1. Introduction
In a recent blog[1] I included a prolepsis about a possible future consideration of the rebuttable presumption of knowledge and approval and capacity. I had not planned to address the matter so soon but have concluded that it is better to do so now because more and more cases are being decided about the presumption. I wrote about it most recently in a blog posted in October 2022[2] on Re Grace Estate,[3] which also addresses the issue. The issue arises mostly because of a statement by Sopinka J in Vout v Hay:[4]
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 capacity.
The question that has been explored in subsequent cases is the meaning of the italicised clause. Does it mean that the presumption can always arise only if it is proved that the testator has read over the will, or had it read over to him?
I shall address this question and related issues by reference to a slightly older case, Karpinski v Zookewich Estate.[5] In the process, I shall also refer to the excellent text by John E.S. Poyser, Capacity and Undue Influence.[6] He discusses the question in detail both in respect of testamentary capacity and knowledge and approval.[7]
2. Facts
The testator, Ernie Zookewich, was born in 1935. His father died when he was three years old and his mother, Annie, then married Stanley Karpinsky in 1938. Annie and Stanley had two children, Ed and Mary. Ernie never married and had no children. Ed and Mary are his only siblings. Ernie died in 2016
Ernie quit school in grade 5 or 6 to work on the family farm. He never married, had few friends and no girlfriends. His parent paid for his living expenses and groceries. Ernie was a hard worker a self-taught mechanic. Ed left the family farm in 1957 and married Verl Karpinski. He adopted Verl’s daughter. They became involved with the family farm again in 1985 until they moved away in 1995. Mary left the family farm in 1963 and married Al Lozinski in 1964. They had four children.
Stanley and Annie died in 2007. They left three quarters of farmland to Ernie and one quarter to Ed. When Ernie died, he owned 11 quarters of farmland. He made his Will, prepared by his lawyer, in 2006 and in it named Mary and Al his executors and sole beneficiaries of his estate. He stated in the will:
As I have not left anything to my brother, I wish to confirm that the reason for doing so is because I feel my brother is well off and has no need for further funds or assets.
The drafting lawyer predeceased Ernie but his law firm provided the contents of the file as it related to the preparation of the Will.
Ed brought an application to require proof of the Will in solemn form. He alleged that Ernie lacked testamentary capacity and did not know and approve the contents of the Will, and that Mary and Al exerted undue influence over Ernie.
The chambers judge dismissed the application.[8] Ed appealed. He argued that the will had not been executed properly, that there were suspicious circumstances surrounding the making and execution of the will, and that it was unknown whether the testator knew and approved the contents of the will.
3. Analysis and Judgment
3.1 Issues
On the appeal the judgment was delivered by Herauf JA. The court considered the following issues:
(a) the standard of proof and test to have a will proved in solemn form;
(b) undue influence
(i) the presumption and legal burden; and
(ii) the test for undue influence;
(c) knowledge and approval of the contents of the Will:
(i) knowledge and approval as distinct from testamentary capacity; and
(ii) the doctrine of righteousness.
3.2 Standard of Proof and Test for Proving a Will in Solemn Form
Justice Herauf quoted the following passage from Bachman v Scheidt:[9]
[16] In order to have a trial to prove the will in solemn form, the applicant must, at the first hearing, establish a genuine issue to be tried. To do this, he or she must point to some evidence which, if accepted at trial, would tend to negative testamentary capacity or support a finding of undue influence. The applicant must do more than simply suggest an irregularity or point to evidence on peripheral points. Rather, probative evidence showing a genuine issue must be adduced. Once this hurdle is cleared, the propounder of the will may attempt to answer the challenge by showing unconditional and uncontroverted evidence that affirms that the maker of the will had the necessary testamentary capacity and/or was not unduly influenced. Although the Chambers judge may consider evidence from both parties, it is not his or her job to weigh conflicting evidence and make findings of credibility. If contradictory evidence is adduced, especially where findings of credibility will have to be made, the only option for the Chambers judge is to direct a trial.
This statement merely repeats the modern test for proving a will in solemn form and should not have to be stated.[10] But I have reproduced it in full because lawyers continue to bring such applications on the basis of flimsy evidence that often consist simply of the subjective opinions of the person attacking the will.
