% to my grandson, EVAN RICHARD WITTENBERG, if he survives me; provided, however, if he predeceases me, to add this share of my estate to the gifts in paragraphs (iv) and (v), allocating it in proportion to the original gifts; (iv) 5% to my granddaughter, TARA GAIL WITTENBERG, if she survives me; provided, however, if she predeceases me, to add this share of my estate to the gifts in paragraphs (iii) and (v), allocating it in proportion to the original gifts; (v) 5% to my granddaughter, ASHLEY MARIE WITTENBERG, if she survives me; provided, however, if she predeceases me, to add this share of my estate to the gifts in paragraphs (iii) and (iv), allocating it in proportion to the original gifts. [32] Mrs. Wittenberg explained in her will why Richard would not be inheriting: 8. I DECLARE that I have made no provision in my Will for my son, Richard John Wittenberg, because my late spouse and I have already provided for him during our lifetimes. [33] The new power of attorney was virtually identical to the power of attorney prepared in 2007 by Mr. Chase except that it added this clause about jointly held property: 8. Joint Bank Accounts. I declare that money in a joint bank account with another individual, or any investments or real property registered jointly in our names are not intended to be transferred to that individual by right of survivorship and are held by that individual on a resulting trust for my estate. Suspicious Circumstances: [34] Richard Wittenberg alleged suspicious circumstances relating to the making of the 2008 will. The application judge was satisfied that Mr. Wittenberg had established suspicious circumstances: [67] I am satisfied that the applicant has met this evidentiary burden to show that suspicious circumstances are present. Gerda Wittenberg’s decision to remove her son from inheriting anything under her Last Will and Testament as well as the circumstances that bring into question her mental capacity at the time she gave instructions for her Will and when she subsequently executed it raise at least some suspicions. Also her decision to purchase the property at Oakdene Avenue in Kentville and then immediately putting it back on the market without taking occupancy could raise a suspicion. [35] The judge also expressed concern because Mrs. Wittenberg experienced a fall and head injury, prior to executing her 2008 will. [36] The judge does not say what Vout category or categories of suspicious circumstances apply to the facts in this case. Nor does he describe what “circumstances” brought into question her “mental capacity” when she gave instructions to Ms. Ernst, or later when she executed her will. It is important that a finding of “suspicious circumstances” be contextually derived. Disinheriting a child may be suspicious in some cases, but not others - for example where substantial property was gifted to a child during the testatrix’s lifetime. The question is not whether a suspicion “could arise”, but whether it does arise. In this respect, I endorse the British Columbia Court of Appeal’s observation in Clark v. Nash, [1989] B.C.J. No. 1474 (C.A.): It is important to recognize that the "suspicious circumstances" referred to in that passage, and in other authorities, are not circumstances that create a general miasma of suspicion that something unsavoury may have occurred, but rather circumstances which create a specific and focussed suspicion that the testator may not have known and approved of the contents of the will. Suspicious circumstances may also apply to testamentary capacity: Vout, supra. [37] In any event, no notice of contention was filed respecting the judge’s findings of suspicious circumstances. The judge properly acknowledged that the presumption in favour of knowledge and approval of the contents of the will, as well as capacity, no longer favoured the propounders of the will. Knowledge, approval and capacity had to be established on a balance of probabilities. Mrs. Wittenberg’s Testamentary Capacity: [38] When Mrs. Wittenberg wanted to change her will in 2008 she consulted Mr. Chase. He referred her to Ms. Ernst as he felt he had a conflict arising from other work that his firm performed for Richard Wittenberg. In the application judge’s words: [38] Not long after this, Gerda Wittenberg once again consulted her lawyer, Mr. Chase, to have a new Will drafted. When Mr. Chase learned that Mrs. Wittenberg wished to remove her son, Richard, from the Will he decided that it would be best to refer her to another lawyer. Based on the notes made by Trinda Ernst, Q.C. of the telephone conversation she had with Mr. Chase on May 13, 2008, Mr. Chase’s concern was that another one of his partners had done legal work for Richard Wittenberg. The wise and prudent thing to do was refer Mrs. Wittenberg to a lawyer in another firm. Although Mr. Chase suspected that Mrs. Wittenberg might be showing some signs of dementia, he expressed his opinion that she was competent and understood what she had done while he was her lawyer and, furthermore, she understood what she now wanted to have done. [39] In Re Coleman Estate, 2008 NSSC 396, Justice Warner nicely summarized the legal approach to testamentary capacity: [37] Testamentary capacity was legally defined by Chief Justice Cockburn of the English Queen’s Bench division in Banks v. Goodfellow. He wrote that determination of testamentary capacity involves three inquiries: (1) whether the testator understood the nature of the act and its effects; (2) whether the testator understood the extent of the property he/she is disposing of; (3) whether the testator was able to comprehend and appreciate the claims to which he/she ought to give effect; and, in respect of (3), whether any disorder of the mind poisoned his or her affections, perverted his or her sense of right, or perverted the exercise of his or her natural faculties - that no insane delusion influenced his or her will to dispose or brought about a disposal which, if sound of mind, would not have occurred. [40] Banks has been so frequently cited by Canadian courts that its authority cannot be challenged, and the parties do not do so. In England, its 19th c. credentials have been recently reaffirmed by the Court of Appeal: Sharp v. Adam, [2006] EWCA Civ 449. [41] Mr. Wittenberg