Indexed as: Wasylynuk v. Bouma

ALBERTA LAW REPORTS 70 Alta. L.R. (6th)288

[Indexed as: Wasylynuk v. Bouma]

Betty Ann Wasylynuk (Plaintiff) and Bernie Bouma, Lori Lee

Scheck, Rick Bouma, Lindy Hager and the Estate of Tette (Ted)

Bouma (Defendants)

Alberta Court of Queen’s Bench

Docket: Edmonton 0803-13559

2018 ABQB 159

K.G. Nielsen J.

Heard: October 26-27, 2017; January 15-19, 22, 2018

Judgment: March 2, 2018

Estates and trusts –––– Gifts — Revocation and setting aside — Miscellane-

ous –––– Testator executed number of documents relating to disposition of his

property — Documents were: four separate beneficiary designations in 1990s re-

lating to insurance products; 1998 will; 2001 deed of gift; and 2001 will — Par-

ties were children of testator — Validity of deed of gift, 2001 will and benefici-

ary designations was challenged — Parties brought applications for summary

judgment — It was determined that deed of gift, 2001 will and beneficiary des-

ignations were valid — Defendants rebutted presumption of resulting trust in re-

lation to deed of gift, in relation to business related assets — Testator intended

to make gift of beneficial interest in those assets — Testator intended to gift bal-

ance to defendant B on understanding that B would apportion balance equally

between siblings — Despite evidence of incompetence at various times related

to alcohol consumption and withdrawal, testator had sufficient mental capacity

at relevant time to make such gift — Testator made gift voluntarily and deliber-

ately, knowing what he was doing — Testator was sufficiently clear in his un-

derstanding and memory to know in general way nature and extent of his pro-

perty and persons who ordinarily might be expected to benefit — Testator

appreciated risk to himself of impoverishment — Law on unconscionable pro-

curement did not change conclusion — Testator had been sent out for indepen-

dent legal advice, and ultimately attended for two capacity assessments with

doctors who were familiar with him.

Estates and trusts –––– Estates — Legacies and devises — Grounds for inva-

lidity –––– Testator executed number of documents relating to disposition of his

property — Documents were: four separate beneficiary designations in 1990s re-

lating to insurance products; 1998 will; 2001 deed of gift; and 2001 will — Par-

ties were children of testator — Validity of deed of gift, 2001 will and benefici-

ary designations was challenged — Parties brought applications for summary

judgment — It was determined that deed of gift, 2001 will and beneficiary des-

Wasylynuk v. Bouma 289

ignations were valid — Testator was competent at time of signing of deed of gift

five months prior to executing 2001 will — Though there was history of alcohol

use, there was no evidence that this was factor when testator executed 2001

will — Evidence supported finding that testator’s capacity was not significantly

different at time of executing 2001 will than it was when he signed deed of

gift — There was nothing upon which to infer that any decline in cognition or

memory was so steep that testator would have lost capacity between signing

deed of gift and executing 2001 will — To extent resulting trust arose under

deed of gift, 2001 will confirmed testator’s intention that all of his property be

transferred absolutely to defendant B on his death — 2001 will effectively re-

moved any conditions which were attached to remaining property on testator’s

death — Testator viewed 2001 will as confirming his general intention as ex-

pressed in deed of gift that B would have control over his estate — There was

nothing to support allegations of suspicious circumstances.

Cases considered by K.G. Nielsen J.:

Banks v. Goodfellow (1870), L.R. 5 Q.B. 549, [1861-73] All E.R. Rep. 47,

[1871] L.R. 11 Eq. 472, 39 L.J.Q.B. 237, 22 L.T. 813 (Eng. Q.B.) — re-

ferred to

Bartlett v. Bull (1914), 5 W.W.R. 1207, 16 D.L.R. 82, 1914 CarswellAlta 266,

26 W.L.R. 831, 2 R.F.L. Rep. 152 (Alta. T.D.) — referred to

Beal v. Henri (1950), [1950] O.R. 780, [1951] 1 D.L.R. 260, [1950] O.W.N.

760, 1950 CarswellOnt 81, [1950] O.J. No. 483 (Ont. C.A.) — referred to

Beaney, Re (1978), [1978] 2 All E.R. 595, [1978] 1 W.L.R. 770 (Eng. Ch.

Div.) — considered

Beimler v. Kendall (2017), 2017 ABCA 117, 2017 CarswellAlta 649, 29 E.T.R.

(4th) 190, [2017] A.J. No. 376 (Alta. C.A.) — considered

Bradbury Estate, Re (1996), 13 E.T.R. (2d) 67, 183 A.R. 362, 1996 Carswell-

Alta 323 (Alta. Surr. Ct.) — referred to

Bradley v. Crittenden (1932), [1932] S.C.R. 552, [1932] 3 D.L.R. 193, 1932

CarswellAlta 75 (S.C.C.) — referred to

Campbell v. Campbell (1906), 5 W.L.R. 59, 6 Terr. L.R. 378, 1906 CarswellAlta

5 (N.W.T. S.C.) — referred to

Corbett v. Wall (1938), 13 M.P.R. 359, [1939] 2 D.L.R. 201, 1938 CarswellNB

23 (N.B. C.A.) — referred to

Crabbe v. S. (1925), [1925] 2 W.W.R. 701, 36 B.C.R. 89, [1925] 3 D.L.R. 1069,

1925 CarswellBC 55, (sub nom. Crabbe v. Shields Estate) [1925] B.C.J. No.

102 (B.C. C.A.) — referred to

Fairchild v. Mitchell (1959), 43 M.P.R. 9, 19 D.L.R. (2d) 521, 1959 CarswellNS

14, [1959] N.S.J. No. 14 (N.S. C.A.) — referred to

Fowler Estate v. Barnes (1996), 13 E.T.R. (2d) 150, 142 Nfld. & P.E.I.R. 223,

445 A.P.R. 223, 1996 CarswellNfld 169, [1996] N.J. No. 206 (Nfld.

T.D.) — referred to


Fraser, Re (1932), [1932] 3 W.W.R. 381, 26 Alta. L.R. 551, 1932 CarswellAlta

27 (Alta. C.A.) — referred to

Goodman Estate v. Geffen (1991), [1991] 5 W.W.R. 389, 42 E.T.R. 97, (sub

nom. Geffen v. Goodman Estate) [1991] 2 S.C.R. 353, 125 A.R. 81, 14

W.A.C. 81, 80 Alta. L.R. (2d) 293, (sub nom. Geffen v. Goodman Estate) 81

D.L.R. (4th) 211, 127 N.R. 241, [1991] S.C.J. No. 53, 1991 CarswellAlta 91,

1991 CarswellAlta 557, EYB 1991-85679 (S.C.C.) — referred to

Hryniak v. Mauldin (2014), 2014 CarswellOnt 640, 2014 CarswellOnt 641, 37

R.P.R. (5th) 1, [2014] S.C.J. No. 7, 46 C.P.C. (7th) 217, 27 C.L.R. (4th) 1,

(sub nom. Hryniak v. Mauldin) 366 D.L.R. (4th) 641, 2014 CSC 7, 453 N.R.

51, 12 C.C.E.L. (4th) 1, 314 O.A.C. 1, 95 E.T.R. (3d) 1, 21 B.L.R. (5th) 248,

[2014] 1 S.C.R. 87, [2014] A.C.S. No. 7, 2014 SCC 7 (S.C.C.) — referred to

Kapacila Estate v. Otto (2010), 2010 SKCA 85, 2010 CarswellSask 404, [2010]

9 W.W.R. 575, 58 E.T.R. (3d) 173, (sub nom. Kapacila Estate, Re) 359

Sask. R. 84, (sub nom. Kapacila Estate, Re) 494 W.A.C. 84 (Sask. C.A.) —

referred to

Keller v. Luzzi Estate (2010), 2010 ABCA 127, 2010 CarswellAlta 753, 56

E.T.R. (3d) 172, 477 A.R. 184, 483 W.A.C. 184 (Alta. C.A.) — referred to

Kinsella v. Pask (1913), 28 O.L.R. 393, 12 D.L.R. 522, 1913 CarswellOnt 781

(Ont. C.A.) — referred to

Kostynuik v. Brychun (1982), 18 Sask. R. 383, 1982 CarswellSask 370 (Sask.

Surr. Ct.) — referred to

Laramee v. Ferron (1909), 41 S.C.R. 391, 1909 CarswellQue 20, [1909] S.C.J.

No. 10 (S.C.C.) — referred to

Leger v. Poirier (1944), [1944] S.C.R. 152, [1944] 3 D.L.R. 1, 1944 Car-

swellNB 11 (S.C.C.) — referred to

MacGrotty v. Anderson (1995), 9 E.T.R. (2d) 179, 1995 CarswellBC 825,

[1995] B.C.J. No. 1857 (B.C. S.C.) — considered

Maddess v. Racz (2008), 2008 BCSC 1550, 2008 CarswellBC 2484, [2008]

B.C.J. No. 2202 (B.C. S.C.) — referred to

Maddess v. Racz (2009), 2009 BCCA 539, 2009 CarswellBC 3717, [2009]

B.C.J. No. 2739 (B.C. C.A.) — referred to

Maddess v. Racz (2010), 2010 CarswellBC 1370, 2010 CarswellBC 1371, 409

N.R. 386 (note), 299 B.C.A.C. 321 (note), 508 W.A.C. 321 (note), [2010]

S.C.C.A. No. 72 (S.C.C.) — referred to

Mah v. Zukas Estate (2016), 2016 ABQB 587, 2016 CarswellAlta 2608, [2016]

A.J. No. 1372 (Alta. Q.B.) — referred to

Mathieu v. St Michel (1956), [1956] S.C.R. 477, 3 D.L.R. (2d) 428, 1956 Car-

swellQue 36 (S.C.C.) — referred to

McCardell Estate v. Cushman (1988), 94 A.R. 262, 1988 CarswellAlta 475,

[1988] A.J. No. 1041 (Alta. C.A.) — referred to

Moncrieff v. Hayne (2014), 2014 ABCA 297, 2014 CarswellAlta 1587, 2 E.T.R.

(4th) 19, [2014] A.J. No. 981 (Alta. C.A.) — referred to

Wasylynuk v. Bouma 291

Murphy v. Lamphier (1914), 31 O.L.R. 287, 6 O.W.N. 238, [1914] O.J. No. 32,

1914 CarswellOnt 598 (Ont. H.C.) — referred to

Neazor v. Hoyle (1962), 37 W.W.R. 104, 32 D.L.R. (2d) 131, 1962 CarswellAlta


P. (W.) v. Alberta (2014), 2014 ABCA 404, 2014 CarswellAlta 2152, 378

D.L.R. (4th) 629, 62 C.P.C. (7th) 111, [2015] 5 W.W.R. 430, 588 A.R. 110,

626 W.A.C. 110, [2014] A.J. No. 1320, 7 Alta. L.R. (6th) 319 (Alta.

C.A.) — referred to

Pecore v. Pecore (2007), 2007 SCC 17, 2007 CarswellOnt 2752, 2007 Carswell-

Ont 2753, [2007] S.C.J. No. 17, 361 N.R. 1, 32 E.T.R. (3d) 1, 37 R.F.L.

(6th) 237, 279 D.L.R. (4th) 513, 224 O.A.C. 330, [2007] 1 S.C.R. 795

(S.C.C.) — considered

Popowich v. Capasso (2012), 2012 ABQB 665, 2012 CarswellAlta 1903, 83

E.T.R. (3d) 161, 72 Alta. L.R. (5th) 265, (sub nom. Popowich, Re) 550 A.R.

355, [2012] A.J. No. 1146 (Alta. Q.B.) — referred to

Quaintance Estate, Re (2006), 2006 ABCA 47, 2006 CarswellAlta 147, 21

E.T.R. (3d) 179, [2006] A.J. No. 111, 56 Alta. L.R. (4th) 6, 380 A.R. 160,

363 W.A.C. 160 (Alta. C.A.) — referred to

Schwartz v. Schwartz (1970), [1970] 2 O.R. 61, 10 D.L.R. (3d) 15, 1970 Cars-

wellOnt 243, [1970] O.J. No. 1438 (Ont. C.A.) — referred to

Schwartz v. Schwartz (1971), 20 D.L.R. (3d) 313, [1972] S.C.R. 150, 1971 Cars-

wellOnt 163, 1971 CarswellOnt 163F, [1971] S.C.J. No. 96, [1971] A.C.S.

No. 96 (S.C.C.) — referred to

Sherwood Steel Ltd. v. Odyssey Construction Inc. (2014), 2014 ABCA 320,

2014 CarswellAlta 1750, 59 C.P.C. (7th) 221, [2015] 3 W.W.R. 582, 38

C.L.R. (4th) 173, 5 Alta. L.R. (6th) 268 (Alta. C.A.) — referred to

Smith Estate, Re (1945), [1945] 3 W.W.R. 216, 1945 CarswellAlta 77 (Alta.