The chambers judge had applied the same test and concluded that Ed had not established a genuine issue to be tried. The Court of Appeal agreed with this assessment as regards the issues of undue influence (paras 31-32) and knowledge and approval (paras 35-36).
3.3 Undue Influence
The court applied the well-known statement of Sopinka J in Vout v Hay[11] in which he stated that the burden of proving undue influence (as well as fraud) lies on those attacking the will. Significantly, in Karpinski Justice Herauf therefore also emphasized that the rebuttable presumption of undue influence that can be raised in the context of inter vivos gifts does not apply in probate (para 29).[12]
As noted above, the court agreed with the chambers judge that no genuine issue arose to support the suggestion that Mary and Al exerted undue influence on Ernie. There was no evidence of manipulation, coercion, or abuse by them (para 31).
3.4 Knowledge and Approval
Justice Herauf again referred to Vout v Hay and Justice Sopinka’s statement in that case at para 26 about suspicious circumstances. The passage is:
[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.
Justice Herauf notes that this passage confirms that knowledge and approval and testamentary capacity are separate concepts, for Sopinka J listed due execution, knowledge and approval, and testamentary capacity as three separate legal burdens. Very significantly, Justice Sopinka then went on to say:
[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.
Justice Herauf noted that the chambers judge considered all three issues and went on to state in any event ‘proof of capacity, combined with execution, is enough to discharge the propounder of the will’s burden since the testator’s knowledge and approval will be presumed.’ He then went on to note that this rebuttable presumption is based on the maxim omnia praesumuntur rite esse acta, which means that the law presumes that all required acts have been performed until the contrary is proved. He quoted the following passage from the judgment of Lindley LJ in Harris v Knight,[13] which explains the doctrine:
The maxim, “Omnia praesumuntur rite esse acta,” is an expression, in a short form, of a reasonable probability, and of the propriety in point of law of acting on such probability. The maxim expresses an inference which may reasonably be drawn when an intention to do some formal act is established; when the evidence is consistent with that intention having been carried into effect in a proper way; but when the actual observance of all due formalities can only be inferred as a matter of probability. The maxim is not wanted where such observance is proved, nor has it any place where such observance is disproved. The maxim only comes into operation where there is no proof one way or the other; but where it is more probable that what was intended to be done was done as it ought to have been done to render it valid; rather than that it was done in some other manner which would defeat the intention proved to exist, and would render what is proved to have been done of no effect.
This maxim has been quoted and applied regularly by the courts.[14]
Ed argued that there was no proof that the Will was read over by or to Ernie and that he understood it, since the drafting lawyer had predeceased him and the file was silent on the point. He relied on the passage from paragraph 26 of Vout v Hay, quoted above and argued that such proof is necessary.
Justice Herauf disagreed and applied Yen Estate v Chan.[15] In it the British Columbia Court of Appeal held that when there are no suspicious circumstances surrounding the execution of the will and upon proof that the testator has signed the will, the court is entitled to rely on the presumptions of execution and knowledge and approval. Thus, in that case the court held that the presumptions applied even though there was no evidence that the testator had read the will or had it read over to him. Since Ernie had properly executed the Will and since the chambers judge rightly found there to be no suspicious circumstances, the chambers judge was entitled to conclude that Ernie had knowledge of and approved the contents of the will. The fact that Ernie left Ed nothing in the Will because he felt that he was well off was simply Ernie’s subjective belief that this was true and there was nothing suspicious about it.
3.5 The Doctrine of Righteousness
The Supreme Court of Canada spoke of this issue in Riach v Ferris,[16] in which it quoted a passage from the judgment of Lord Hatherly in Fulton v Andrew.[17] Lord Hatherly was discussing the second rule of Barry v Butlin[18] in which Baron Parke stated that when a person writes or prepares a will under which he takes a benefit, that is a suspicious circumstance and the court should not pronounce in favour of the will unless the suspicion is removed. In Fulton v Andrew Lord Hatherly stated that a person who was instrumental in preparing or obtaining a will must prove ‘the righteousness of the transaction’.
In Karpinski the Court of Appeal quoted from the first edition of Poyser’s text on this point. The author takes the view that the doctrine of the righteousness of the transaction is a separate doctrine from the doctrine of suspicious circumstances, although he admits that the doctrine of righteousness ‘appears to be falling out of favour’.[19] The Court of Appeal noted that there were no suspicious circumstances so that, if the doctrine still exists, it did not apply in this case.