says there is “no evidence” that his mother understood the consequences of making a will. [42] In concluding that Mrs. Wittenberg understood the nature and consequence of making a will, the application judge relied on evidence from psychiatrist, Dr. Brian Garvey and solicitor, Trinda Ernst, Q.C. Ironically, it was Mr. Wittenberg who hired Dr. Garvey without consulting anyone else about doing so. [43] Dr. Garvey met with Mrs. Wittenberg at Arbordale on June 10, 2008 for about an hour. He administered the Mini Mental State Exam (MMSE) on which Mrs. Wittenberg scored 25 out of 30. Dr. Garvey commented that below 23, “one begins to worry”. He also questioned Mrs. Wittenberg to explore whether she might be delusional. He inquired about her relationship with her children, and determined that she had the capacity to make a will. [44] In his June 13, 2008 written report Dr. Garvey concluded: Mrs. Wittenberg is a pleasant, cooperative lady of eighty nine years in full possession of her faculties other than the normal age related cognitive decline that may be expected at this age. She does not suffer from Alzheimer’s or any other form of dementia and physically she is reasonably fit for her age. She has never suffered from a psychiatric disorder and does not do so now. She is neither depressed nor anxious, neither deluded nor hallucinated and was reasonable and insightful in her comments. … While not willing to put a hard figure on the value of her estate, she is sufficiently aware of the need to make provisions of her will so that her estate is delivered in accordance with her wishes. She was absolutely clear that while a fair sharing between the two children would seem reasonable she saw her daughter Linda’s needs as being greater and was somewhat critical of her son Richard’s attitudes. At the end of the interview I was entirely satisfied that she was able to manage her own affairs and that she was happy with the care that she was given at the Arbordale Nursing Home and that she was of a sound disposing mind and capable of executing a valid last will and testament. Indeed I encouraged her to do so as soon as possible. [45] Dr. Garvey commented that Mrs. Wittenberg was aware of the power of attorney she had signed and, “…she knew she had not made a will.” In fact, Mrs. Wittenberg had executed wills in 1998 and 2002. Mr. Wittenberg argues that this evidence suggests a lack of testamentary capacity. [46] Certainly, Dr. Garvey’s evidence about what Mrs. Wittenberg told him concerning whether or not she had a will had to be taken into account. But exactly what Mrs. Wittenberg meant could not be explored. For example, did she think she had no current will reflecting her present intention or did she simply forget she had an apparently valid 2002 will? In any event, assuming a lapse in memory, this fact alone would not overcome other credible evidence of capacity. It did not concern Dr. Garvey when brought to his attention. That the application judge did not remark on it does not undo his finding of capacity, in light of all the evidence. [47] Mr. Wittenberg also questions Dr. Garvey’s opinion because he was unaware of Mrs. Wittenberg’s post-examination fall and subsequent operation to install a pacemaker. Dr. Garvey acknowledged that a concussion could have a serious effect on an elderly person’s capacity to make a will. But no diagnosis of concussion was ever made, and this ignores the later evidence of capacity from Ms. Ernst. The application judge was aware of this evidence. It did not persuade him of incapacity: [50] While there [at the hospital after the fall], Mrs. Wittenberg suffered several fainting episodes. She had to undergo emergency surgery to have a heart pacemaker inserted. There was no evidence offered that she had suffered a concussion nor was there any evidence that she had been treated for concussion-like symptoms. Any suggestions that her cognitive abilities had been compromised as a result of the fall is sheer speculation. I am not enticed to go down that road. [48] During oral argument, Mr. Wittenberg submitted that Dr. Garvey was left with the impression that Mr. Wittenberg would inherit something - suggesting that his disinheritance demonstrated a lack of capacity. But this disregards the substantial insurance and other funds received by Richard Wittenberg and his children, and Linda Cashen after their mother died, of which they were designated beneficiaries. It also ignores the many references in Dr. Garvey’s evidence indicating that Linda Cashen was in greater need than her brother. For example, Dr. Garvey notes: “Rich wants everything, not so good, he wants to be richer”, and “I like to give both the same, but Linda works in New Minas and has nothing. She won’t fight for it, she needs more, and Rich has so much already”. Similar sentiments appear in Ms. Ernst’s notes which recorded: “I won’t give him (Rick) anything. Rick has enough”; “Linda gets more than Rick because he got so much because he was a farmer”; and finally, “Rick got his portion when my husband was alive”. [49] Mr. Wittenberg did not question that he was much better off financially than his sister. Mrs. Wittenberg’s comments to Dr. Garvey had a rational foundation. [50] Mr. Wittenberg, citing Coleman, argues that expert evidence may not be preferred to lay evidence. It is quite correct that lay witnesses with greater knowledge of a testatrix may well offer more persuasive evidence of capacity or incapacity than an expert. But Coleman is not this case. In Coleman there was extensive lay and expert evidence confirming the testatrix’s lack of capacity. [51] In contrast, no one but Mr. Wittenberg questioned his mother’s capacity to make a will. Coleman is clearly distinguishable. [52] Mr. Wittenberg places some emphasis on Mrs. Wittenberg’s June 2007 agreement to purchase a house at 127 Oakdene Avenue in Kentville as evidence of a lack of capacity. This property was across the street from the church which she regularly attended and down the street from her daughter, Linda Cashen, where she had briefly retreated after her son’s outburst in the previous month. Mrs. Wittenberg changed her mind about purchasing the home and relisted it for sale shortly thereafter. It was sold on her behalf by Linda Cashen and