Dist. Ct.) — referred to

Smith Estate, Re (1946), [1946] 2 W.W.R. 734, 1946 CarswellAlta 53 (Alta.

C.A.) — referred to

Stekar v. Wilcox (2017), 2017 ONCA 1010, 2017 CarswellOnt 20164, 32 E.T.R.

(4th) 199 (Ont. C.A.) — referred to

Sutton v. Sutton (2009), [2010] W.T.L.R. 115, [2009] EWHC 2576, 12

I.T.E.L.R. 627 (Eng. Ch. Div.) — referred to

Turner Estate v. Bezanson (1995), 6 E.T.R. (2d) 282, 139 N.S.R. (2d) 296, 397

A.P.R. 296, 1995 CarswellNS 23 (N.S. S.C.) — referred to

Turner Estate v. Bezanson (1995), 8 E.T.R. (2d) 169, 143 N.S.R. (2d) 123, 411

A.P.R. 123, 1995 CarswellNS 61, [1995] N.S.J. No. 321 (N.S. C.A.) — re-

ferred to

Vout v. Hay (1995), 7 E.T.R. (2d) 209, 125 D.L.R. (4th) 431, [1995] 2 S.C.R.

876, (sub nom. Hay Estate, Re) 183 N.R. 1, (sub nom. Hay Estate, Re) 82

O.A.C. 161, 1995 CarswellOnt 186, 1995 CarswellOnt 528, [1995] S.C.J.

No. 58, EYB 1995-67432 (S.C.C.) — referred to


Weidenberger Estate, Re (2002), 2002 ABQB 861, 2002 CarswellAlta 1157, 47

E.T.R. (2d) 150, 324 A.R. 286, [2002] A.J. No. 1157 (Alta. Q.B.) — referred

to

Windsor v. Canadian Pacific Railway (2014), 2014 ABCA 108, 2014 Carswell-

Alta 395, [2014] 5 W.W.R. 733, 94 Alta. L.R. (5th) 301, [2014] A.J. No.

256, 371 D.L.R. (4th) 339, 56 C.P.C. (7th) 107, (sub nom. Windsor v.

Canadian Pacific Railway Ltd.) 572 A.R. 317, (sub nom. Windsor v.

Canadian Pacific Railway Ltd.) 609 W.A.C. 317 (Alta. C.A.) — referred to

deBalinhard Estate, Re (2014), 2014 SKQB 162, 2014 CarswellSask 384,

[2014] S.J. No. 341, 447 Sask. R. 172 (Sask. Q.B.) — referred to

776826 Alberta Ltd. v. Ostrowercha (2015), 2015 ABCA 49, 2015 CarswellAlta

155, [2015] A.J. No. 118, (sub nom. Ostrowercha v. 776826 Alberta Ltd.)

593 A.R. 391, (sub nom. Ostrowercha v. 776826 Alberta Ltd.) 637 W.A.C.


Statutes considered:

Adult Guardianship and Trusteeship Act, S.A. 2008, c. A-4.2

s. 85(1) — referred to

Rules considered:

Alberta Rules of Court, Alta. Reg. 124/2010

R. 7.3(1)(b) — considered

R. 7.3(3)(a) — considered

R. 7.3(3)(c) — considered

APPLICATIONS for summary judgment to address validity of documents re-

lated to disposition of property.

John E.S. Poyser, Ryan Gorlick, for Plaintiff

William Kenny, Q.C, Debra Curcio Lister, Ian Wilson (student-at-law), for

Defendants

K.G. Nielsen J.:

I. Introduction

1 In the later years of his life, Tette Bouma also known as Ted Bouma

(Tette), executed a number of documents relating to the disposition of his

property:

1. four separate beneficiary designations in the mid to late 1990s in

relation to certain insurance products in his name (the Beneficiary

Designations);

2. a will on April 17, 1998 (the 1998 Will);

3. a deed of gift on February 21, 2001 (the Deed of Gift);

Wasylynuk v. Bouma K.G. Nielsen J. 293

4. a further will on July 20, 2001 (the 2001 Will).

2 This matter has been under case management for several years. Both

the Plaintiff and the Defendants applied for Summary Judgment in rela-

tion to some or all of these documents. The Case Management judge di-

rected that the Defendants’ Summary Judgment Application proceed in

relation to the validity of the Deed of Gift, the 2001 Will and the Benefi-

ciary Designations. The Plaintiff’s Application was adjourned sine die,

subject to the Plaintiff’s ability to address the obverse of any issue in-

cluded in the Defendants’ Application. The Case Management judge di-

rected that the judge hearing the matter shall be entitled to declare that an

instrument is valid or invalid, or to direct that its validity shall be deter-

mined at trial.

II. Parties and Witnesses

3 Tette had seven children: Betty Ann Wasylynuk (Betty Ann), Bernie

Bouma (Bernie), Lori Lee Scheck (Lori Lee), Rick Bouma (Rick), Lindy

Hager (Lindy), Don Bouma (Don) and Jacquolyn Bouma (Jackie). Betty

Ann is the Plaintiff in this action. Bernie, Lori Lee, Rick and Lindy are

the Defendants and Applicants on this motion. Don and Jackie prede-

ceased Tette.

4 Darryl Ackroyd was a member of the Law Society of Alberta at all

material times and provided legal services in relation to the 1998 Will,

the Deed of Gift and the 2001 Will.

5 Wouter Peter Van Winssen, was a member of the Law Society of Al-

berta at all material times and provided legal services in relation to the

Deed of Gift.

6 Dr. Deon Ewald Erasmus and Dr. Stephanus Petrus Malan were doc-

tors at the clinic in Tette’s home town. They treated Tette from time to

time and provided Certificates of Competency around the time of Tette’s

execution of the Deed of Gift.

7 James Gordon Miller worked at an addictions treatment centre. In

1998, he provided addictions counselling services to Tette.

8 Brian Harvey Kroeger worked in the insurance industry. Over the

years, he provided insurance products to Tette.

9 Gary Dean Varty provided accounting services to Tette over the

years.

10 Dr. Kenneth Shulman and Dan Purdy provided expert reports on

Betty Ann’s behalf with respect to this matter.


III. Evidence

A. Nature of the Evidence Before the Court

11 Significant evidence was tendered on this Application. Bernie, Lori

Lee, Lindy and Rick filed separate Affidavits in support of the Applica-

tion. Bernie, Lori Lee and Rick were questioned on those Affidavits and

the resulting transcripts were before the Court.

12 Betty Ann did not file an Affidavit. However, she had been ques-

tioned for discovery and the complete transcript of that questioning is

appended as an exhibit to Lindy’s Affidavit.

13 Case Management Orders were made with respect to the examina-

tions of Mr. Ackroyd, Mr. Miller (both of whom were examined de

benne esse), Mr. Varty, Dr. Erasmus, Dr. Malan, Mr. Kroeger and Mr.

Van Winssen. The transcripts and exhibits from all such examinations

were before the Court. During the course of the examinations of these

witnesses, counsel raised certain objections. In argument on this Applica-

tion, counsel advised that they would not pursue the objections and,

therefore, any evidence tendered in relation to such questions was evi-

dence before the Court.

14 Dr. Shulman had provided an Affidavit appending his expert report

and he was examined on that Affidavit. Dr. Shulman’s report and his

evidence in relation to it were before the Court. The Defendants took no

issue with respect to Dr. Shulman’s qualifications.

15 Mr. Purdy had provided an expert report which was before the Court.

16 Certain records of the Provost Municipal Health Centre (the Hospital

Records) and the Provost Medical Centre (the Clinic Records) were re-

ferred to during the examinations of both Dr. Erasmus and Dr. Malan.

Those Hospital Records and Clinic Records regarding Tette were before

the Court on the Application.

B. Tette’s Background

17 Tette was born in Holland on July 21, 1930. He immigrated to Can-

ada. Tette had a Grade 7 education.

18 Tette and his wife had seven children, five of whom are the parties to

this litigation. He was predeceased by his wife in 1992, his son Don in

1995 and his daughter Jackie in 2004.

19 Tette resided and operated a butcher shop in Provost, Alberta for

many years. In 1980 he sold a 50% interest in the butcher shop to Bernie.

In the early 1990s, Tette sold the other 50% interest to Bernie and Don.


As a result, Bernie then owned 75% and Don owned 25% of the butcher

shop operation. When Don passed away in 1995, his 25% interest went

to Bernie. Tette retired in 1995.

20 Tette was a long term alcoholic. A Clinic Record dated March 1973

describes him as such. Lindy described Tette as a “binge drinker”. Betty

Ann also stated in questioning that Tette was a binge drinker. Both the

Hospital Records and the Clinic Records have indications of Tette con-

suming 26 oz. and on occasion 40 oz. of alcohol per day.

21 Over the years, Tette attended alcohol treatment centres. In the sum-

mer of 1998, Tette spent approximately three weeks at the Henwood

Treatment Centre (Henwood). He was described at that time as having

been a binge drinker for the previous six to seven years using 26 oz. per

day with three days to one week of abstinence in between.

22 Subsequent to his stay at Henwood, Tette spent time at two other

treatment facilities: Life’s Journey in California and Edgewood in British

Columbia. There were limited records from these treatment facilities

before the Court.

23 Tette resided alone in his home in Provost, except for a period in

2000 during which he resided at a senior’s facility known as Hillcrest

Lodge.

24 At all material times, Bernie, Lindy and Lori Lee resided in or about

Provost. They assisted Tette in his daily activities. This included caring

for him, ensuring that he was properly fed, taking him to the hospital and

treatment centres and other appointments, and cleaning him up when he

was on a binge.

25 On July 10, 1998, Tette executed an Enduring Power of Attorney (the

Power of Attorney) appointing Lindy and Lori Lee as his attorneys. The

Power of Attorney was prepared by Mr. Ackroyd. Subsequent to execu-

tion of the Power of Attorney, Lindy and Lori Lee essentially dealt with

all of Tette’s financial affairs. He did maintain a personal cheque book

and on occasion would sign his own cheques.

26 Tette passed away on February 3, 2007 after a relatively brief hospital

stay. Dr. Erasmus completed a Manulife Financial Proof of Death docu-

ment indicating that metastatic disease, primary source unknown, (can-

cer) was the condition directly leading to Tette’s death. An antecedent

cause was described as dementia which had existed for “many years”

prior to the date of death.


C. Medical Evidence

27 Medical records dating from 1972 were entered into evidence in this

matter.

28 The Clinic Records and Hospital Records contain entries by nurses

and doctors as they treated and cared for Tette. With the exception of two

minor matters, the Defendants admit the factual accuracy of both the

Clinic Records and the Hospital Records.

29 Tette attended upon physicians at the Provost Medical Clinic which is

situated next to the hospital. Initially, Dr. Hnatiuk was Tette’s family

doctor. Dr. Erasmus took over as Tette’s family doctor upon Dr. Hna-

tiuk’s retirement. Both Dr. Erasmus and Dr. Malan treated Tette from

time to time. Both had access to the Clinic Records and the Hospital

Records.

1. Clinic Records/Hospital Records

30 The Clinic Records and the Hospital Records are replete with refer-

ences to Tette’s struggles with alcoholism. Many of the Hospital Records

are also found in the Clinic Records. The bulk of these records cover the

period from the early 1990s to the date of Tette’s death. The following

tables document examples of entries of Tette’s struggles and both his

mental and physical conditions over the years.

Hospital Records

Date Entry

May 11, This man has been an alcoholic for many years.

1992 His wife died approximately four months ago.

Since then he has become depressed and drinking

on a regular basis. His family found him curled up

in the closet this morning.

July 25, The patient was admitted to try and sober him up.

1996 He has been on a drinking spree for the last eight

days and drank about a bottle of vodka daily as far

as we could collect. The longest he has been with-

out alcohol was about six or seven months a few

years ago. He was able to relate exactly where he

was and what he was doing.


Hospital Records

Date Entry

November The patient was admitted with a diagnosis of alco-

13, 1996 holism. He has consumed one 26 oz. of vodka daily

for five to six days. He has never reached sobriety

for years despite family support. His drying out pe-

riod also went completely uneventful and he was

eventually discharged in a sober condition and

again counselled about his drinking problem.

November This patient was brought in by his son again. He

14, 1996 has been drinking heavily for the last week or so

and has been quite a mess.

June 23, Altered mental status due to intoxication.

1997

Sometimes speaking with some clarity, other times

quite altered mental status.

July 6, 1997 Patient was “pouring sweat” - shaking and gross

jerky movements. States he feels he is going to lose

it if he “doesn’t get booze”.