It is interesting to note that in Fuller v Strum[20] Gibson LJ regarded the term to be an unfortunate one which suggests that a moral judgment of the court is required. His Lordship points out that this is not the case but that when a person is instrumental in making or obtaining a will under which he obtains a benefit, he must dispel the suspicion about whether the testator knew and approved the contents.
4. Conclusion
The burden of this blog was to address the meaning of the clause in paragraph 26 of Vout v Hay, ‘after having been read over to or by a testator who appeared to understand it’. I submit that we now have a significant body of case law which makes it clear that while proof of a reading over to or by a testator may provide the best evidence of knowledge and approval, it is not essential, even in cases of suspicious circumstances. Knowledge and approval can be proved in other ways. And importantly, if there are no suspicious circumstances and it appears that the testator has signed the will in accordance with the statutory requirements, even though that cannot be proved since the witnesses are not available, the court is entitled to rely on the presumptions of knowledge and approval and testamentary capacity, and it can do so even if there is no attestation clause in the will.[21]
Of course the presumptions can be rebutted by direct evident of suspicious circumstances
It is also important to consider the consequence of rules that require overly strict proof. In Re Laxer[22] Schroeder JA made the following trenchant comment:
The authorities supporting the application of the presumption favouring due execution of a testamentary instrument lay down a very sound and salutary principle, since a contrary rule would make the rights of devisees and legatees depend not only upon the honesty, but also upon the frail and slippery memory of witnesses. No man could be sure of dying testate, since the dishonesty or forgetfulness of a witness could frustrate all his precautions to comply with the requirements of the law.[23]
It is my hope that in light of the recent cases I have discussed in this blog applicants seeking proof of a will in solemn form will desist from insisting on proof that the testator read the will or had it read to her.
—
[1] ‘An Illusory Illusion’, a blog on Roe v Roe, 2022 ONSC 5821.
[2] https://welpartners.com/blog/2022/10/the-presumption-of-due-execution-re-grace-estate/.
[3] 2022 BCSC 1283.
[4] [1995] 2 SCR 876, para 26.
[5] 2018 SKCA 56. I am very much obliged to my colleague Nima Hojjati for finding the relevant cases.
[6] 2nd ed (Toronto: Thomson Reuters, 2019).
[7] Ibid., respectively at pp.12-33, and 234-254.
[8] Karpinski v Zookewich Estate, 2017 SKQB 278.
[9] 2016 SKCA 150 (emphasis added by the court in Karpinski). For a similar statement of the test see the recent English case, Boast v Ballardi, [2022] EWHC 1533 (Ch), para 29.
[10]The court cited two leading case as authority: Royal Trust Corp of Canada v Ritchie, 2007 SKCA, para 6; and Kapacila Estate v Otto, 2010 SKCA 85. See also Neuberger v York, 2016 ONCA 191, paras 81-98, per Gillese JA. And see also Johnson v Johnson, 2022 ONCA 682, 81 ETR 4th 7, paras 7-8, to the same effect
[11]Footnote 4, supra, para 21.
[12]On this point see also Seguin v Pearson, 2018 ONCA 355, para 12, to the same effect.
[13] (1890), 15 PD 170 at 170.
[14] See, e.g., R v. Rorquist, [1981] 1 WWR 279 (Sask CA), referred to by Herauf JA; Re Laxer, 1963 CarswellOnt 170, [1963] 1 OR 343 (CA), para 28; Yen Estate v Chan, 2013 BCCA 423, para 14; Re Grace Estate, 2022 BCSC 1283, para 20.
[15] Ibid.
[16] [1934] SCR 725 at 730-31.
[17] (1875), LR 7 HL 448 at 472-73.
[18] (1838), 2 Moo PC 480 at 482-83.
[19] See now the second edition of this text, footnote XX, supra, pp 272-312.
[20] [2001] EWCA Civ 1879, [2002] 1 WLR 1097 at 1107.
[21] Re Laxer, footnote 14, supra, p 356
[22]Ibid., p 357.
[23]See also Vout v Hay, footnote 4, supra, para 28, to the same effect.