Melanie Cashen who used the power of attorney to execute the necessary documents. This was the power of attorney executed by Mrs. Wittenberg about a month after her falling out with her son, Richard, and had been prepared by her long term lawyer, Ned Chase, Q.C. The application judge found that executing the documents for the sale of the Oakdene Avenue property was the only occasion on which Linda and Melanie Cashen used this power of attorney. The Oakdene Avenue property was eventually sold in April 2008. [53] While it may have been impetuous to react so dramatically to the rupture with her son, it was hardly irrational for Mrs. Wittenberg to buy a house close to her daughter and her church. Why should she wish to continue to live adjacent to the son from whom she was now estranged? She moved to Arbordale some months later. [54] When Mrs. Wittenberg first met with Ms. Ernst, she was given a questionnaire to complete which addressed such things as family members, property and testamentary wishes. Mrs. Wittenberg did not fully complete the questionnaire. [55] During oral argument, Mr. Wittenberg pressed the argument that Mrs. Wittenberg’s failure to complete the questionnaire indicated a lack of capacity. This did not concern Ms. Ernst or the application judge: [51] Ms. Ernst, according to her testimony as supported by her time records which were also tendered in evidence, first met with Gerda Wittenberg on June 16, 2008. Prior to the first meeting, Ms. Ernst had prepared a series of questions designed to elicit information about Mrs. Wittenberg’s Estate and to gather other relevant information needed to facilitate discussions and to begin the process of ascertaining what her wishes might be prior to drafting a Will. A great deal of effort was devoted to challenging some of the information provided by Mrs. Wittenberg in answer to some of the questions contained in this questionnaire. In some instances, no information, whatsoever, was provided by her. This is not necessarily a startling occurrence. Mrs. Wittenberg was, after all, eighty-nine years of age at the time. As Dr. Garvey stated in his report she was “in full possession of her faculties other than the normal age-related cognitive decline that may be expected at this age.” [56] Mr. Wittenberg concludes on this issue by arguing that there was no “meaningful evidence” that his mother understood the nature and effect of making a will. With respect, there was a great deal of evidence that she did. [57] Trinda Ernst met with Mrs. Wittenberg on a number of occasions over a period of approximately six months to deal with her new will and power of attorney, as well as to thwart Mr. Wittenberg’s efforts to buy her house for $50,000.00. This naturally gave Ms. Ernst an opportunity to see and observe Mrs. Wittenberg in different circumstances both before and after her assessment by Dr. Garvey and her fall. As the application judge observed: [77] Ms. Ernst is a very experienced and highly regarded legal practitioner. As a former president of the Canadian Bar Association, Ms. Ernst is well known and well respected in this Province and throughout Canada. [78] Ms. Ernst testified that approximately 30 to 35 percent of her practice involves Wills and Probate. Ms. Ernst, based on her direct involvement with Gerda Wittenberg, was satisfied that she had the requisite mental capacity to give instructions for a Will. She stated that if she had any concerns about her client’s testamentary capacity she would have noted it and done a memo to file. [58] When Ms. Ernst first met Mrs. Wittenberg in May 2008, in connection with the attempt of Richard Wittenberg to secure her home for $50,000, Ms. Ernst described her as “lucid”. Thereafter, she was satisfied that Mrs. Wittenberg understood Ms. Ernst’s advice and knew what she wanted to do. [59] Ms. Ernst met again with Mrs. Wittenberg on June 16, 2008 to take instructions. This post-dated her fall and pacemaker operation. The meeting lasted a little over an hour. Mrs. Wittenberg read over her 1998 will, which essentially divided her estate equally between her children. She gave instructions to Ms. Ernst to take Richard Wittenberg out of her will. [60] Ms. Ernst met again with Mrs. Wittenberg in August of 2008 for approximately an hour-and-a-half. At that time, Ms. Ernst particularly reviewed the residue clause and made some minor revisions to it. All that changed was the adding of a gift over. Both her new will and power of attorney were reviewed by Ms. Ernst with Mrs. Wittenberg. She read them over and signed them. Ms. Ernst was satisfied that she had the capacity to give instructions and execute her will. She did so freely. Ms. Ernst saw her a year later on other business and found her much the same. [61] No one but Richard Wittenberg questioned Mrs. Wittenberg’s testamentary capacity. All he could offer was that his mother sometimes “repeated herself”. He gave no examples. The judge was satisfied why Richard Wittenberg was left out of the will. In addition to support during his lifetime, mentioned in the will, the judge noted: [54] …An entry in the notes made by Ms. Ernst at the time she met with Gerda Wittenberg indicated that Mrs. Wittenberg had two children and that they should receive the same. Later in the session Mrs. Wittenberg told Ms. Ernst that she wished to leave more for her daughter, Linda, than her son, Rick, because Richard had been taken care of when he got the farm at a price much less than what it was worth and also because Rick had lied to her. She also indicated that Richard had enough and Linda needed it more. This is similar to what Mrs. Wittenberg had said to Dr. Garvey just a week or so before she met with Ms. Ernst. […] [74] Despite the fall experienced by Mrs. Wittenberg a short time after Dr. Garvey’s assessment, the sentiment expressed to him is entirely consistent with what Ms. Ernst’s notes of her meeting with Mrs. Wittenberg indicate. The intervening fall does not appear to have had any affect or influence on her stated wish to benefit the child who needed it more. Her decision was likely influenced not only by her son’s superior financial status relative to his sister’s but also because of his angry outburst towards her and his decision to, as he put it, “wash his hands of her.” Mental