March 24, Patient presents with a laceration of the left upper

1998 arm. Provisional diagnosis - laceration left upper

arm - alcoholic intoxication.

May 9, 1998 Admission diagnosis - acute alcoholism. This gen-

tleman was brought in by his son with a history

that he went on a drinking spree for the last six

days. He had about 40 oz. of alcohol daily.

May 10, No hallucinations.

1998

May Oriented - noted to be slightly confused.

11,1998

May 13, No sign of hallucinations - able to find way back to

1998 room well.

May 15, No hallucinations.

1998

May 18, States “I know I have to stay away from the booze.

1998 I have it in my head - I know that I need to quit

and so I can.”


Hospital Records

Date Entry

June 8, 1998 Admission - diagnosis - acute alcoholism. Patient

drunk and babbling incoherently and not making

sense. Keeps drinking, never eats and is most often

incontinent of stool and urine and requires someone

to physically shower and clean him up.

June 9, 1998 Wanting “a drink”.

June 10, Remains confused.

1998

June 11, Remains shaky and confused - continues to have

1998 trouble finding his room.

June 12, Needs reorientation to room.

1998

July 18, Admission - has been drinking alcohol for days ly-

1998 ing on couch. July 19, 1998

July 20, Spoke candidly re: death of son and also re: wife,

1998 and increased pressure on oldest son with business

and general responsibilities.

Patient receptive and remembered the conversation

with doctor.

July 21, Patient found lying on floor in room beside bed

1998 with pillow under his head. Patient states “I’m hid-

ing from the snipes [or snipers]”.

Later in the day - appears oriented today.

July 22, No confusion noted - alert and oriented - no hallu-

1998 cinations or shakiness.

July 23, No hallucinations - oriented and appetite good.

1998

July 24, Alert and oriented.

1998

Contract for antabuse discussed.

Patient able to verbalize use of drug and conse-

quences.

July 28, Admission - diagnosis alcoholism.

1998

Patient brought in by ambulance after taking some

alcohol while being on disulfiram.


Hospital Records

Date Entry

Provisional diagnosis - antabuse reaction due to al-

cohol intake.

Plan of action - keep patient in hospital under ob-

servation until arrangements can be made for a

caretaker to live at his home who could observe

him on a 24 hour basis. It was decided not to send

patient for detoxification or further management as

this has failed numerous times in the past.

July 29, Disoriented to time and place - did state that he got

1998 sick because he drank too soon after taking

medicine.

August 3, Patient left with son against doctor’s wishes.

1998

March 22, Admission - intoxicated.

2000

March 23, Patient oriented to person and place.

2000

Patient found with feet hanging over bed rails -

unable to ambulate on own.

March 24, Confused - asking where wife is.

2000

Patient seems oriented this evening.

March 25, Patient found with both legs over side rail. States is

2000 “hearing voices” and that he is “not crazy”.

Oriented to person, place and time.

Patient found in room with no clothes on - had

peed on himself.

Patient very confused.

March 26, Patient confused - thinks he is at home.

2000

March 27, Pleasant and cooperative this a.m. - mobilizing well

2000 on his own.

March 28, Appreciated the one on one - talked about old

2000 times. Later that day quiet and cooperative.

Needs to be reoriented to place.


Hospital Records

Date Entry

October 24, Brought in by ambulance. Patient found outside

2005 very intoxicated. Patient fell and injured nose. Pa-

tient hypothermic.

Diagnosis - alcoholism/hypothermia.

Patient remains intoxicated but can carry on a con-

versation.

Reoriented to place and time numerous times with-

in the last hour.

Patient refuses to have a housecoat.

Patient walking, hallucinations often but no evi-

dence of DTs.

January 10, Admission - this patient came in complaining of

2007 shortness of breath and feeling weak for the last

few weeks. It gradually got worse and now he is

also having a lot of pain in the lower left chest area

and it hurts a lot when he breathes. He has been

alcohol abusive for a long time and this did cause

some trouble for him in the long run. It is very

difficult to get any specific history out of Ted be-

cause his memory is really not the greatest. He has

a long history of alcohol abuse and then he started

having this dementia for quite a while as well.

Admission diagnosis - rib fracture - possible pneu-

monia.

January 25, Patient weak and sleepy. Responds to questions ap-

2007 propriately.

January 26, Answers questions appropriately.

2007

January 30, Refused breakfast.

2007

February 3, Patient pronounced dead.

2007


Clinic Records

Date Entry

March 8, Alcoholic - acute agitation.

1973

February 15, Mr. Bouma was unable to accompany his son on a

1995 trip to Disneyland with his family because of an

acute bout of alcoholism.

July 6, 1995 Drinking 40 oz. plus plus per day.

February 23, 2 day stay; inebriated, had fallen and lacerated arm

1998

2. Attendance at Treatment Centres

a. Henwood Treatment Centre

31 Tette was referred by Dr. Human to Henwood in May 1998. In that

referral, Dr. Human noted that Tette did not have memory loss or poor

concentration.

32 Tette attended at Henwood from June 13, 1998 to July 3, 1998.

33 Dr. Mausolf treated Tette while he was at Henwood. A Mini-Mental

Status Exam (MMSE) was conducted on Tette which resulted in a score

of 24 out of 30. Dr. Mausolf queried whether Tette suffered from early

Alzheimer’s, a stroke or alcohol damage and therefore referred him for a

CT scan of the brain. This was conducted and it was determined that

Tette suffered from mild global atrophy slightly greater than expected for

his age. Dr. Mausolf reported that Tette suffered from some impairment

of short term memory.

34 Mr. Miller was the addictions counsellor who dealt with Tette while

he was at Henwood. Mr. Miller testified that he would see Tette one-on-

one once per week and probably four or five times in group sessions

during the week. On Tette completing his time at Henwood, Mr. Miller

prepared a Treatment Summary which contained the following:

Assessment: The assessment was based on information gathered

through the assessment process and information provided by the re-

ferring party. Assessment revealed that Mr. Bouma has a long history

of drinking. In the last six to seven years, he has been binge drinking

for long periods using 26 oz. per day with three days to a week absti-

nence in between. He is suffering from short term memory loss and

may not remember the amount he drank.


Progress: Mr. Bouma has been confused about his whereabouts in

our building for the whole time he was here. He does not remember

conversations from one day to the next but confabulates well and this

is not picked up by some of the clients. He has attended all work-

shops and group sessions. He wavers from abstinence one day to “I

will just have one or two drinks on special occasions”. He often does

not remember ideas he talks about when asked about them the next

day. It is also very probable that Mr. Bouma does not remember the

number of drinks he has when drinking. As well, he is in denial about

the amount he drank in the past. He has developed an after care plan

that, when followed, may help him maintain sobriety or reduce his

drinking.

35 The Treatment Summary then made certain recommendations which

included Tette moving into a supervised lodge. The Treatment Summary

also notes that Tette had attended for alcoholism treatment at the Slim

Thorpe Treatment Centre in Lloydminster, Alberta on three occasions.

No records were provided with respect to Tette’s attendance at this treat-

ment facility. No one testified as to any particulars of Tette’s stay at Slim

Thorpe Treatment Centre.

b. Life’s Journey

36 Tette attended the Life’s Journey treatment facility in California.

Bernie deposed that he and Lori Lee determined that Life’s Journey was

not providing Tette with proper care and, therefore, Tette was moved to

Edgewood. No records with respect to Tette’s attendance at Life’s Jour-

ney were before the Court. No one testified as to any particulars of

Tette’s stay at Life’s Journey.

c. Edgewood

37 Tette attended the Edgewood treatment facility in Nanaimo, British

Columbia from May 6, 2000 to July 1, 2000. Very limited records from

this attendance were provided to the Court and no one testified as to

Tette’s time at Edgewood. From the limited records available, it appears

that Tette completed the program at Edgewood. He was diagnosed with

alcohol dependence and probably a degree of early mild alcohol induced

persisting dementia. He apparently participated in a 12 step program

while at Edgewood.


D. Dr. Shulman’s Opinion

38 Dr. Shulman was retained by Betty Ann to provide an expert report in

this matter. Counsel for Betty Ann provided certain documents to Dr.

Shulman and asked him a series of questions. She requested that Dr.

Shulman do a retrospective assessment of Tette’s mental capacity from

1997 to 2001.

39 Dr. Shulman did not know Tette and had never treated him. He re-

viewed the 1998 Will, the Deed of Gift, the 2001 Will, the Beneficiary

Designations, the Hospital Records, the Clinic Records and the tran-

scripts of the examinations of Dr. Malan, Dr. Erasmus, Mr. Van Winssen

and Mr. Miller.

40 Dr. Shulman answered the various questions posed of him. The fol-

lowing appears in the Summary and Opinion section of his report:

... Ted activated a Power of Attorney in 1998 that would allow his

daughters to manage his financial affairs. The medical records also

show that his family was involved in his personal and medical deci-

sions at that time. The medical records also show overwhelming evi-

dence that his condition did not abate and indeed persisted until his

death in 2007. By 1997 and certainly by 2001 he was likely incapa-

ble of higher level capacity such as the execution of a will, inter

vivos gift and major beneficiary designations. It is my clinical opin-

ion that Ted would have had great difficulty sorting out competing

claims, needs and consequences within a complex and conflictual

family environment (see Figure in Appendix) making it less likely

that he could reach the threshold for capacity. His memory, espe-

cially short term memory, judgment and insight were severely im-

paired according to multiple sources. It is very unlikely that he could

sustain a consistent understanding, appreciation and perspective with

respect to the relevant family issues and for the consequences of exe-

cuting the legal documents of 1997 and 2001. This is what you

[counsel for Betty Ann] refer to as a “common field of view”.

. . .

There are three aspects of Ted’s chronic alcoholism that are relevant

to understanding the concerns about his capacity to execute the legal

documents in question. Chronic alcoholism can lead to repeated epi-

sodes of acute intoxication and withdrawal. Acute intoxication of

course impairs judgment and the full range of cognitive functions

necessary for mental capacity. Alcohol withdrawal is characterized

by perceptual abnormalities such as hallucinations as well as diffuse

cognitive impairment and agitation complicated by the inevitable

craving for alcohol. Furthermore, chronic alcoholism causes perma-


nent brain damage and cognitive impairment as illustrated in this

case, affecting memory and especially short term memory, a phe-

nomenon known as Korsakoff’s syndrome. Korsakoff’s syndrome is

caused by a thiamine deficiency and toxic brain damage associated

with chronic alcoholism. These individuals have severe memory def-

icits and associated confabulation. Confabulation is the invention of

false memories as a form of compensating for these deficits.

Moreover, his chronic and severe alcoholism and cognitive impair-

ment made him extremely susceptible to any influence that may have

been exerted (see Figure in Appendix). The Figure illustrates how

much more easily Ted could have crossed over into the realm of “un-

due influence” as a result of this vulnerability. Of course, I leave it

entirely to the Court to determine whether such influence was indeed

exerted at any of the relevant times and to make the ultimate determi-

nation of the questions of undue influence.

E. Documents in Dispute

1. The 1998 Will

41 On April 17, 1998, Tette executed the 1998 Will. It was prepared by

Mr. Ackroyd and he was one of the witnesses thereto.

42 A Case Management Order has directed that in the event there is a

finding that neither the Deed of Gift nor the 2001 Will is valid, there will

then be a determination as to the validity of the 1998 Will. Therefore, the

validity of the 1998 Will is not before me on this Summary Judgment

Application. However, the 1998 Will is relevant as narrative from the

perspective of the family history and involvement of various parties and

witnesses, and with respect to Tette’s apparent intentions over time.

43 The 1998 Will provided that Bernie and Lindy were Tette’s personal

representatives. The operative portions of the 1998 Will provide:

1. I hereby revoke all Wills and Testamentary dispositions of every

kind or nature heretofor made.

. . .

4. I give devise and bequeath all my property of every nature and

kind and wheresoever situate, including any property over which I

may have a general power of appointment, to my said Trustees upon

the following trusts, namely:

. . .

(c) to transfer to my son, Bernie Bouma, all my inter-

est and shares in my holding company, Tette


Bouma Holdings Ltd. for his sole use and enjoy-

ment absolutely.

(d) to transfer the rest and residue of my estate

equally, share and share alike, amongst my six (6)

children, Bernie, Linda, Rick, Betty Ann, Jackie

and Lori Lee; provided however, Betty Ann’s

share shall be held and kept invested by my Trust-

ees who shall provide the income therefrom to

Betty Ann in the form of an annual payment and

upon her death, the capital shall go to her children.

However, if she divorces and terminates her rela-

tionship with her husband, Pat, or if he dies, then

she shall be entitled to her entire share.