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Written by: Albert Oosterhoff
Posted on: April 10, 2023
Categories: Commentary, WEL Newsletter
1. Introduction
In a recent blog[1] I included a prolepsis about a possible future consideration of the rebuttable presumption of knowledge and approval and capacity. I had not planned to address the matter so soon but have concluded that it is better to do so now because more and more cases are being decided about the presumption. I wrote about it most recently in a blog posted in October 2022[2] on Re Grace Estate,[3] which also addresses the issue. The issue arises mostly because of a statement by Sopinka J in Vout v Hay:[4]
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 capacity.
The question that has been explored in subsequent cases is the meaning of the italicised clause. Does it mean that the presumption can always arise only if it is proved that the testator has read over the will, or had it read over to him?
I shall address this question and related issues by reference to a slightly older case, Karpinski v Zookewich Estate.[5] In the process, I shall also refer to the excellent text by John E.S. Poyser, Capacity and Undue Influence.[6] He discusses the question in detail both in respect of testamentary capacity and knowledge and approval.[7]
2. Facts
The testator, Ernie Zookewich, was born in 1935. His father died when he was three years old and his mother, Annie, then married Stanley Karpinsky in 1938. Annie and Stanley had two children, Ed and Mary. Ernie never married and had no children. Ed and Mary are his only siblings. Ernie died in 2016
Ernie quit school in grade 5 or 6 to work on the family farm. He never married, had few friends and no girlfriends. His parent paid for his living expenses and groceries. Ernie was a hard worker a self-taught mechanic. Ed left the family farm in 1957 and married Verl Karpinski. He adopted Verl’s daughter. They became involved with the family farm again in 1985 until they moved away in 1995. Mary left the family farm in 1963 and married Al Lozinski in 1964. They had four children.
Stanley and Annie died in 2007. They left three quarters of farmland to Ernie and one quarter to Ed. When Ernie died, he owned 11 quarters of farmland. He made his Will, prepared by his lawyer, in 2006 and in it named Mary and Al his executors and sole beneficiaries of his estate. He stated in the will:
As I have not left anything to my brother, I wish to confirm that the reason for doing so is because I feel my brother is well off and has no need for further funds or assets.
The drafting lawyer predeceased Ernie but his law firm provided the contents of the file as it related to the preparation of the Will.
Ed brought an application to require proof of the Will in solemn form. He alleged that Ernie lacked testamentary capacity and did not know and approve the contents of the Will, and that Mary and Al exerted undue influence over Ernie.
The chambers judge dismissed the application.[8] Ed appealed. He argued that the will had not been executed properly, that there were suspicious circumstances surrounding the making and execution of the will, and that it was unknown whether the testator knew and approved the contents of the will.
3. Analysis and Judgment
3.1 Issues
On the appeal the judgment was delivered by Herauf JA. The court considered the following issues:
(a) the standard of proof and test to have a will proved in solemn form;
(b) undue influence
(i) the presumption and legal burden; and
(ii) the test for undue influence;
(c) knowledge and approval of the contents of the Will:
(i) knowledge and approval as distinct from testamentary capacity; and
(ii) the doctrine of righteousness.
3.2 Standard of Proof and Test for Proving a Will in Solemn Form
Justice Herauf quoted the following passage from Bachman v Scheidt:[9]
[16] In order to have a trial to prove the will in solemn form, the applicant must, at the first hearing, establish a genuine issue to be tried. To do this, he or she must point to some evidence which, if accepted at trial, would tend to negative testamentary capacity or support a finding of undue influence. The applicant must do more than simply suggest an irregularity or point to evidence on peripheral points. Rather, probative evidence showing a genuine issue must be adduced. Once this hurdle is cleared, the propounder of the will may attempt to answer the challenge by showing unconditional and uncontroverted evidence that affirms that the maker of the will had the necessary testamentary capacity and/or was not unduly influenced. Although the Chambers judge may consider evidence from both parties, it is not his or her job to weigh conflicting evidence and make findings of credibility. If contradictory evidence is adduced, especially where findings of credibility will have to be made, the only option for the Chambers judge is to direct a trial.
This statement merely repeats the modern test for proving a will in solemn form and should not have to be stated.[10] But I have reproduced it in full because lawyers continue to bring such applications on the basis of flimsy evidence that often consist simply of the subjective opinions of the person attacking the will.