Disorder: [62] This is how Mr. Wittenberg describes this issue: There is no evidence that Mrs. Wittenberg did not suffer from a disorder of the mind that brought upon a disposition that she would not have made if she were of sound mind. [63] With respect, the propounders of the will do not have to prove a negative. There was no evidence that Mrs. Wittenberg suffered from a mental disorder. The best Mr. Wittenberg can do is point to notes of Ms. Ernst from her conversation with Mr. Chase that Mr. Chase thought she was “probably getting dementia somewhat”. Mr. Chase was not called, so this hearsay evidence was neither confirmed or explained. As previously observed, Mr. Wittenberg’s only evidence about his mother’s mental capacity was that she repeated herself. If that qualifies for lack of capacity, few valid wills would be made. [64] For her part, Ms. Ernst testified: And that’s all this is. It’s not a -- she may not -- whether she had or didn’t have testamentary capacity it’s my job just to record as much information as I can with the time I have and then it’s up to the court to decide if the person has testamentary capacity. So I just try to record things and that’s why we’re here today. So she answered it as she saw fit. […] It’s a question of trying to give effect to the client’s wishes as I believe them to be. And so I did what the client told me she wanted to do and let the chips fall where they may. If she had been assessed and then that would be an additional piece of evidence as to her capacity. But I was satisfied that despite the fact that she was an elderly person and even 89 isn’t that old, but I mean she was physically mobile. She -- I knew she was Dutch but her command of the English language was quite superior I felt, better than some people who don’t know any other languages. She understood what I was saying. Was she exhibiting signs of you know memory loss or you know not being able to remember things, absolutely. I’m not disagreeing with you, she had blanks. [Emphasis added] [65] Mr. Wittenberg takes comfort from the expression: “And so I did what the client told me she wanted to do and let the chips fall where they may…” and “…it’s my job to record as much information as I can…and then it’s up to the court to decide if the person had testamentary capacity”. [66] But it is clear from her evidence that Ms. Ernst thought Mrs. Wittenberg had capacity. They discussed her family, her concerns about Richard and the economic disparity between Richard and Linda, and her wishes for her will. Ms. Ernst was satisfied that Mrs. Wittenberg understood her. It is obvious that she thought Mrs. Wittenberg was rational and capable of giving clear instructions about disposing of her estate. This evidence is corroborated by Dr. Garvey’s opinion. Knowledge of Property: [67] This is the second of the Banks criteria. Mr. Wittenberg says that Ms. Ernst did not fully ascertain this, and so there was no evidence that Mrs. Wittenberg appreciated the extent of her property. [68] Neither Dr. Garvey nor Ms. Ernst obtained a complete account of Mrs. Wittenberg’s assets. Ms. Ernst was aware that she had investments at ScotiaMcLeod and a house. Ms. Ernst was also aware that the ScotiaMcLeod accounts had been made joint with Linda Cashen and Richard Wittenberg. [69] It is important to recall that the Banks criteria are to assist in determining whether a testator has capacity to make a will. The question is not whether a testatrix has a detailed knowledge of her estate, but whether she possesses the ability to have such knowledge. It is that ability which is relevant. In Minns v. Foster, [2002] All ER (D) 225 (Ch. Div) the court described this aspect of the test: 115. Finally, I consider that Mr. Colin-Smith had the capacity to understand the nature and extent of his property. It is in my judgment worth remembering that the question is not whether a person actually knows the nature and extent of his estate, but whether he has the mental capacity to be able to do so. No will is rendered invalid merely because a testator with the requisite capacity is mistaken about, or fails properly to ascertain, full details of his property. Mr. Colin-Smith's property consisted broadly of three classes of assets; his house, its valuable contents, and his portfolio of investments. He was surrounded by the first and second of those classes and he depended for his income upon the third. It is in my judgment inconceivable that Mr. Colin-Smith was unaware that he owned a portfolio of investments of substantial value. He had a stockbroker who sent him periodic reports, and Mr. Stancomb was on hand to remind him to read them, or to summarise them to him, as and when required. It is true that there is evidence that Mr. Colin-Smith may, before signing modest bills, have asked Mr. Stancomb "can I afford it?" Taken literally, it might cast a doubt on his appreciation of the value of his investments, but I very much doubt whether the comment was made seriously or that, if it was, it was a reference to anything other than the then state of his bank balance, rather than to the availability of assets more generally. Furthermore, his enquiries as to the rate of inheritance tax, and his active consideration of the precise amount which it would be appropriate for him to leave to his chosen charities seems to me to betoken a man fully conscious of the general nature and extent of his property, even if not necessarily aware of its precise value at any particular moment. [Emphasis added] This case has not been cited in Canada, but was approved by the English Court of Appeal in Sharp, supra. [70] Similarly, Rand J. for the majority in Leger v. Poirier, [1944] SCR 152, describes a “disposing mind and memory” at p. 161 as: …one able to comprehend, of its own initiative and volition, the essen­tial elements of will making, property, objects, just claims to con­sideration, revocation of existing dispositions, and the like; this has been recognized in many cases… [Emphasis added] [71] The capacity to comprehend the extent of one’s property is also remarked on by Davies J. in Skinner v. Farquharson (1902), 32 SCR 58 at p. 85, quoting Chief Justice Goodfellow in Banks, [L.R. 5 Q.R. 549 at p. 569]. [72] Canadian cases that have considered this