2. Deed of Gift

44 Tette executed the Deed of Gift on February 21, 2001. A copy of the

executed Deed of Gift along with all Certificates appended thereto is at-

tached to these Reasons for Judgment as Schedule A.

45 Mr. Ackroyd testified that he had provided various legal services to

Tette over the years. These included facilitating real estate transactions,

and drafting and overseeing execution of wills including the 1998 Will,

the Deed of Gift and a power of attorney. Mr. Ackroyd was examined on

three separate occasions with respect to his involvement with Tette and

the preparation of the Deed of Gift. It was not until his third examination

that all of the files from his former law firm were available for his re-

view. While Mr. Ackroyd’s memory of the events in relation to Tette

was lacking on many points due to the passage of time, he did have some

specific recollections of his involvement with Tette and he was able to

reconstruct events based on a review of his files.

46 Mr. Ackroyd testified that he knew Tette had a problem with alcohol.

He described Tette as being “on the wagon and off the wagon from time

to time”. He stated that as a result of Tette’s alcohol problem, he was

probably more diligent in visiting with Tette and asking him questions.

He was always satisfied that Tette was quite capable of understanding

what was going on.

47 Bernie deposed that in 2000 while driving Tette home from

Edgewood, Tette advised him that he did not want to leave anything

from his estate to Betty Ann. Bernie stated that he did not think that was

right and that he told Tette that if he was going to do this, he should talk

to a lawyer. In the fall of 2000, Bernie discussed this with Mr. Ackroyd.


That discussion was as to steps that could be taken to address problems

that might arise within the family upon Tette’s passing.

48 Mr. Ackroyd stated he had a specific recollection of meeting with

Tette in Mr. Ackroyd’s office in Provost to discuss the Deed of Gift. He

stated that Tette brought up the idea of the Deed of Gift and that Mr.

Ackroyd specifically questioned Tette on matters such as the possibility

that Bernie would decide not to give anything to anyone else, that all of

his children except Bernie would be cut out of his estate, and that Tette

should be concerned to have sufficient funds to look after his own wel-

fare. Tette responded that he trusted Bernie. Further, Mr. Ackroyd indi-

cated he spent time with Tette and reviewed with him the types of assets

which he owned. He stated that it was “quite likely” that he discussed

with Tette whether he was under any duress or influence from Bernie.

Mr. Ackroyd was satisfied that this was not the case.

49 Mr. Ackroyd testified that when he met with Tette and talked to him

about the Deed of Gift, Tette did not appear to have been drinking. Fur-

ther, he described Tette as knowing what he was doing and what he

wanted to do. Tette was “very clear” on these points. Mr. Ackroyd de-

scribed Tette as being “his own man” who could not be pushed around.

Tette told Mr. Ackroyd that he was upset about one of his children suing

another one. Tette was convinced that there would be litigation in rela-

tion to his estate. He expressed these matters as reasons for giving every-

thing to Bernie.

50 In 2001, Mr. Ackroyd attended from Edmonton to his Provost office

every two weeks. When he was initially examined in relation to the Deed

of Gift, it was his belief that he had met with Tette and taken instructions

with respect to the Deed of Gift and then returned with the document

which he drafted in hand two weeks later. However, upon review of the

documents, Mr. Ackroyd reconstructed that it appeared that he had met

with Tette and drafted the Deed of Gift on February 16, 2001. He then

faxed the draft to his assistant in Edmonton for preparation. The docu-

ment was then faxed back to Mr. Ackroyd in Provost.

51 Mr. Ackroyd sent the Deed of Gift to Tette’s accountant, Mr. Varty,

for comments.

52 Mr. Ackroyd was concerned that he could be in a conflict of interest

with respect to this matter as he had acted for both Bernie and Tette pre-

viously. He was also of the view that given Tette’s struggles with alco-

hol, it would be beneficial to obtain a Certificate of Capacity from a

doctor.


53 Mr. Ackroyd contacted Mr. Van Winssen to provide independent le-

gal advice to Tette with respect to the Deed of Gift. As well, arrange-

ments were made for Tette to attend upon his doctor to obtain a Certifi-

cate of Competency.

54 Mr. Van Winssen testified that he had a personal memory of his

meetings with Tette and that his notes taken contemporaneously with the

meetings filled in his memory.

55 Mr. Van Winssen confirmed that his only transaction with Tette was

his provision of independent legal advice in relation to the Deed of Gift.

56 Mr. Van Winssen was contacted by Mr. Ackroyd on February 16,

2001 with respect to this matter. Mr. Ackroyd advised that he had pre-

pared certain documents and that the client whom he wished to send to

Mr. Van Winssen for independent legal advice wanted no assets in his

name. Mr. Van Winssen made a note that the “will says the same”. Mr.

Van Winssen’s notes indicate that this was a rush meeting, but he was

not able to testify as to why there was a rush.

57 He stated that his understanding was that Mr. Ackroyd had prepared

the documents, Mr. Ackroyd was acting for Tette, and Mr. Van Winssen

was to make sure that Tette understood the nature of the document that

he was signing.

58 After the initial contact from Mr. Ackroyd, Mr. Van Winssen was

contacted by both Bernie and Lori Lee. Mr. Van Winssen’s notes indi-

cate that Bernie advised: “He and dad had arrangement, but to avoid con-

troversy and sister married to RCMP, everything goes to Bernie”. Lori

Lee advised Mr. Van Winssen that she was bringing her father in to meet

with him.

59 Mr. Van Winssen spent 20 to 30 minutes reviewing the matter with

Tette on February 16, 2001. Lori Lee was excluded from the meeting.

Mr. Van Winssen’s notes of his meeting with Tette read as follows:

• Wants to get things straightened;

• Trusts Bernie;

• Laurie Stang, daughter, brought in;

• His idea, talked about this;

• Can’t remember if he went in to see Darryl Ackroyd on his

own;

• Bernie will take care of this - he realizes he doesn’t have to

give it, trusts him to give this;

• 7 kids, 6 now;


• Involves an awful lot of money;

• Wants this settled now;

• Wants everyone equal except Bernie, Bernie is to get shop

and slaughter house;

• Other stuff equally between children;

• Couldn’t say why he just doesn’t do this with will;

• Doesn’t trust one daughter.

60 Mr. Van Winssen stated that the purpose of the meeting with Tette

was to review the Deed of Gift and he therefore assumed that the docu-

ment was on the table in his discussions with Tette.

61 Mr. Van Winssen was aware that arrangements had been made for

Tette to see a doctor on February 16, 2001. He made arrangements to

meet with Tette again on February 21, 2001 after he had seen the doctor.

When Mr. Van Winssen met with Tette on February 21, 2001, he had

reports back from the two doctors that Tette had seen, namely, the Certif-

icates of Competency. He assumes that Tette’s daughter brought the Cer-

tificates of Competency to him on February 21, 2001. Mr. Van Win-

ssen’s notes from the meeting on that date read as follows:

• Saw Ted alone;

• Confirmed instructions;

• He realizes Bernie could keep everything legally, but is mak-

ing this bequest anyway to prevent squabble over will;

• Daughter - Linda Stang brought in.

62 Mr. Van Winssen testified that he had an obligation to confirm that

Tette knew what he was doing. He confirmed this through his own activ-

ities as a lawyer. He was, however, quite happy to have the doctors’ Cer-

tificates. While it did not hurt to have a second opinion, it was primarily

his opinion that Tette understood what he was doing.

63 Mr. Van Winssen was not told of any issues related to Tette’s alco-

holism, health or memory.

64 Mr. Van Winssen had never been involved in his practice with docu-

ments similar to the Deed of Gift. He did not discuss other options with

Tette. He did not believe he had a discussion with Tette as to the validity

of the Deed of Gift.

65 Lori Lee took Tette to the Provost Medical Clinic on February 16,

2001. Initially, he saw Dr. Erasmus that day. Dr. Erasmus did not have

an independent recollection of the events of February 16, 2001 but he


had made notes which he was able to interpret. Dr. Erasmus’ notes from

that day read as follows:

• Brought in by daughter (Lori Lee);

• Wants to know if he is competent to make his will;

• Still taking alcohol - yesterday was last time;

• Again he said he wants to stop - discussed that;

• Orientation seems okay apart from time;

• Knows what he is in for;

• He explained to me what he wants to do and why - compre-

hension seems okay;

• Memory (short term) is very poor;

• Mini mental good apart from memory.

• Conclusion: I think he will forget that he was here but I do

think that he knows what he is doing and why he is doing it

66 Dr. Erasmus had an MMSE conducted on Tette by a member of the

Clinic. Tette scored 23 out of 30 on this exam.

67 Dr. Erasmus stated that he was not aware of the legal test to make

either a will or a deed of gift. He stated that if Tette was being asked to

sign a deed of gift, that would be news to him. He stated he could not

remember seeing the Deed of Gift and he would not have known the

difference between a will and the Deed of Gift.

68 Dr. Erasmus stated that his role as he saw it was not to decide what

Tette was going to do and the implications of it. His role was “basically

do I think that he can make a decision by himself and does he know what

the decision is”.

69 Dr. Erasmus signed one of the Certificates of Competency which are

part of Schedule A hereto.

70 Dr. Erasmus sought a consultation with Dr. Malan on February 16,

2001. His question to Dr. Malan was: “Do you think this patient is under-

standing what he is doing and is capable of taking care of his will etc.?”

71 Dr. Malan had previous contact with Tette at both the clinic and the

hospital from as early as 1998. Dr. Malan was aware that Tette had been

diagnosed with both alcoholism and dementia. While Tette was not Dr.

Malan’s patient, he had seen Tette on several occasions.

72 Dr. Erasmus had seen Tette first on the day in question for the pur-

poses of a capacity assessment. Dr. Malan was then asked to provide a

second opinion. Dr. Malan had no independent recollection of the capac-


ity assessment of Tette outside of his notes. Dr. Malan’s notes prepared

on February 16, 2001 read as follows:

• Patient and daughter (Lori Lee);

• History of wanting to change his will;

• Known alcoholic;

• Currently on no medication;

• Assessment

• Orientation x 2

• Mini mental exam 23/30

• Able to explain why he wants will changed

• Easily distracted from topic

• Poor short term memory

• Reasoning about change of will seems to be

appropriate

• Expects problems from one daughter who is married

to an RCMP officer;

• Conclusion: patient is mentally fit to change his will.

73 Dr. Malan confirmed that Lori Lee was present throughout the assess-

ment. He had no contact with any lawyer involved in this matter and did

not receive a copy of either a will or the Deed of Gift, nor was he pro-

vided with any information as to the legal test for capacity.

74 Dr. Malan stated that the idea of the capacity assessment was: “So

does the patient understand what he is doing, and is he actually expres-

sing a choice, something that he wants to do?” He would be attempting

to determine if the patient appreciates what he is requesting and if there

is some reasoning behind that. Knowing Tette’s history, he would have

made sure that Tette was not under the influence of alcohol at the time of

the assessment.

75 Dr. Malan conducted his own MMSE. Tette scored 23 out of 30. Dr.

Malan stated that a MMSE is not a test about whether an individual can

do a will. The results on the two MMSEs conducted indicated that Tette

definitely had problems with his cognition but Dr. Malan noted that it is

necessary to differentiate between his cognitive status and his capacity.

Dr. Malan stated: “You can have dementia and you can still have the

capacity to make decisions”.

76 Dr. Malan could not recall what Tette had said about the reason for

changing his will. Dr. Malan did confirm that the Deed of Gift was defi-


nitely not made available to him. Dr. Malan was not advised of Tette’s

family members, nor of the nature of his assets. This was the first time

Dr. Malan had dealt with a patient seeking assistance to give away every-

thing that he owned.

77 Dr. Malan estimated that he would have spent 20 to 30 minutes with

Tette in conducting the assessment.

78 As to the conclusion in his notes which led to him signing one of the

Certificates of Competency in Schedule A, Dr. Malan testified to the fol-

lowing. He was trying to respect his patient’s choice as to what he was

doing in relation to disposing of his assets. The point was not whether

Dr. Malan agreed or disagreed with what Tette was doing but, rather,

whether Tette wanted to do what he was doing and could provide reasons

for doing so. He stated that Tette was quite adamant that he wanted to do

this and, from a professional point of view, Dr. Malan would not have

proceeded if he felt that Tette was being forced in his actions or was

being told what to say. Dr. Malan saw his task as being to medically

evaluate Tette’s capacity and not to evaluate the wisdom of what he was

doing. He stated he was “also not evaluating his medical status, just his

capacity”.

79 Dr. Malan did acknowledge that there was a real risk that given

Tette’s short term memory issues, if a list of possible outcomes related to

the Deed of Gift were put to Tette, he may not hold all of those possibili-

ties in his mind.

