Genuine Issue for Trial Required for Proof of Will in Solemn Form
1. Introduction
Cases are regularly decided in which a disappointed beneficiary makes an application to have testamentary documents proved in solemn form. The beneficiary typically argues that the testator lacked testamentary capacity and that she was unduly influenced. The law is now clear that to succeed, the beneficiary must prove that there is a genuine issue for trial. The Chambers judge thus functions as a gatekeeper to ensure that courts are not burdened by fatuous, that is, purposeless, applications. These issues arose again in Witzaney v Fisher.[1]
2. Facts
The testator, Clementine Fisher, survived her husband, who died in 2012. They had four children, James, Denise, Shelley, and Sherry. She made her last Will in 2016 in which she benefited all her children, as well as a couple of step-granddaughters. In February 2018 Clementine made a codicil in which she disinherited Shelley and the two step-granddaughters. In March 2018 she made a second codicil in which she removed Shelley as executor. The other three children remained her executors.
Shelley brought an application to have the executors prove the codicils in solemn form because, in her view, it was questionable whether Clementine had testamentary capacity, and because she may have been unduly influenced in making the two codicils. She did not take issue with the validity of the Will. Shelley’s siblings were the respondents.
The Chambers judge dismissed the application[2] and Shelley appealed.
3. Analysis and Judgment
McCreary JA delivered the judgment on the appeal and Schwann and Drennan JJA concurred. Justice McCreary noted that the Chambers judge identified the test for determining whether there is a genuine issue for trial and for an order directing that a testamentary instrument be proved in solemn form by reference to Kot v Kot.[3] She also noted that the Chambers judge recognized that it is not the role of the Chambers judge at the initial hearing to weigh conflicting evidence on the issues of testamentary capacity and undue influence.
The Chambers judge held that the evidence presented by Shelley on testamentary capacity was not sufficient to raise a genuine issue for trial because it did not speak to the material period when the codicils were made. Moreover, the respondents had shown that Clementine had the required capacity when they were made. In reaching that conclusion the Chambers Judge relied on the affidavit of the drafting lawyer, who deposed based on his notes and his recollections that he found Clementine to be fully competent to make the codicils. In particular the lawyer stated: (a) Clementine remained fully aware of her property and described which specific assets she wanted to give to named beneficiaries; (b) whenever he met Clementine (who was still living alone and caring for her own daily needs) he found her to be very alert and had no concerns about her cognitive abilities; (c) she gave reasons for excluding beneficiaries; (d) she never appeared to be confused or forget anything he told her; (e) she was very firm in telling him that she wanted to disinherit Shelley, even when he proposed other options for her consideration; and (f) she told him these things in a private room and she did not give him the slightest indication that she was being pressured to make these changes. Thus, again based on the uncontroverted evidence of the drafting lawyer, the Chambers judge found that there was nothing to suggest that Clementine was being unduly influenced by the respondents. Accordingly, the Chambers judge held that Shelley had failed to raise a genuine issue in the undue influence issue either.
In her appeal Shelley argued that the Chambers judge improperly weighed conflicting evidence and erred in finding that there was no genuine issue for trial on either issue. Justice McCreary noted that, since the Chambers judge’s decision was discretionary, the Court of Appeal could only interfere with it if the Chambers judge made a palpable and overriding error in the assessment of the facts, misapprehended, or failed to consider material evidence, or failed correctly to identify or apply the legal criteria governing the exercise of the judge’s discretion. The court concluded that the Chambers judge did not commit a reviewable error. On the issue of weighing conflicting evidence, Justice McCrea held that the Chambers Judge, having found that the evidence submitted by Shelley was not material to the issues of testamentary capacity and undue influence, did not weigh conflicting evidence. Moreover, she held that the Chambers judge correctly stated and applied the legal principles governing testamentary capacity and undue influence. The only relevant evidence on those issues came from the drafting lawyer. She agreed with the Chambers judge that that evidence was very compelling and uncontroverted, and that is showed that the lawyer was very careful in ensuring that Clementine had testamentary capacity and was not subjected to undue influence.
On the appeal Shelley argued that Clementine disinherited her because she believed that, as Clementine’s attorney, she had misappropriated her money. However. Justice McCreary did not accept that argument. The evidence on that point was controverted but it was uncontroverted that Clementine had other reasons to disinherit Shelley which she shared with her lawyer.
Accordingly, the court dismissed the appeal, ordered that the respondents be fully indemnified from the estate, and denied Shelley’s claim to have her costs paid from the estate.
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[1] 2023 SKCA 77.
[2] 2022 SKQB 103.
[3] 2021 SKCA 4.