criterion have not required detailed knowledge of a testator’s assets. For example, in Laszlo v. Lawton, 2013 BCSC 305: [249] The principles to be taken from the authorities are that testators are not expected to know the exact composition of their estate assets and their value with the metronomic precision of an accountant. An appreciation of the general nature of the estate assets and an understanding of their extent, meaning their approximate value or the approximate value of the estate at large, expressed either in terms of dollars or quantitatively (eg. “a lot of money” or “a substantial fortune”), will suffice. To similar effect are Palahnuk v. Palahnuk Estate, [2006] O.J. No. 5304 (S.C.J.), and Moore v. Drummond, 2012 B.C.S.C. 1702. [73] Mrs. Wittenberg knew that she had a home and a bank account. She also had investments with ScotiaMcLeod, made joint - at Richard Wittenberg’s insistence - with Richard and Linda. Whether these investments were “hers” is an open question, presently disputed by Richard Wittenberg. [74] Mrs. Wittenberg certainly had the ability to understand what property she had. She was clear that she wanted most of it to go to Linda to redress the imbalance between Linda and Richard. That intention required some understanding of the net worth of both Linda and Richard, as well as her own. Undue Influence: [75] The burden of proving undue influence rests with those who assert it. The rule is otherwise in an inter vivos transaction, (Geffen v. Goodman Estate, [1991] 2 S.C.R. 353). [76] The classic statement of undue influence was expressed by Sir James Hannen in Wingrove v. Wingrove (1885), 11 P.D. 81 at 82: To be undue influence in the eye of the law there must be - to sum it up in a word - coercion…it is only when the will of the person who becomes a testator becomes coerced into doing that which he or she doesn’t desire to do that it is undue influence. [77] In Marsh Estate, 99 N.S.R. (2d) 221, aff’d 104 N.S.R. (2d) 266, Justice Bateman quoted with approval from the third edition of Feeney, The Canadian Law of Wills, Volume 1 at page 42: "The burden of proof of undue influence is on the attackers of the will to prove that the mind of the testator was overborne by pressure exerted by another person. It is not enough to show mere persuasion; the influence exerted on the testator must amount to coercion to be undue influence. Coercion has been defined to mean that the testator has been put in such a condition of mind that if he could speak his wishes to the last he would say. 'This is not my wish but I must do it.'" [Emphasis added] [78] Undue influence is a serious allegation and must be proven with positive evidence. The opportunity to exercise influence is not proof Mrs. Wittenberg was influenced: Maddess v. Racz, 2008 BCSC 1550, aff’d 2009 BCCA 539, leave to appeal to SCC ref’d, 2010 S.C.C.A. 72. [79] Likewise, mere opinion - even of a solicitor - that a will was obtained by undue influence is not sufficient unless there is evidence of that influence: Re Nickerson Estate (1996), 155 N.S.R. (2d) 289. It is not improper for a potential beneficiary to discuss the will with a testator and urge favourable consideration for herself. Unless the influence is coercive, it is not undue. [80] Again, Mr. Wittenberg does not take issue with the judge’s statement of the law: rather he complains that the judge failed to apply it. What does Mr. Wittenberg offer by way of example? [81] First, Mr. Wittenberg says that between 2007 and 2012 a total of $194,754 was withdrawn from Mrs. Wittenberg’s accounts “without explanation”. In fact, both Linda Cashen and her daughter, Melanie, were questioned about the use of Mrs. Wittenberg’s bank account. There was evidence that Mrs. Wittenberg assisted Melanie Cashen with university and other expenses until 2009. Mrs. Wittenberg generally signed the cheques. There was evidence of money thereafter being paid to Linda Cashen or Melanie for their personal benefit. But the application judge did not find that this was evidence that the 2008 will was the product of any undue influence. Moreover, these questions are subject to a separate accounting action brought by Mr. Wittenberg. [82] Mr. Wittenberg also says that the Cashens discussed the disposition of Mrs. Wittenberg’s assets with Ms. Ernst, including a conference call to consider the sale of Mrs. Wittenberg’s real estate and the use of her power of attorney. Again this isn’t proof of the exercise of undue influence. It is hardly surprising that Mrs. Wittenberg would give powers of attorney to her daughter after Richard abandoned her, or that her daughter would then discuss Mrs. Wittenberg’s affairs with her lawyer. That alone does not establish that influence was exercised by Ms. Cashen upon Mrs. Wittenberg, let alone coercion. [83] Next Mr. Wittenberg refers to the fact that Ms. Ernst’s retainer agreement is “in care of Linda Cashen”. Ms. Ernst acknowledged that Ms. Cashen may have completed the retainer agreement for her mother. As well, the will questionnaire completed by Mrs. Wittenberg seeks permission for Ms. Ernst to discuss legal matters with Linda and Melanie Cashen. It was Ned Chase, Q.C. who referred Mrs. Wittenberg to Ms. Ernst. Linda and Melanie Cashen were the only resources available to Mrs. Wittenberg after Richard walked out in the spring of 2007. It was Richard who told his sister, Linda, “She’s all yours now.” [84] Finally, Richard Wittenberg argues that because the Cashens became the principal beneficiaries of Mrs. Wittenberg’s will, they must have exercised undue influence to thereby benefit. [85] The application judge was aware of all of the forgoing arguments. He was unpersuaded. Indeed, on the evidence it appears he was satisfied that it was Richard who was heavy-handed and self-motivated: [76] Richard Wittenberg’s concern appears to have been motivated more by self-interest than his mother’s well-being. Additionally, suggestions that Linda Cashen orchestrated her mother’s introduction to Trinda Ernst, Q.C. are unfounded. While Linda Cashen was familiar with Ms. Ernst, it was Mr. Edward “Ned” Chase, Q.C. who referred Gerda Wittenberg to Ms. Ernst. Mrs. Wittenberg first went to Mr. Chase to get a new Will. Because of the work he and some other members of his firm had done