3. 2001 Will

80 On July 20, 2001, Tette executed the 2001 Will. It was prepared by

Mr. Ackroyd and witnessed by him and Lori Lee. The 2001 Will desig-

nated Bernie and Lindy as Tette’s personal representatives. The operative

portions of that Will provide:

1. I hereby revoke all prior Wills and Codicils.

. . .

5. I give, devise and bequeath all my property of every nature and

kind and wheresoever situate, including any property over which I

may have a general power of appointment, to my said Trustees upon

the following trusts, namely:

. . .

(c) To transfer the rest and residue of my estate to my son,

Bernie Bouma for his sole use and enjoyment absolutely.


81 Mr. Ackroyd’s file contained a note which reads: “Bernie Bouma - do

new will for Ted everything goes to Bernie”.

82 Mr. Ackroyd testified that he explained to Tette that he did not think

that the 2001 Will was required because of the Deed of Gift, but he

thought Tette “wanted everything nailed down” and he accordingly pre-

pared the 2001 Will so it would correspond with the Deed of Gift. He

stated this was “just to tidy up everything”.

83 Mr. Ackroyd testified that he would have satisfied himself that Tette

was sober when the 2001 Will was executed and he would have reviewed

the document with Tette. Mr. Ackroyd concluded that Tette understood

what he was doing and understood the consequences of what he was

signing. If he had not been so satisfied, he would not have proceeded

with the signing of the 2001 Will as, in his view, it was not a necessary

document. Mr. Ackroyd saw no difficulty in Lori Lee witnessing the

2001 Will as she was not a beneficiary under the document.

4. Beneficiary Designations

84 Bernie received payouts upon Tette’s death pursuant to four Benefici-

ary Designations in relation to various insurance products held by Tette

at the date of his death. The four Beneficiary Designations identifying

Bernie as beneficiary were:

Insurance Product Date of Beneficiary Payout on Tette’s

Designation death

Independent Order of Unknown (product $15,147

Foresters Certificate was issued in 1972)

No.: [366# omitted]

Manulife Financial March 18, 1997 $1,498,511

Contract No. [665#

omitted]

Manulife Financial March 12, 1998 $44,264

Contract No. [772#

omitted]

Maritime Life Assur- December 28, 1999 $734,791

ance Company Con-

tract No.: [504#

omitted]

85 Bernie received the payments in relation to these insurance products

following Tette’s death.


86 Mr. Kroeger was involved in Tette obtaining the two insurance prod-

ucts from Manulife Financial and the one insurance product from the

Maritime Life Assurance Co.

87 Mr. Kroeger had spent time in Provost in the 1970s. He knew Tette

from the butcher shop. He would see him several times a week. Mr.

Kroeger left Provost in 1980. He developed a relationship with Bernie

and Don in 1986. Mr. Kroeger’s relationship with Tette started when he

was dealing with the payout of insurance proceeds to Tette following

Don’s death. Thereafter, Mr. Kroeger was involved in placing insurance

products for Tette’s benefit.

88 Mr. Kroeger testified that he had sustained a head injury when he was

a child and this affected his memory. Further, while Mr. Kroeger had at

least portions of his file available when he was examined, he had a lim-

ited memory with respect to matters due to the passage of time. Mr.

Kroeger testified that he was not a “note person”. Therefore, there are

few notes on the file produced as to his meetings and other dealings with

Tette.

89 The file which Mr. Kroeger produced contained various application

documents for insurance products. Three such application documents in-

dicate that at the time of signing same, the named beneficiary was Tette’s

“estate”. One application document indicates that the named beneficiary

is “all my children equally”.

90 Mr. Kroeger explained that often in preparing documents, the appli-

cant’s estate will be shown as the beneficiary. This, however, could

change at any time and often did so once the insurance product was ap-

proved and professionals such as accountants and tax lawyers acting for

the applicant became involved in planning issues. He stated that once the

life insurance product was approved, opportunities were opened up.

91 With respect to the Beneficiary Designation dated March 18, 1997,

Mr. Kroeger stated that the change of beneficiary to Bernie was made at

Tette’s request.

92 With respect to his dealings with Tette, Mr. Kroeger testified that

Tette “was making the decisions” with respect to the insurance products.

Mr. Kroeger never had any indication of alcohol or alcohol use in any of

his meetings with Tette. Mr. Kroeger was of the view that in his dealings

with Tette in the late 1990s, he was the “same strong person” as Mr.

Kroeger remembered him being during his dealings with Tette in the

1970s when he was buying meat at the butcher shop. He did not recog-

nize any change in Tette’s demeanour from when he had known him ear-


lier. He had no doubt that Tette’s mind was functioning and he knew

what he was doing. He was not aware of anyone pressuring Tette. He

made a notation to Gary Varty: “Unless Mr. Bouma is onside with this,

this isn’t going to go”.

93 Mr. Purdy was retained by Betty Ann as an expert to provide an opin-

ion with respect to the Tette’s ostensible signature on the March 18, 1997

Beneficiary Designation. Mr. Purdy compared the signature on this Ben-

eficiary Designation with specimen signatures that were known to be

Tette’s. Mr. Purdy’s conclusion was:

There is some evidence that suggests the writer (Ted Bouma) of the

specimen signatures on items [documents identified] may not have

written the questioned signature on [the Beneficiary Designation

dated March 18, 1997].

94 Mr. Purdy was not questioned on his expert report.

95 Very limited documentation was available with respect to the Benefi-

ciary Designations dated March 12, 1998 and December 12, 1999.

96 Similarly, very limited documentation was available with respect to

the insurance product with the Independent Order of Foresters. This

product appears to have been issued in March 1972. A payout to Bernie

dated April 9, 2007 confirms total proceeds of $15,147. No documenta-

tion or testimony was provided as to when or how Bernie came to be the

named beneficiary on this insurance product.

F. Events Subsequent to the Deed of Gift

97 Subsequent to the execution of the Deed of Gift, steps were taken to

dissolve Tette Bouma Holdings Ltd. Mr. Varty was consulted in this pro-

cess. The assets which stood in Tette’s name as at February 21, 2001

were eventually transferred to Bernie.

98 Bernie testified that subsequent to the execution of the Deed of Gift,

he made sure that Tette had money to live on from 2001 until his death.

99 Bernie testified that he paid the taxes arising in relation to the Deed of

Gift.

100 Subsequent to Tette’s death, Bernie made what he referred to as

“gifts”. He paid $150,000 to Rick and $70,000 to each of Rick’s three

children. Rick provided a release of Bernie both in his personal capacity

and as the personal representative on Tette’s estate in relation to these

payments.


101 Bernie paid Lori Lee the sum of $430,000, Lindy the sum of

$430,000 and Lindy’s husband, Dean Hager, the sum of $150,000. Re-

leases were not sought from Lori Lee, Lindy or Dean Hager.

102 Bernie offered to pay $70,000 to Betty Ann and $70,000 to each of

her three children. These payments were offered in exchange for a re-

lease from Betty Ann. Betty Ann refused to accept the payments and

provide a release. Therefore, the payments were never made

103 Betty Ann estimates that the value of Tette’s estate, including the

payouts pursuant to the Beneficiary Designations was in the order of

$3,000,000 to $3,200,000. The Defendants do not accept this as the value

of the estate. Pursuant to a Case Management Order, tracing of any assets

has been deferred pending the outcome of this Application.

IV. Issues

104 The Defendants apply to the Court to summarily dismiss Betty Ann’s

claim that documents signed by Tette disposing of his property are inva-

lid. This requires the Court to determine the following issues:

A. Is the Deed of Gift valid?

B. Is the 2001 Will valid?

C. Are the Beneficiary Designations valid?

D. Is Summary Judgment appropriate?

V. Test for Summary Judgment

105 Rule 7.3 of the Alberta Rules of Court, Alta Reg 124/2010 provides

in part:

7.3(1) A party may apply to the Court for summary judgment in re-

spect of all or part of a claim on one or more of the following

grounds:

... (b) there is no merit to a claim or part of it...

... (3) If the application is successful the Court may, with

respect to all or part of a claim, ... do one or more of the

following:

(a) dismiss one or more claims in the action ...;

... (c) if judgment is given for part of a claim, refer the

balance of the claim to trial or for determination by a refe-

ree, as the circumstances require.

106 The test for summary judgment requires the Court to examine the re-

cord to see if a disposition that is fair and just to the parties can be made


on the existing record, recognizing that a full trial is not always the sensi-

ble and proportionate way to resolve disputes. This will be the case if the

process: (1) allows the judge to make the necessary findings of fact, (2)

allows the judge to apply the law to the facts, and (3) is a proportionate,

more expeditious and less expensive means to achieve a just result. With

respect to the substantive issues, the court must ask whether there is any

issue of merit that genuinely requires a trial or, conversely, whether the

claim or defense is so compelling that the likelihood it will succeed is

very high such that it should be determined summarily. An issue of merit

is established when the non-moving party’s case discloses a genuine is-

sue of a potentially decisive material fact in the case which cannot be

summarily found against the non-moving party on the record revealed by

the fair and just summary process: Hryniak v. Mauldin, 2014 SCC 7

(S.C.C.) at para 49, [2014] 1 S.C.R. 87 (S.C.C.), Windsor v. Canadian

Pacific Railway, 2014 ABCA 108, [2014] A.J. No. 256 (Alta. C.A.) at

paras 12, 16, Sherwood Steel Ltd. v. Odyssey Construction Inc., 2014

ABCA 320 (Alta. C.A.) at paras 7-8; P. (W.) v. Alberta, 2014 ABCA 404

(Alta. C.A.) at para 26; 776826 Alberta Ltd. v. Ostrowercha, 2015

ABCA 49 (Alta. C.A.) at paras 9-11, (2015), 593 A.R. 391 (Alta. C.A.).

107 The mere assertion of a position by the non-moving party in a plead-

ing or otherwise, or the mere hope of the non-moving party that some-

thing will turn up at a trial, does not suffice to prevent summary judg-

ment: 776826 Alberta Ltd. v. Ostrowercha, at para 11.

VI. Analysis

A. Is the Deed of Gift valid?

1. Parties’ Positions

a. Defendants

108 The Defendants argue that Tette’s reasoning in making all of the be-

quests and designations is clear from the evidence: he expected that

Betty Ann would fight over his estate and he wished to avoid this. His

intention was consistent over the years in question.

109 The Defendants submit that the only evidence putting in question

Tette’s competence to execute the documents is that of Dr. Shulman. His

evidence is based on hearsay and anecdotal material. Dr. Shulman never

met or examined Tette, nor did he consider the evidence of the family

members. All of the other evidence (Bernie, Lori Lee, Lindy, two medi-

cal doctors, an independent lawyer and a very experienced solicitor who


had previously interacted with Tette) supports the conclusion that al-

though Tette was a binge drinker, he had periods of sobriety and compe-

tence and he knew what he was doing at the relevant times, insisted upon

doing it, articulated his reasoning and understood the consequences.

110 The Defendants submit that the suggestion that Tette was subject to

undue influence is supported only by innuendo and speculation, not evi-

dence. Although Bernie had complete control over Tette’s assets, he

dealt with Tette’s funds responsibly and disbursed them in a reasonable

manner to siblings and their children following Tette’s death. He at-

tempted to provide $280,000 to Betty Ann and her children.

b. Betty Ann

111 Betty Ann points to the fact that Tette was a long time alcoholic.

Medical professionals noted at times over the years that he was a persis-

tent binge drinker, was unable to take care of himself, had periods of

depression, confusion, short-term and long-term memory loss, disorienta-

tion and hallucinations, as well as signs of some cerebral atrophy. In ad-

dition to cancer, one of the causes of his death in 2007 was indicated as

being “dementia”, with the interval between onset and death being

“many years”.

112 Betty Ann notes in her Brief on this Application that after Don died in

1995, Tette transferred Don’s house to Lori Lee and made modest equal

cash gifts to each of his surviving six children therefore exhibiting a gen-

eral intention to treat all of his children in a similar fashion.

113 Betty Ann notes that Mr. Ackroyd and Bernie were personal friends.

The 2001 Deed of Gift idea developed out of a meeting between Bernie

and Mr. Ackroyd on September 28, 2000. Bernie was the client name on

the file Mr. Ackroyd initially opened. The 2001 Deed of Gift and the

2001 Will were generated on this file. Mr. Ackroyd was working on es-

tate planning to transfer all of Tette’s assets to Bernie. His notes do not

reflect contact with Tette. Alternatives, like an alter ego trust, were not

put to Tette. Bernie called Mr. Van Winssen to say that he and Tette had

an arrangement, but to avoid controversy - referencing a sister married to

an RCMP officer (Betty Ann) - everything would go to Bernie.

114 She argues that Bernie, Lori Lee and Lindy enabled Tette’s alcohol-

based lifestyle and he was completely dependent on them to keep him

out of a personal care home. If he had been placed in a personal care

home, his drinking would have come to an end.