The chambers judge had applied the same test and concluded that Ed had not established a genuine issue to be tried. The Court of Appeal agreed with this assessment as regards the issues of undue influence (paras 31-32) and knowledge and approval (paras 35-36).
3.3 Undue Influence
The court applied the well-known statement of Sopinka J in Vout v Hay[11] in which he stated that the burden of proving undue influence (as well as fraud) lies on those attacking the will. Significantly, in Karpinski Justice Herauf therefore also emphasized that the rebuttable presumption of undue influence that can be raised in the context of inter vivos gifts does not apply in probate (para 29).[12]
As noted above, the court agreed with the chambers judge that no genuine issue arose to support the suggestion that Mary and Al exerted undue influence on Ernie. There was no evidence of manipulation, coercion, or abuse by them (para 31).
3.4 Knowledge and Approval
Justice Herauf again referred to Vout v Hay and Justice Sopinka’s statement in that case at para 26 about suspicious circumstances. The passage is:
[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.
Justice Herauf notes that this passage confirms that knowledge and approval and testamentary capacity are separate concepts, for Sopinka J listed due execution, knowledge and approval, and testamentary capacity as three separate legal burdens. Very significantly, Justice Sopinka then went on to say:
[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.
Justice Herauf noted that the chambers judge considered all three issues and went on to state in any event ‘proof of capacity, combined with execution, is enough to discharge the propounder of the will’s burden since the testator’s knowledge and approval will be presumed.’ He then went on to note that this rebuttable presumption is based on the maxim omnia praesumuntur rite esse acta, which means that the law presumes that all required acts have been performed until the contrary is proved. He quoted the following passage from the judgment of Lindley LJ in Harris v Knight,[13] which explains the doctrine:
The maxim, “Omnia praesumuntur rite esse acta,” is an expression, in a short form, of a reasonable probability, and of the propriety in point of law of acting on such probability. The maxim expresses an inference which may reasonably be drawn when an intention to do some formal act is established; when the evidence is consistent with that intention having been carried into effect in a proper way; but when the actual observance of all due formalities can only be inferred as a matter of probability. The maxim is not wanted where such observance is proved, nor has it any place where such observance is disproved. The maxim only comes into operation where there is no proof one way or the other; but where it is more probable that what was intended to be done was done as it ought to have been done to render it valid; rather than that it was done in some other manner which would defeat the intention proved to exist, and would render what is proved to have been done of no effect.
This maxim has been quoted and applied regularly by the courts.[14]
Ed argued that there was no proof that the Will was read over by or to Ernie and that he understood it, since the drafting lawyer had predeceased him and the file was silent on the point. He relied on the passage from paragraph 26 of Vout v Hay, quoted above and argued that such proof is necessary.
Justice Herauf disagreed and applied Yen Estate v Chan.[15] In it the British Columbia Court of Appeal held that when there are no suspicious circumstances surrounding the execution of the will and upon proof that the testator has signed the will, the court is entitled to rely on the presumptions of execution and knowledge and approval. Thus, in that case the court held that the presumptions applied even though there was no evidence that the testator had read the will or had it read over to him. Since Ernie had properly executed the Will and since the chambers judge rightly found there to be no suspicious circumstances, the chambers judge was entitled to conclude that Ernie had knowledge of and approved the contents of the will. The fact that Ernie left Ed nothing in the Will because he felt that he was well off was simply Ernie’s subjective belief that this was true and there was nothing suspicious about it.
3.5 The Doctrine of Righteousness
The Supreme Court of Canada spoke of this issue in Riach v Ferris,[16] in which it quoted a passage from the judgment of Lord Hatherly in Fulton v Andrew.[17] Lord Hatherly was discussing the second rule of Barry v Butlin[18] in which Baron Parke stated that when a person writes or prepares a will under which he takes a benefit, that is a suspicious circumstance and the court should not pronounce in favour of the will unless the suspicion is removed. In Fulton v Andrew Lord Hatherly stated that a person who was instrumental in preparing or obtaining a will must prove ‘the righteousness of the transaction’.
In Karpinski the Court of Appeal quoted from the first edition of Poyser’s text on this point. The author takes the view that the doctrine of the righteousness of the transaction is a separate doctrine from the doctrine of suspicious circumstances, although he admits that the doctrine of righteousness ‘appears to be falling out of favour’.[19] The Court of Appeal noted that there were no suspicious circumstances so that, if the doctrine still exists, it did not apply in this case.