for Richard Wittenberg, Mr. Chase thought it best to refer his former client to another lawyer in order to avoid a conflict of interest. […] [85] If Linda and Melanie Cashen had wanted to conspire to force their mother/grandmother into signing a Will that she did not wish to sign would they have taken her first to Mr. Chase - a lawyer that knew her and had done work for her in the past? I think not. [86] Furthermore, there is absolutely no evidence that either Linda Cashen or her daughter, Melanie Cashen did anything more than transport Gerda Wittenberg to Mr. Chase’s then to Ms. Ernst’s office. It is uncertain if either of them even went into the office but if either of them had then they were certainly not present when Ms. Ernst met privately with Mrs. Wittenberg to discuss her wishes and to obtain instructions for a new Will, Power of Attorney and a Medical Authorization. [87] Similarly, on the day the Will and other documents were executed by Mrs. Wittenberg, Ms. Ernst first met with her alone to review and explain the contents of the various legal documents before calling her assistant in to act as the second witness to the signature of Gerda Theodora Wittenberg. [88] What little evidence there is falls far short of what would be required to amount to coercion. The applicant has failed to meet his burden of establishing undue influence. The attempt to link Linda and Melanie Cashen to unexplained withdrawals and cheques written on Mrs. Wittenberg’s bank account post May of 2007 is not evidence of undue influence. I have been asked to determine the validity of the Last Will and Testament of the Late Gerda Theodora Wittenberg executed on the 22nd day of August, 2008. I have not been asked to decide if the named executrix remains a proper person to continue in that role. That might be a question for another day if the applicant or any other affected person wishes to challenge her appointment. [Emphasis added] [86] Mr. Wittenberg’s arguments do not describe an error of law by the application judge. Rather, they reflect unhappiness with the judge’s treatment of the evidence. [87] It must also be recalled that it was Richard Wittenberg who tried to buy his mother’s house for far less than it was worth - $50,000 - and it was he who tried to frustrate the sale of his mother’s property by complaining to the real estate agent about problems with the property, saying the sale was contrary to his late father’s wishes, and suggesting it would be a fine house for his son. [88] There is a great deal more evidence in the record that it was Mr. Wittenberg rather than Linda Cashen who was trying to exert influence on his mother. Conclusion on the Merits: [89] This appeal exemplifies dissatisfaction with the application judge’s findings of fact, not his statements of the law or its application. The judge made no palpable and overriding error of fact. I would dismiss the appeal. Costs: [90] Costs of the hearing below had not been awarded at the time of the appeal. A costs decision has since been rendered: 2015 NSSC 218. We are advised it will not be appealed. [91] In Prevost Estate v. Prevost Estate, 2013 NSCA 20, this Court observed: [17] It is often the case that parties in an estate dispute are awarded costs out of the estate. An adverse party may receive party-and-party costs; an executor or trustee will usually receive solicitor-client costs by way of indemnity. One cannot assume judicial generosity in all of these cases. Much will turn on whether or not the contested issue arises from conduct of the deceased. Generally, if the need for resort to the court was caused by the testator, costs will be borne by her estate, (MacDonell, Sheard and Hull Probate Practice, 4th ed. (Scarborough, Ont: Carswell, 1996) pp. 372-381). However, courts are not always so indulgent with respect to costs on appeal (Re: Fleck, (1924) 55 O.L.R. 441 (Ont. C.A.); Re: Stuart, Johnson v. Williams, [1990] All E.R. 80 (C.A.); McDougald Estate v. Gooderham, [2005] 199 O.A.C. 203 at ¶ 89; Patrick v. Telus Communications Inc., 2008 BCCA 246 at ¶ 43; and for a helpful overview: St. Onge Estate v. Breau, 2009 NBCA 36, at ¶ 52-77). Also see: Casavechia v. Noseworthy, 2015 NSCA 56 at para. 62 and following. [92] Section 92 of the Probate Act addresses costs in contested matters: Costs in contested matters 92 (1) In any contested matter, the court may order the costs of and incidental thereto to be paid by the party against whom the decision is given or out of the estate and if such party is a personal representative order that the costs be paid by the personal representative personally or out of the estate of the deceased. (2) An order made pursuant to subsection (1) may be reviewed by the Nova Scotia Court of Appeal or any judge thereof in chambers, upon notice given in the prescribed manner and form by the party aggrieved to the opposite party, and such order may be made thereon as the Court or the judge considers just and proper. (3) An order for the costs of an application may be made personally against a personal representative where the application is made as the result of the personal representative failing to carry out any duty imposed on the personal representative by this Act. (4) An order for costs in an application may be made personally against a personal representative who has made the application where the application is frivolous or vexatious. 