115 Betty Ann submits that Bernie owed Tette a significant amount of

money at the outset of 2001, including an inter-corporate loan between

their holding companies. The 2001 Deed of Gift not only gave Bernie all

of Tette’s assets; it also eliminated the debts Bernie owed his father. The

balance of a loan to Lindy and her husband was never collected.

116 Betty Ann points to detailed accounting records kept by Lindy and

Lori Lee in support of her position that improper transfers of Tette’s

wealth took place.

117 Betty Ann notes that Dr. Malan testified that Tette would do anything

for alcohol. He would probably have signed any document that was put

in front of him. Dr. Erasmus and Dr. Malan did not have the 2001 Deed

of Gift when examining Tette. Tette spoke about changing his will.

Neither doctor knew the legal test to be applied for capacity. Dr. Erasmus

would likely have sent Tette to a geriatrician to conduct an assessment if

he knew what Tette was being asked to sign. Betty Ann submits that Dr.

Erasmus was completely cavalier in making this capacity assessment and

two assessments in relation to Tette obtaining life insurance and a

driver’s licence.

118 Mr. Miller spent three weeks with Tette in 1998. Tette was sober

while in treatment, yet he was confused about his whereabouts, had poor

short-term memory and confabulated well.

119 Betty Ann submits that Mr. Van Winssen was forced to be hopelessly

brief in the time he could spend with Tette. No one told Mr. Van Win-

ssen that Tette was a long term alcoholic with possible Korsakoff Syn-

drome or dementia as far back as 1998. It was not true that the 1998 Will

said the same thing as the Deed of Gift, as his notes indicate Tette told

him.

120 Betty Ann argues that the evidence does not support a finding that

Tette had, at the relevant times, the degree of understanding required for

a deed of gift or a will. Further, Bernie obtained a benefit from Tette by

voluntary donation and therefore he must establish that Tette did so vol-

untarily and deliberately, knowing what he was doing. He has not done

so.

2. Law

121 A rebuttable presumption of a resulting trust applies to gratuitous

transfers from ageing parents to their adult children. The presumption

must be rebutted on the civil standard of a balance of probabilities. The

question is whether the donor parent intended to make a gift of the bene-


ficial interest in the accounts upon his death to the child or whether he

intended that the child hold the assets in the accounts in trust for the

benefit of his estate to be distributed according to his will: Pecore v.

Pecore, 2007 SCC 17 (S.C.C.) at paras 4, 24-25, 44, 55, [2007] 1 S.C.R.

795 (S.C.C.).

122 The types of evidence that should be considered in ascertaining a

transferor’s intent will depend on the facts of each case. Evidence of in-

tention arising subsequent to a transfer may be considered if it is relevant

to the intention of the transferor at the time of the transfer: Neazor v.

Hoyle (1962), 32 D.L.R. (2d) 131 (Alta. C.A.), cited with approval in

Pecore at para 57. In upholding the finding of a gift, the majority of the

Supreme Court in Pecore noted evidence that the father preferred the

donee daughter over her siblings, and considered subsequent conduct by

the donor.

123 A donor must have sufficient mental capacity to make such a gift. If

the effect of a gift is to dispose of the donor’s only asset of value and

pre-empt the devolution of his estate under his will or on his intestacy,

the degree of understanding required is as high as that required for a will:

Beaney, Re, [1978] 1 W.L.R. 770, [1978] 2 All E.R. 595 (Eng. Ch. Div.);

MacGrotty v. Anderson, [1995] B.C.J. No. 1857 (B.C. S.C.) at para 20,

(1995), 9 E.T.R. (2d) 179 (B.C. S.C.).

124 Similarly, the law on unconscionable procurement requires that a per-

son who obtains a benefit from another by voluntary donation must es-

tablish that the donor did so voluntarily and deliberately, knowing what

he was doing: Kinsella v. Pask (1913), 28 O.L.R. 393, 12 D.L.R. 522

(Ont. C.A.); Fairchild v. Mitchell (1959), 43 M.P.R. 9, 19 D.L.R. (2d)

521 (N.S. C.A.).

125 When the validity of a will is challenged on the basis that the testator

lacked testamentary capacity, the propounder has the onus to prove that:

1) the testator understood what he was doing, in other words the na-

ture and quality of the act;

2) he was sufficiently clear in his understanding and memory to

know, on his own, and in a general way:

a. the nature and extent of his property,

b. the persons who ordinarily might be expected to benefit, and

c. the testamentary provisions he was making, including the ex-

tent of what was being given to each beneficiary and the na-

ture of the claims of others who were being excluded;


3) he was capable of appreciating these factors in relation to each

other, and forming an orderly desire as to the disposition of his

property.

Banks v. Goodfellow (1870), L.R. 5 Q.B. 549, 39 L.J.Q.B. 237 (Eng.

Q.B.); Kapacila Estate v. Otto, 2010 SKCA 85 (Sask. C.A.) at paras 33-

34, (2010), 359 Sask. R. 84 (Sask. C.A.), citing Schwartz v. Schwartz

(1970), 10 D.L.R. (3d) 15 (Ont. C.A.) at 32, aff’d [1972] S.C.R. 150

(S.C.C.); J MacKenzie, Feeney’s Canadian Law of Wills, 4th ed,

Looseleaf (LexisNexis Canada, 2000) at s 2.6.

126 In the case of a gift, this test for capacity applies. As well, the donor

must be able to appreciate the risk of impoverishment of the donor and

any dependents during the life of the donor: Sutton v. Sutton, [2010]

W.T.L.R. 115, [2009] EWHC 2576 (Eng. Ch. Div.) at para 27; Mathieu

v. St Michel, [1956] S.C.R. 477, 3 D.L.R. (2d) 428 (S.C.C.).

127 Knowing the nature and effect of the document is insufficient. The

mere ability on the part of the testator to make rational responses or to

repeat a tutored formula of simple terms is not sufficient to prove capac-

ity: Leger v. Poirier, [1944] S.C.R. 152 (S.C.C.). Memory is a critical

requirement underpinning testamentary capacity: Simpson v Gardners

Trustees (1833) 11 Ct of Sess Cas 1049 at 1051-52 (Scottish Ct of Sess);

Murphy v. Lamphier, [1914] O.J. No. 32, 31 O.L.R. 287 (Ont. H.C.);

Fraser, Re (1932), 26 Alta. L.R. 551, [1932] 3 W.W.R. 381 (Alta. C.A.)

at para 19.

128 It is not sufficient to show that the testator lacked capacity at some

time. The incapacity must be tied to a relevant date: deBalinhard Estate,

Re, 2014 SKQB 162 (Sask. Q.B.) at para 83. A testator may only have

temporary periods of rational and lucid behaviour, and in such moments

may competently dispose of his estate: Weidenberger Estate, Re, 2002

ABQB 861, [2002] A.J. No. 1157 (Alta. Q.B.) at para 28; Mah v. Zukas

Estate, 2016 ABQB 587, [2016] A.J. No. 1372 (Alta. Q.B.) at paras 57-

59; Popowich v. Capasso, 2012 ABQB 665, [2012] A.J. No. 1146 (Alta.

Q.B.) at para 12; Bartlett v. Bull (1914), 5 W.W.R. 1207, 16 D.L.R. 82

(Alta. T.D.). However, evidence of a testator’s medical condition, recent

hospitalization and clinical symptoms at a time proximate to the execu-

tion of the will can support a finding that the propounder has not met his

burden: Stekar v. Wilcox, 2017 ONCA 1010 (Ont. C.A.).

129 Mental disease does not necessarily negate testamentary capacity if it

presents itself in such a degree and form as not to interfere with the ca-

pacity to make a rational disposal of property: Smith Estate, Re, [1945] 3


W.W.R. 216 (Alta. Dist. Ct.), aff’d [1946] 2 W.W.R. 734 (Alta. C.A.).

Nor is intoxication at the time of making a will sufficient in itself to

warrant the assumption of testamentary incapacity. However, heavy

drinking or drugs may deprive a testator of the capacity to prepare and

execute a will if it results in diminished capacity: Bradbury Estate, Re

(1996), 13 E.T.R. (2d) 67 (Alta. Surr. Ct.); Campbell v. Campbell (1906),

6 Terr. L.R. 378 (N.W.T. S.C.).

130 A testator may be unfair but still have testamentary capacity: Beal v.

Henri, [1950] O.J. No. 483, [1950] O.R. 780 (Ont. C.A.) at 786 (CA).

Therefore, unfairness alone does not amount to “suspicious circum-

stances”: Maddess v. Racz, [2008] B.C.J. No. 2202 (B.C. S.C.), aff’d

[2009] B.C.J. No. 2739 (B.C. C.A.), leave denied [2010] S.C.C.A. No.

72 (S.C.C.).

131 However, a radical or unexplained change in beneficiaries named in a

prior will may constitute a suspicious circumstance sufficient to warrant

inquiry: Stekar v. Wilcox.

132 A court is not bound to accept the opinion of experts when that opin-

ion is opposed to testimony within the knowledge of observers who came

into contact daily with the testator: Crabbe v. S., [1925] B.C.J. No. 102

(B.C. C.A.). Despite evidence of incompetence at various times, the evi-

dence of the nearest relatives of a testator as to his competence at the

relevant time may be persuasive. Suspicion is not a substitute for proof:

Laramee v. Ferron (1909), 41 S.C.R. 391 (S.C.C.) at 393, 409, [1909]

S.C.J. No. 10 (S.C.C.).

133 A court must find against validity if the evidence of incapacity is in-

conclusive but sufficient to leave the court in doubt: Corbett v. Wall,

[1939] 2 D.L.R. 201 (N.B. C.A.); Leger v. Poirier, [1944] S.C.R. 152

(S.C.C.); Stekar v. Wilcox.

134 Inability to manage one’s affairs may not establish that one was inca-

pable of making a will, nor is a guardianship order or trusteeship order of

itself sufficient to establish that the adult who is the subject of the order

did not have legal capacity to make a testamentary disposition: Adult

Guardianship and Trusteeship Act, SA 2008, c A-4.2, s 85(1);

McCardell Estate v. Cushman (1988), 94 A.R. 262 (Alta. C.A.).

135 An allegation of undue influence must be supported by evidence, not

merely by innuendo and speculation: Moncrieff v. Hayne, 2014 ABCA

297, [2014] A.J. No. 981 (Alta. C.A.).


136 In Beimler v. Kendall, 2017 ABCA 117, [2017] A.J. No. 376 (Alta.

C.A.) there was evidence that the testator suffered anxiety, some cogni-

tion problems, may have had early dementia and was certainly slipping

mentally. A lawyer who knew the testator met with him in relation to the

will and was satisfied he was not being pressured or unduly influenced

and had capacity to make the will. Affidavits of a cousin and two close

friends spoke positively of the testator’s cognitive abilities. The cham-

bers judge found that while there was some medical evidence that the

testator’s cognitive abilities may have been diminishing, there was no

evidence that he was delusional or suffered impairment to his general

understanding of the world. Notwithstanding the observed aging process,

none of the medical evidence suggested that the testator was incapable of

making a will. The Court of Appeal upheld the chambers judge’s conclu-

sion that there was no evidentiary basis to support the appellants’ suspi-

cions that the testator lacked capacity or that there was undue influence.

137 Where a gift of substantially all of a person’s property is made, undue

influence has been defined as conduct that is improper, unfair or wrong-

ful. Undue influence will also be found if the conduct prevents the gift-

maker from exercising independent judgment: Bradley v. Crittenden,

[1932] S.C.R. 552, [1932] 3 D.L.R. 193 (S.C.C.). Undue influence is pre-

sumed where there is a relationship of trust or dominance enabling a per-

son to dominate the will of another through manipulation, coercion or

outright but subtle abuse of power: Goodman Estate v. Geffen, [1991] 2

S.C.R. 353, [1991] S.C.J. No. 53 (S.C.C.). Independent legal advice may

rebut the presumption, but only where it reflects the free exercise of an

independent will: Fowler Estate v. Barnes (1996), 13 E.T.R. (2d) 150,

142 Nfld. & P.E.I.R. 223 (Nfld. T.D.) at paras 45-46.

138 Betty Ann submits if undue influence is not found, then the law on

unconscionable procurement requires that Bernie, who obtained a benefit

from Tette by voluntary donation must establish that Tette did so volun-

tarily and deliberately, knowing what he was doing: Kinsella v. Pask

(1913), 28 O.L.R. 393, 12 D.L.R. 522 (Ont. C.A.); Fairchild v. Mitchell

(1959), 43 M.P.R. 9, 19 D.L.R. (2d) 521 (N.S. C.A.).