It is interesting to note that in Fuller v Strum[20] Gibson LJ regarded the term to be an unfortunate one which suggests that a moral judgment of the court is required. His Lordship points out that this is not the case but that when a person is instrumental in making or obtaining a will under which he obtains a benefit, he must dispel the suspicion about whether the testator knew and approved the contents.
4. Conclusion
The burden of this blog was to address the meaning of the clause in paragraph 26 of Vout v Hay, ‘after having been read over to or by a testator who appeared to understand it’. I submit that we now have a significant body of case law which makes it clear that while proof of a reading over to or by a testator may provide the best evidence of knowledge and approval, it is not essential, even in cases of suspicious circumstances. Knowledge and approval can be proved in other ways. And importantly, if there are no suspicious circumstances and it appears that the testator has signed the will in accordance with the statutory requirements, even though that cannot be proved since the witnesses are not available, the court is entitled to rely on the presumptions of knowledge and approval and testamentary capacity, and it can do so even if there is no attestation clause in the will.[21]
Of course the presumptions can be rebutted by direct evident of suspicious circumstances
It is also important to consider the consequence of rules that require overly strict proof. In Re Laxer[22] Schroeder JA made the following trenchant comment:
The authorities supporting the application of the presumption favouring due execution of a testamentary instrument lay down a very sound and salutary principle, since a contrary rule would make the rights of devisees and legatees depend not only upon the honesty, but also upon the frail and slippery memory of witnesses. No man could be sure of dying testate, since the dishonesty or forgetfulness of a witness could frustrate all his precautions to comply with the requirements of the law.[23]
It is my hope that in light of the recent cases I have discussed in this blog applicants seeking proof of a will in solemn form will desist from insisting on proof that the testator read the will or had it read to her.
—
[1] ‘An Illusory Illusion’, a blog on Roe v Roe, 2022 ONSC 5821.
[2] https://welpartners.com/blog/2022/10/the-presumption-of-due-execution-re-grace-estate/.
[3] 2022 BCSC 1283.
[4] [1995] 2 SCR 876, para 26.
[5] 2018 SKCA 56. I am very much obliged to my colleague Nima Hojjati for finding the relevant cases.
[6] 2nd ed (Toronto: Thomson Reuters, 2019).
[7] Ibid., respectively at pp.12-33, and 234-254.
[8] Karpinski v Zookewich Estate, 2017 SKQB 278.
[9] 2016 SKCA 150 (emphasis added by the court in Karpinski). For a similar statement of the test see the recent English case, Boast v Ballardi, [2022] EWHC 1533 (Ch), para 29.
[10]The court cited two leading case as authority: Royal Trust Corp of Canada v Ritchie, 2007 SKCA, para 6; and Kapacila Estate v Otto, 2010 SKCA 85. See also Neuberger v York, 2016 ONCA 191, paras 81-98, per Gillese JA. And see also Johnson v Johnson, 2022 ONCA 682, 81 ETR 4th 7, paras 7-8, to the same effect
[11]Footnote 4, supra, para 21.
[12]On this point see also Seguin v Pearson, 2018 ONCA 355, para 12, to the same effect.
[13] (1890), 15 PD 170 at 170.
[14] See, e.g., R v. Rorquist, [1981] 1 WWR 279 (Sask CA), referred to by Herauf JA; Re Laxer, 1963 CarswellOnt 170, [1963] 1 OR 343 (CA), para 28; Yen Estate v Chan, 2013 BCCA 423, para 14; Re Grace Estate, 2022 BCSC 1283, para 20.
[15] Ibid.
[16] [1934] SCR 725 at 730-31.
[17] (1875), LR 7 HL 448 at 472-73.
[18] (1838), 2 Moo PC 480 at 482-83.
[19] See now the second edition of this text, footnote XX, supra, pp 272-312.
[20] [2001] EWCA Civ 1879, [2002] 1 WLR 1097 at 1107.
[21] Re Laxer, footnote 14, supra, p 356
[22]Ibid., p 357.
[23]See also Vout v Hay, footnote 4, supra, para 28, to the same effect.
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