2000, c. 31, s. 92. [93] A helpful review of costs in estate litigation can be found in Ian M. Hull’s article, “Costs in Estate Litigation”, (1998) 18 E.T.R. (2d) 218. From the case law he extracts two general principles: In estate litigation, however, the Canadian and English courts have traditionally exercised their discretion by departing from the usual cost rule whereby the unsuccessful party pays the costs of the successful party. Instead, it would seem to be the general practice of the courts in estate litigation is to consider and apply two principles. First, where the difficulty, conflicts or ambiguities which give rise to the litigation are either in whole or in part, the fault of the testatrix or the fault of those parties interested in the residue, the courts have ordered the parties’ costs to be paid out of the estate. Second, there is a public interest in ensuring that wills are valid and that the needs of the deceased’s dependants are properly provided for. Accordingly, as the provisions of a will must be properly interpreted and applied its validity or invalidity determined with some degree of predictability, the courts seem to have relieved the unsuccessful parties to the litigation from paying the costs of the successful party. [Emphasis added] [94] Mr. Hull grounds this statement of competing principles on the 19th century decision of Sir J.P. Wilde in Mitchell v. Gard, (1863), 164 E.R. 1280 at 1281. After stating the principle that litigation caused by the testator or the residuary beneficiary should be borne by the estate, the court went on to say: But if the testator be not in fault, and those benefited by the will are not to blame, to whom is the litigation to be attributed? In the litigation entertained by other Courts, this question is in general easily solved by the presumption that the losing party must indeed be in the wrong, and, if in the wrong, the cause of a needless contest. But other considerations arise in this Court. It is the function of this Court to investigate the execution of a will and the capacity of the maker, and having done so, to ascertain and declare what is the will of the testator. If fair circumstances of doubt or suspicion arise to obscure this question, a judicial inquiry is in a manner forced upon it. Those who are instrumental in bringing about and subserving this inquiry are not wholly in the wrong, even if they do not succeed. And so it comes that this Court has been in the practice on such occasions of deviating from the common rule in other Courts, and of relieving the losing party from costs, if chargeable with no other blame, than that of having failed a suit which was justified by good and sufficient grounds for doubt. There is still a further class of cases. I speak of those in which, beyond the execution of the will and the capacity of the testator, the opposing party takes upon himself to question the conduct or good faith of others and to place on the record pleas of undue influence or fraud. These are affirmative charges; they ought not to be made except upon apparently very sufficient ground. But though they may and do differ largely in the degree of probability or suspicion to be demanded for their justification, it is not easy to say that they differ in nature from pleas denying execution or capacity. Both classes of defence are addressed to the same question, what was the will of the testator, and both are within the scope of the subject entrusted to the vigilance of the Court. Here, also, it seems just and meet, if the circumstances of the case have rendered the inquiry a proper one, that neither party should be condemned in cost. From these considerations, the Court deduces the following rules for its future guidance: first, if the cause of litigation takes its origin in the fault of the testator or those interested in the residue, the costs may properly be paid out of the estate, secondly, if there be sufficient and reasonable ground, looking to the knowledge and means of knowledge of the opposing party, to question either the execution of the will or the capacity of the testator, or to put forward a charge of undue influence or fraud, the losing party may properly be relieved from the costs of his successful opponent. [Emphasis added] [95] It is the public interest criterion - the second principle in the forgoing emphasized quotations - which mitigates the usual costs rule that the loser pays the winner. But the need for such indulgence is now much diminished because civil procedure has substantially evolved since 1863. Parties now enjoy an enhanced pre-trial disclosure of documents and witnesses unavailable to 19th century litigants. Pre-trial access to medical records, medical opinions, professional and lay witnesses is commonplace. The likely outcome of litigation is more apparent now. There is less reason to incur the time and expense of a formal hearing. For these reasons the second Mitchell principle recedes in favour of the usual costs rule. [96] The increasing primacy of the usual rule finds expression in a recent decision of the Ontario Court of Appeal. In McDougald Estate v. Gooderham, [2005] O.J. No. 2432 (Ont. C.A.), Gillese, J.A. speaking for the court, described the contemporary approach: [80] However, the traditional approach has been – in my view, correctly – displaced. The modern approach to fixing costs in estate litigation is to carefully scrutinize the litigation and, unless the court finds that one or more of the public policy considerations set out above applies, to follow the costs rules that apply in civil litigation. Four cases usefully illustrate this modern approach. […] [85] The modern approach to awarding costs, at first instance, in estate litigation recognises the important role that courts play in ensuring that only valid wills executed by competent testators are propounded. It also recognises the need to restrict unwarranted litigation and protect estates from being depleted by litigation. Gone are the days when the costs of all parties are so routinely ordered payable out of the estate that people perceive there is nothing to be lost in pursuing estate litigation. [97] This trend appears in some Nova Scotia cases: Harnum v. Moser, 2007 NSSC 351; Van Kippersluis v. Van Kippersluis Estate, 2011 NSSC 399. [98] The policy reasons for the old rule are weaker now. By contrast, litigation is more expensive than ever. A rule that accommodates a losing party with costs is an inducement to litigation. Although the public interest component remains in probate litigation, the liberality of contemporary disclosure and the court’s policy of encouraging settlement, (Ameron v. Sable, 2013 SCC 37), favours the usual rule that the victor should be indemnified by the vanquished. [99] To the extent that there was a traditional practice of paying costs of all parties out of the estate, those days are over. Provided that a personal representative is discharging her duties and is acting reasonably, she can be expected to be indemnified from the estate. Not so with an adverse party, who may obtain party-party costs if successful, but may have to bear her own costs or even have to pay