3. Application of Law to the Facts

139 The evidence of all of the witnesses who dealt in person with Tette in

or around the time of the signing of the Deed of Gift supports a finding

that he had sufficient capacity at that time.


140 Bernie, Lindy and Lori Lee all lived in or very close to Provost. They

were accustomed to caring for Tette when he was binge drinking, as well

as in between his binges.

141 Bernie deposed that Tette was always capable of making his own de-

cisions over his finances. The only time he had difficulty was when he

was on a drinking binge.

142 Lindy deposed that she was always confident that Tette was capable

of making his own decisions about his life and money. Tette did need

help when he was on a drinking binge to make sure his bills were paid

but when he was sober he showed no evidence of not knowing what he

was doing. Tette was not someone that could be made to do something if

he did not want to do it. She had no concerns that Bernie influenced

Tette.

143 Lori Lee deposed that she had no concerns that Tette understood that

he was giving everything he owned to Bernie. Tette did what he wanted;

no one could make him do something he did not want to do. She did not

discuss estate planning with Tette but recalled him saying at one time

that Betty Ann was out of the will, and “if you fight, you get nothing”.

Lori Lee deposed that Tette was always of sound mind. She was not

aware of any issues that affected his mental capacity other than when he

was under the influence of alcohol.

144 Betty Ann stated in questioning that she would see Tette once a year

and try to call him a couple of times a month on the phone. She stated

that Tette knew what he was doing in 1995 when he gave Betty Ann

money to build their home in Lethbridge, Alberta. She said that she be-

lieved Tette did not have capacity in 2001 based on what she was told by

her family.

145 Rick deposed that he would see Tette on special occasions and holi-

days, and that Tette was always sober when Rick was home. Further,

Tette did what he wanted to do and no one was able to make him do

something he did not want to do. Rick visited Tette in May 2005 and he

was “doing great”. His house looked good. Rick did not live in Provost

so he did not know how much Tette drank or the frequency of his binges.

He deposed that Tette was competent and showed no signs of mental

incapacity whenever he saw him over the years.

146 Mr. Ackroyd, Dr. Erasmus and Dr. Malan had interacted with Tette

prior to 2001 and formed opinions as to his capacity around the time of

the signing of the Deed of Gift. Dr. Malan had treated Tette at both the


hospital and the clinic. He had abundant experience working with pa-

tients with dementia and alcoholism.

147 Mr. Ackroyd had been a lawyer for around 30 years in 2001. He

knew Tette was an alcoholic who went “on and off the wagon”. He stated

in questioning that he was satisfied that Tette was on the wagon at the

time of signing the Deed of Gift. He was satisfied as a result of his inter-

actions with Tette that he seemed to be quite sober and quite capable of

understanding everything that went on. Tette was certain that Betty Ann

would litigate.

148 Mr. Van Winssen had an opportunity to interact with Tette on two

occasions in relation to signing the Deed of Gift, and was aware that

Tette saw two doctors regarding his competency. Therefore, he was alive

to the issue and was satisfied that Tette had capacity at the relevant time.

149 Betty Ann points to Tette’s long-term struggle with alcoholism, his

associated medical history, and certain comments made by witnesses

who dealt with Tette around the time of the signing to support that he

lacked the necessary capacity.

150 There is no dispute that Tette was an alcoholic for many years. The

records from the hospital, clinic and treatment centres indicate that he

was seen at those facilities as a result of his drinking in:

• March 1973 (clinic)

• May 1992 (hospital)

• February 1995 (clinic)

• July 1995 (clinic)

• July 1996 (hospital, following an 8 day binge)

• November 1996 (hospital, following a 5 or 6 day binge)

• late June and early July 1997 (hospital)

• February 23, 1998 (clinic)

• March 1998 (hospital)

• May 1998 (hospital, following a 6 day binge)

• June/July 1998 (Henwood)

• March 2000 (hospital)

• May-July 2000 (Edgewood)

• October 2005 (hospital).

151 The observations noted in these hospital records relate to periods of

time when Tette was intoxicated or withdrawing from the effects of his

alcohol binges.


152 When Dr. Mausolf treated Tette at Henwood in 1998, Tette scored 24

out of 30 on an MMSE. A subsequent CT scan of Tette’s brain indicated

that he suffered from mild global atrophy slightly greater than expected

for his age, which was around 68 years at that time. Dr. Mausolf reported

that Tette suffered from some impairment of short term memory.

153 Mr. Miller, the addictions counsellor at Henwood in 1998, noted

Tette’s short term memory problems and confusion while at Henwood.

At Edgewood in May to July 2000, Tette was diagnosed with probably a

degree of early mild alcohol induced persisting dementia.

154 When Tette was admitted to the hospital shortly prior to his death in

early February 2007, his memory was “not the greatest”, but he re-

sponded appropriately to questions.

155 Tette executed the Deed of Gift on February 21, 2001. He met with

Mr. Ackroyd prior to that time. Mr. Ackroyd knew Tette had a problem

with alcohol and said he was probably more diligent in asking Tette

questions as a result. When Mr. Ackroyd met with Tette and talked to

him about the Deed of Gift, Tette did not appear to have been drinking.

Mr. Ackroyd specifically questioned Tette on matters such as the possi-

bility that Bernie would decide not to give anything to anyone else, that

all of his children except Bernie would be cut out of his estate, and that

Tette should be concerned to have sufficient funds to look after his own

welfare. Tette responded that he trusted Bernie. Further, Mr. Ackroyd

spent time with Tette and reviewed with him the types of assets he

owned. It was “quite likely” that he discussed with Tette whether he was

under any duress or influence from Bernie. Mr. Ackroyd was satisfied

that this was not the case. He described Tette as knowing what he was

doing and what he wanted to do. Tette was “very clear” on these points.

Tette was “his own man” and could not be pushed around. Tette told Mr.

Ackroyd that he was upset about one of his children suing another one.

The evidence establishes that Betty Ann and her husband sued Lindy and

her husband in 1999. Tette was convinced that there would be litigation

in relation to his estate. He expressed these matters as reasons for giving

everything to Bernie.

156 Mr. Ackroyd said that he had no doubt that Tette had capacity to sign

the Deed of Gift but because Tette was certain there would be litigation,

Mr. Ackroyd arranged for Tette to see Mr. Van Winssen and a medical

doctor so that there would be confirmation of his capacity and under-

standing on the day in question.


157 Mr. Van Winssen had been a lawyer for 20 years in 2001.Betty Ann

submits that Mr. Van Winssen was rushed and was not told that Tette

was a long term alcoholic with possible dementia as far back as 1998.

However, Mr. Van Winssen denied that he was rushed. He spent 20 to 30

minutes reviewing the matter with Tette on February 16, 2001 and met

again with Tette on February 21, 2001 after Tette had seen two doctors,

at which point he had two Certificates of Competency. In Mr. Van Win-

ssen’s opinion, Tette understood what he was doing.

158 Dr. Erasmus had been a physician for 20 years in 2001. He had

known Tette since 1996. On February 16, 2001, he noted that Tette was

oriented apart from time, his comprehension seemed all right, and his

“mini mental” (23 out of 30) was good apart from short term memory.

Dr. Erasmus concluded from their discussions that although Tette would

forget that he had seen Dr. Erasmus, he knew what he was doing and

why he was doing it.

159 On the same date, Dr. Malan spent 20 to 30 minutes with Tette. Dr.

Malan had been a physician for 17 years, and had seen Tette from time to

time. He noted on the date in question that although Tette was easily

distracted from topics and had poor short term memory, his reasoning

seemed appropriate. Tette was quite adamant about his intention. Dr.

Malan concluded that Tette was mentally fit “to change his will”. He

would have made sure that Tette was not under the influence of alcohol

at the time of the assessment. Dr. Malan explained that a score of 23 out

of 30 indicates problems with cognition, but he differentiated between

cognitive status and capacity, stating that one can have dementia and still

have the capacity to make decisions.

160 Lori Lee drove Tette to see the doctors. In questioning, Lori Lee

stated that she could tell when Tette had been drinking and she never

would have taken him out in public if he was not sober.

161 Betty Ann’s expert, Dr. Shulman, based his opinion regarding Tette’s

mental capacity from 1997 to 2001on certain documents provided by

Betty Ann. He had never met or treated Tette, nor had he spoken with

any of the individuals who spent considerable time with Tette. Dr. Shul-

man concluded from the medical records that Tette’s condition “did not

abate and indeed persisted until his death in 2007”. It is true that Tette

remained an alcoholic until his death. However, the medical records indi-

cate that he was admitted periodically as a result of his binge drinking.

162 Dr. Shulman opined that by 1997 and certainly by 2001, Tette would

have had great difficulty sorting out competing claims, needs and conse-


quences within a complex and conflictual family environment. Dr. Malan

did acknowledge that there was a real risk that given Tette’s short term

memory issues, if a list of possible outcomes related to the Deed of Gift

were put to Tette, he may not hold all of those possibilities in his mind.

163 However, Tette had no spouse or dependents at the time. Both Mr.

Ackroyd and Mr. Van Winssen spoke with Tette about the risk to him of

giving away all of his assets, and Tette advised that he trusted Bernie to

take care of him. They also spoke to him about the consequences to his

children. Tette acknowledged this. Tette consistently explained that he

was concerned that Betty Ann would ultimately challenge his estate. It is

not clear what additional complexities would be of concern to Dr.

Shulman.

164 Dr. Shulman also stated that Tette’s memory, especially short term

memory, judgment and insight were severely impaired according to mul-

tiple sources. However, all of the evidence before this Court supports

that Tette had some problems with short term memory - not that his

memory, judgment and insight were severely impaired. Furthermore, the

evidence of those who knew Tette establishes that Tette’s cognition va-

ried depending on whether he was on a binge, withdrawing, or in be-

tween binges.

165 Dr. Shulman opined that chronic alcoholism can lead to repeated epi-

sodes of acute intoxication impairing judgment and the full range of cog-

nitive functions necessary for mental capacity, and to withdrawal which

is characterized by perceptual abnormalities such as hallucinations as

well as diffuse cognitive impairment and agitation complicated by the

inevitable craving for alcohol. Betty Ann notes that Dr. Malan testified

that Tette would do anything for alcohol and suggests he would probably

have signed any document that was put in front of him.

166 While there is evidence from Dr. Erasmus’ notes that Tette reported

having consumed alcohol on February 15, 2001, there is no evidence

before the Court to suggest that Tette was on a drinking binge or in a

period of withdrawal when he signed the Deed of Gift on February 21,

2001. There is also no evidence that Tette was motivated to sign the

Deed of Gift by the promise of alcohol.

167 Dr. Shulman also noted that chronic alcoholism causes permanent

brain damage and cognitive impairment leads to a phenomenon known as

Korsakoff’s syndrome resulting in severe memory deficits and invention

of false memories as a form of compensating for these deficits.


168 Again, the evidence before the Court does not support a finding of

severe memory deficits. It was noted in medical records that he was at

times confused as to place and time. The only evidence of confabulation

is from Tette’s time at Henwood in 1998, during a period of alcohol

withdrawal following a period of binging. Dr. Shulman’s evidence does

not address any of the evidence that Tette’s memory varied depending on

his drinking. At the time of signing the Deed of Gift, he knew how many

children he had, how many had died, that his estate was large, and that

Betty Ann was litigious. He was able to explain his rationale and it was

reasonable in context.

169 Dr. Shulman opined that Tette’s chronic and severe alcoholism and

cognitive impairment made him extremely susceptible to any influence

that may have been exerted. However, the evidence of those who knew

Tette does not support this conclusion. Mr. Kroeger testified that Tette

“was making the decisions” with respect to the insurance products. Mr.

Ackroyd described Tette as being “his own man”, and as one who could

not be pushed around. Dr. Malan described him as being “adamant”

about his intentions. Bernie, Lindy and Lori Lee attested to Tette being

strong minded. There is no evidence to suggest that Tette had, or devel-

oped over time, a vulnerable personality, despite his problems with

alcohol.

170 Dr. Shulman stated that he was not an expert in alcoholism. As well,

he acknowledged in questioning that assessing a client directly is the

most important way to determine the person’s capacity. He also said that

an MMSE does not reveal anything about capacity. He agreed that a per-

son’s ability to provide a clear, consistent rationale and explanation

would go toward a finding of capacity.

171 In my view, Dr. Shulman’s conclusory opinions regarding a man he

never had an opportunity to observe do not undermine the evidence of

those who came into contact with Tette over the years and who dealt

with him at the time of signing the Deed of Gift. Significantly, Dr. Shul-

man’s opinion does not address the body of evidence of those who knew

Tette.