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Written by: Albert Oosterhoff
Posted on: December 23, 2023
Categories: Commentary, WEL Newsletter
1. Introduction
Cases are regularly decided in which a disappointed beneficiary makes an application to have testamentary documents proved in solemn form. The beneficiary typically argues that the testator lacked testamentary capacity and that she was unduly influenced. The law is now clear that to succeed, the beneficiary must prove that there is a genuine issue for trial. The Chambers judge thus functions as a gatekeeper to ensure that courts are not burdened by fatuous, that is, purposeless, applications. These issues arose again in Witzaney v Fisher.[1]
2. Facts
The testator, Clementine Fisher, survived her husband, who died in 2012. They had four children, James, Denise, Shelley, and Sherry. She made her last Will in 2016 in which she benefited all her children, as well as a couple of step-granddaughters. In February 2018 Clementine made a codicil in which she disinherited Shelley and the two step-granddaughters. In March 2018 she made a second codicil in which she removed Shelley as executor. The other three children remained her executors.
Shelley brought an application to have the executors prove the codicils in solemn form because, in her view, it was questionable whether Clementine had testamentary capacity, and because she may have been unduly influenced in making the two codicils. She did not take issue with the validity of the Will. Shelley’s siblings were the respondents.
The Chambers judge dismissed the application[2] and Shelley appealed.
3. Analysis and Judgment
McCreary JA delivered the judgment on the appeal and Schwann and Drennan JJA concurred. Justice McCreary noted that the Chambers judge identified the test for determining whether there is a genuine issue for trial and for an order directing that a testamentary instrument be proved in solemn form by reference to Kot v Kot.[3] She also noted that the Chambers judge recognized that it is not the role of the Chambers judge at the initial hearing to weigh conflicting evidence on the issues of testamentary capacity and undue influence.
The Chambers judge held that the evidence presented by Shelley on testamentary capacity was not sufficient to raise a genuine issue for trial because it did not speak to the material period when the codicils were made. Moreover, the respondents had shown that Clementine had the required capacity when they were made. In reaching that conclusion the Chambers Judge relied on the affidavit of the drafting lawyer, who deposed based on his notes and his recollections that he found Clementine to be fully competent to make the codicils. In particular the lawyer stated: (a) Clementine remained fully aware of her property and described which specific assets she wanted to give to named beneficiaries; (b) whenever he met Clementine (who was still living alone and caring for her own daily needs) he found her to be very alert and had no concerns about her cognitive abilities; (c) she gave reasons for excluding beneficiaries; (d) she never appeared to be confused or forget anything he told her; (e) she was very firm in telling him that she wanted to disinherit Shelley, even when he proposed other options for her consideration; and (f) she told him these things in a private room and she did not give him the slightest indication that she was being pressured to make these changes. Thus, again based on the uncontroverted evidence of the drafting lawyer, the Chambers judge found that there was nothing to suggest that Clementine was being unduly influenced by the respondents. Accordingly, the Chambers judge held that Shelley had failed to raise a genuine issue in the undue influence issue either.
In her appeal Shelley argued that the Chambers judge improperly weighed conflicting evidence and erred in finding that there was no genuine issue for trial on either issue. Justice McCreary noted that, since the Chambers judge’s decision was discretionary, the Court of Appeal could only interfere with it if the Chambers judge made a palpable and overriding error in the assessment of the facts, misapprehended, or failed to consider material evidence, or failed correctly to identify or apply the legal criteria governing the exercise of the judge’s discretion. The court concluded that the Chambers judge did not commit a reviewable error. On the issue of weighing conflicting evidence, Justice McCrea held that the Chambers Judge, having found that the evidence submitted by Shelley was not material to the issues of testamentary capacity and undue influence, did not weigh conflicting evidence. Moreover, she held that the Chambers judge correctly stated and applied the legal principles governing testamentary capacity and undue influence. The only relevant evidence on those issues came from the drafting lawyer. She agreed with the Chambers judge that that evidence was very compelling and uncontroverted, and that is showed that the lawyer was very careful in ensuring that Clementine had testamentary capacity and was not subjected to undue influence.
On the appeal Shelley argued that Clementine disinherited her because she believed that, as Clementine’s attorney, she had misappropriated her money. However. Justice McCreary did not accept that argument. The evidence on that point was controverted but it was uncontroverted that Clementine had other reasons to disinherit Shelley which she shared with her lawyer.
Accordingly, the court dismissed the appeal, ordered that the respondents be fully indemnified from the estate, and denied Shelley’s claim to have her costs paid from the estate.
—
[1] 2023 SKCA 77.
[2] 2022 SKQB 103.
[3] 2021 SKCA 4.
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