them, if unsuccessful. If the court proceeding can be ascribed to conduct of the deceased or residuary beneficiaries, a losing party may still recover costs from the estate, although usually on a party-party basis (Casavechia, supra; Townsend v. Doherty, 1993 O.J. No. 713, per Borins J. as he then was; Gamble v. McCormick, 2002 O.J. No. 2694 (S.C.J.); Holzel v. Mjeda, 2000 ABQB 549; Oldfield v. Oldfield Estate, 1994 O.J. No. 2529). [100] Awarding costs against or out of an estate means that the expense usually is borne by the residuary beneficiaries. It is appropriate to ask whether that is a proper burden for them to bear. Where the personal representative is discharging her duties and there is no other unsuccessful party to share at least some of the burden, there is nothing that can be done to mitigate this indirect charge on the generosity of the testatrix, at the expense of the residuary beneficiaries. But where, as here, there is an unsuccessful party who is the cause of the litigation, it is proper that the unsuccessful party bear much of the burden. Moreover, in this case, there was very little lay evidence, and no expert evidence, sustaining Mr. Wittenberg’s allegations. Finally, those allegations were not confined to incapacity, but also cast the aspersion of undue influence. [101] In my view, Justice Sutherland’s sentiments, expressed in Re Marshall Estate, [1998] O.J. No. 258, aptly capture the circumstances here: [33] Here there was no evidence of fraud and no evidence of undue influence and the allegations as to improper execution were utterly refuted and could have been checked on at an earlier stage. As to testamentary capacity the case is very different on the facts from the case of Re Olenchuk Estate where there was conflicting medical evidence as to the testator's testamentary capacity. [34] Here the attack on testamentary capacity not clearly unreasonable at the outset was persisted in irresponsibly without nearly enough evidence, without medical evidence, and without obtaining available evidence from identifiable potential lay witnesses, and apparently without assessment of the evidence given on the examinations for discovery. This is not a matter of hindsight; I am speaking of what was known or ought to have been known by September, 1995. Significantly, the challenger had to pay solicitor-client costs for persisting in an unwarranted claim of undue influence. [102] In Re Cutcliffe (deceased); Le Duc v. Veness and another, [1958] 3 All E.R. 642 (C.A.) the Court observed: In the Probate Division, notwithstanding exceptions to be found in the books, the probability is that people who unsuccessfully make pleas of undue influence and of fraud will be condemned in the costs not only of that charge but of the whole action. Cutcliffe was applied in the English Chancery Division case of Wharton v. Bancroft and others, [2012] EWHC 91 (Ch). Cutcliffe was also referred to in Gamble and Townsend. [103] Solicitor and client costs may even be awarded against a party asserting undue influence: Holzel citing Oldfield. [104] Some of the cases refer to “reasonable grounds” for the litigation or litigation not being “frivolous or vexatious” as reasons to exercise a cost discretion in favour of a losing party. Certainly those may be relevant considerations in the exercise of discretion. But those considerations should be tempered by the ability of the applying party to assess her case at an earlier stage. As Mr. Hull counsels in his article: However, it is important to note that the timing is everything and in proceedings with estate litigation matters, careful assessment of your case must be made, not just at this [preliminary] stage, but throughout the proceedings up to and including the trial of the issues. Accordingly, a proceeding that may initially look reasonable can appear otherwise when all the circumstances emerge. The prospects of success can disappear as the matter unfolds. In such cases, parties risk denial of costs out of the estate or even the payment of costs to the estate where the judge considers it appropriate. [105] In this case, Richard Wittenberg essentially repeated the arguments he made before the application judge. They do not improve with repetition. [106] The judge found as a fact that Mrs. Wittenberg had testamentary capacity. He found as a fact that no undue influence was exercised by anybody with respect to the making of her 2008 will. Costs should be awarded against Mr. Wittenberg. [107] Mr. Wittenberg submits that he was successful in establishing suspicious circumstances in the court below so he should be entitled to costs owing to partial success. Since Mr. Wittenberg has had no success in this Court, that argument can hardly apply here. Moreover, it ignores the serious allegations of undue influence for which there was literally no factual foundation. At the very least, Mr. Wittenberg should not have appealed this ground to this Court and probably should have withdrawn it after pre-hearing disclosure in the court below. [108] While suspicious circumstances might, in principle, justify relieving a losing party from paying costs - or may even justify payment of some costs to that party - there is no rule to that effect. It is obvious that an allegation of readily dispelled suspicious circumstances could frustrate the usual rule that the successful party be paid by the loser. In each case it would be a matter for consideration in the court’s exercise of its discretion, applying the applicable principles to the circumstances before it. [109] Mr. Wittenberg has lost again, essentially asking this Court to reweigh the evidence. This has imposed a substantial burden on the residuary beneficiaries. Indeed, the executrix submits that this was Mr. Wittenberg’s intention. In any event, he has repeated the serious allegation of undue influence, without any foundation for doing so. This alone should result in an increased award of costs. In the result, I would award costs of $10,000.00 against Mr. Wittenberg, payable to the executrix, for the benefit of the Estate. [110] The appeal is dismissed with costs of $10,000, inclusive of disbursements, payable by Mr. Wittenberg to the executrix, on behalf of the Estate. Bryson, J.A. Concurred in: Fichaud, J.A. Bourgeois, J.A.