172 Betty Ann raises the fact that Dr. Erasmus and Dr. Malan did not

have the 2001 Deed of Gift when examining Tette. There was no docu-

ment attached to the Certificates. The Certificates state that the purpose

of the exam was to determine whether Tette possessed sufficient mental

capacity to understand and appreciate the consequences of him signing

“the document” and that the doctor believed Tette possessed the capacity


to understand and appreciate the effect of “the document” and further

would possess sufficient capacity to give instructions for a will or deed

which purports to dispose of his assets.

173 Both Dr. Erasmus and Dr. Malan understood that Tette was making a

decision about his will. Dr. Erasmus said he would not have known the

difference between a will and a deed. Both doctors determined that Tette

had the necessary capacity to make decisions about the ultimate disposi-

tion of his property, and that he articulated reasons for wishing to make a

change in that regard.

174 The evidence supports a finding that Tette told them that he wanted to

change his will. In fact, by signing the Deed of Gift, he was changing the

effect of his 1998 Will by making an immediate disposition of all of his

property. His reasoning was that he anticipated that Betty Ann would

challenge his dispositions. He was warned that the effect of the Deed of

Gift would be to give Bernie control over all of his assets.

175 I note that this is not the sudden type of inexplicable change to a dis-

position that has given rise to concern about capacity in other cases. The

1998 Will reflected an intention to transfer Tette’s holding company to

Bernie and to treat Betty Ann’s share of the estate in a significantly dif-

ferent manner as compared to the shares of the other children. Tette

clearly expressed that he trusted Bernie to take care of him, and he

wished to avoid a fight over his estate, particularly a fight initiated by

Betty Ann.

176 Betty Ann argues that the evidence does not support a finding that

Tette had, at the relevant times, the degree of understanding required for

a deed of gift or a will. Further, Bernie obtained a benefit from Tette by

voluntary donation and therefore he must establish that Tette did so vol-

untarily and deliberately, knowing what he was doing.

177 The test for disposition of one’s entire estate requires that the donor

understand the nature and quality of the act, the nature and extent of his

property, the persons who ordinarily might be expected to benefit, the

provisions he was making, the extent of what was being given to each

beneficiary and the nature of the claims of others who were being ex-

cluded, and the risk of impoverishment of himself and any dependents

during his life.

178 Tette’s assets are generally outlined in the Deed of Gift. The docu-

ment acknowledged that the gift would frustrate the provisions of his

will, and would deny his other children an inheritance or the right to

share in his estate. It stated that Tette was satisfied that Bernie would


adequately provide for his welfare, that he was signing of his own free

will and was not acting under duress or undue influence. This was the

document Mr. Van Winssen discussed with Tette.

179 Again, the effect of the Deed of Gift was not complex from Tette’s

point of view. The evidence supports that Tette understood that he was

giving his assets to Bernie. He knew there was a lot of money involved.

He knew how many children he had. He knew that Betty Ann would

likely challenge his dispositions, and he knew there was a risk to himself

but he was satisfied that Bernie would provide for his needs during his

remaining lifetime. There is no suggestion that this trust was misplaced

or that Bernie did not provide for any of Tette’s needs.

180 Betty Ann complains that tax ramifications were not explained to

Tette. However, Tette understood that he was giving away all of his as-

sets. Mr. Ackroyd sent the Deed of Gift to Tette’s accountant for feed-

back. Tette trusted Bernie to provide what he required. There is no evi-

dence that Tette was exposed to, or ultimately suffered, a financial risk

that was not explained to him. Bernie deposed that he paid all taxes in

relation to the Deed of Gift.

181 Betty Ann also argues that it was not explained to Tette that the Deed

of Gift would not prevent estate litigation. This lawsuit is evidence that

estate litigation can be difficult to avoid, and indeed it was not avoided

by the Deed of Gift in this case. Certainly, all of the evidence supports

that Tette sought to minimize the chance of litigation among his children

and that he was concerned, in particular, with the prospect of Betty Ann

challenging the estate. Although Tette may have been optimistic about

the possibility of avoiding litigation, there is no evidence that he was

assured by anyone that litigation could be absolutely avoided if he gave

his assets to Bernie. The fact that Tette told Mr. Ackroyd he wanted to

“nail everything down” with the 2001 Will suggests that he did not be-

lieve the Deed of Gift was a guarantee in this regard.

182 Betty Ann argues that Bernie, Lori Lee and Lindy enabled Tette’s

alcohol-based lifestyle and he was completely dependent on them to keep

him out of a personal care home. She suggested that Bernie was giving

Tette cash for liquor. She opines that if Tette had been placed in a per-

sonal care home, his drinking would have come to an end.

183 The evidence was that Bernie, and to a lesser extent Lindy, checked

on Tette daily. When Tette deteriorated on a binge, Bernie would clean

him up, bathe him, shave him, and take him to the hospital. The family

enrolled Tette in alcohol treatment programs which ultimately proved


fruitless. After 6 days in the hospital in 1998, Tette became frustrated

and wanted to leave. The family searched and found a full time caregiv-

ing couple but Tette did not like them and the arrangement fell through

immediately. Tette moved into Hillcrest Lodge in 2000 which was a dry

facility, but he continued to drink and eventually left that facility. As Dr.

Malan said, “Alcoholics find a way of finding some alcohol somewhere”.

184 The evidence does not support Betty Ann’s suggestion that Bernie,

Lori Lee and Lindy chose to keep Tette out of care, thereby preventing

him from being rehabilitated. On the contrary, the evidence supports a

finding that those family members undertook the difficult and often un-

pleasant task of assisting Tette as best they could. Bernie physically cle-

aned up Tette on numerous occasions and took him to the hospital, they

sought medical and rehabilitation options, caregiver and senior’s resi-

dence options. There is no doubt that these family members were essen-

tial to Tette’s survival, however there is no basis in the evidence upon

which to infer that their treatment of Tette was designed to deprive him

of his assets. He was an intractable alcoholic who required their assis-

tance. There is no evidence of anything nefarious in their continued care

for him. Tette stated that he trusted Bernie. This was logical; Bernie had

consistently cared for him during his darkest moments over many years.

Betty Ann urged that the actions of Bernie, Lindy and Lori Lee evi-

denced essentially collusion by or a conspiracy amongst them. There is

no basis for such an allegation. Rather, the actions of Bernie, Lindy and

Lori Lee are simply reflective of what children often do in support of an

aging parent who faces challenges. There is much evidence of support;

there is none of domination.

185 Betty Ann also notes that Mr. Ackroyd and Bernie were personal

friends, and opines that they worked together to achieve Bernie’s pur-

poses, not those of Tette. Betty Ann submits that Bernie gained consider-

ably through forgiveness of loans, as did Lindy. She points to detailed

accounting records kept by Lindy and Lori Lee in support of her position

that improper transfers of Tette’s wealth may have taken place.

186 I find no basis upon which to infer that Mr. Ackroyd and Bernie con-

spired to deprive Tette of his assets. All of the evidence of those who

knew Tette supports a finding that he was his own man and could not be

pushed around. It is clear that Tette intended an outright gift to Bernie of

his business related assets.

187 I find that the allegation of undue influence is supported only by in-

nuendo and speculation. Those who met with Tette in relation to execu-


tion of the Deed of Gift concluded that Tette was not unduly influenced

in his decision making. All who knew him described him as strong

willed.

188 Betty Ann suggests that such a gift had consequences in terms of tax

and loan forgiveness that Tette would not have understood. However, his

accountant received a copy for feedback. Mr. Van Winssen discussed the

ramifications of the document with Tette. There is no expert evidence

before the Court to suggest that this manner of gifting was more improvi-

dent than any other potential solution.

189 Mr. Van Winssen ensured that Tette realized Bernie could control

everything as a result of an outright gift. Tette indicated that he trusted

Bernie. This trust appears to have been twofold: he trusted Bernie to take

care of him, and he trusted Bernie to respect his wishes as to the ultimate

disposition of the balance of his estate. His wishes as expressed to Mr.

Van Winssen were that his children would share equally. Mr. Van Win-

ssen’s notes indicate his wish that his other children receive equal shares

in terms of the balance of the estate. Bernie’s evidence supports that this

was his understanding as well: Tette relied upon him to distribute the

balance according to Tette’s wishes. I find that this created a resulting

trust pursuant to which Bernie was to divide the balance of the estate of

his assets equally among the siblings.

190 Betty Ann also points out that Rick sued Jackie before the Deed of

Gift and Tette would have known this because Lori Lee said in question-

ing that Jackie and Tette communicated openly. I have reviewed the

pleadings and affidavit in that action. It was not a property dispute.

Given the nature of the allegations, in my view it is highly unlikely that

either Jackie or Rick would have spoken to Tette about the litigation as

those allegations did not reflect well on either one of them, especially

Jackie. There is no evidence that Tette was aware of the lawsuit, and I

am not prepared to infer that he was.

191 On the basis of all of the evidence, I find that the Defendants have

rebutted the presumption of a resulting trust in relation to the Deed of

Gift in relation to business related assets. I find that Tette intended to

make a gift of the beneficial interest in those assets. I find that he in-

tended to gift the balance to Bernie on the understanding that Bernie

would apportion the balance equally between the siblings.

192 Despite evidence of incompetence at various times related to alcohol

consumption and withdrawal, I find that Tette had sufficient mental ca-

pacity at the relevant time to make such a gift. He made the gift volunta-


rily and deliberately, knowing what he was doing. He understood the na-

ture and quality of the act. He was sufficiently clear in his understanding

and memory to know in a general way the nature and extent of his pro-

perty, and the persons who ordinarily might be expected to benefit. He

appreciated the risk to himself of impoverishment.

193 Betty Ann also raised the doctrine of unconscionable procurement,

which would require Bernie to establish that Tette made the Deed of Gift

voluntarily and deliberately, knowing what he was doing. I have already

examined the evidence and reached the conclusion that Tette made the

Deed of Gift voluntarily and knowingly. The onus under the doctrine of

unconscionable procurement resembles the onus on an adult child to re-

but the presumption of a resulting trust. It is true that Bernie had a rela-

tionship with Mr. Ackroyd, and I have noted evidence indicating that

Bernie had discussions about the Deed of Gift with Mr. Ackroyd. How-

ever, Mr. Ackroyd properly sent Tette out for independent legal advice

and Tette ultimately attended for two capacity assessments with doctors

who were familiar with him. The law on unconscionable procurement

does not change my conclusions in relation to the validity of the Deed of

Gift and its legal effect.

B. Is the 2001 Will valid?

194 If the propounder of a will establishes the legal formalities relating to

execution, a rebuttable presumption arises that the testator knew and ap-

proved the contents of the will, and had the requisite testamentary capac-

ity to make the will: Vout v. Hay, [1995] 2 S.C.R. 876, [1995] S.C.J. No.

58 (S.C.C.). However, evidence of suspicious circumstances may rebut

this presumption so as to necessitate a trial putting the will into question.

The challenger must point to some evidence which, if accepted, would

tend to negative knowledge and approval or testamentary capacity: Vout

v. Hay; Beimler v. Kendall, 2017 ABCA 117 (Alta. C.A.) at para 10;

Keller v. Luzzi Estate, 2010 ABCA 127, 477 A.R. 184 (Alta. C.A.),

Quaintance Estate, Re, 2006 ABCA 47, 380 A.R. 160 (Alta. C.A.).

195 Betty Ann acknowledges that the 2001 Will was duly executed. How-

ever, she submits that the same evidence referred to above supports a

finding that Tette did not have testamentary capacity five months after

the 2001 Deed of Gift was signed. She submits that Mr. Ackroyd gave no

evidence regarding Tette’s level of functioning at the time the 2001 Will

was signed and has no recollection of it. Lori Lee was the second witness

and she only stated that Tette was sober at the time he signed.


196 I have found that Tette was competent at the time of signing of the

Deed of Gift five months prior to executing the 2001 Will. Tette told Mr.

Ackroyd he “wanted everything nailed down” by signing the 2001 Will.

The 2001 Will was consistent with the Deed of Gift in the event that a

problem arose with the Deed of Gift in the sense that Bernie would have

control over the assets.

197 Lori Lee’s evidence is that Tette was sober at the time he signed the

2001 Will. Mr. Ackroyd testified that he would have satisfied himself

that Tette was sober when the 2001 Will was executed and he would

have reviewed the document with Tette. Mr. Ackroyd concluded that

Tette understood what he was doing and understood the consequences.

There is nothing to support a finding that Tette was binging or withdraw-

ing from a binge when he executed the 2001 Will.

198 There is little medical evidence in the years from 2001 to Tette’s

death in 2007. On his attendance at the hospital in 2005, it was noted:

“Patient remains intoxicated but can carry on a conversation”. When

Tette was admitted to the hospital in early 2007, shortly before his death,

he was described as not having the greatest memory but he was respond-

ing appropriately to questions. This was nearly six years after the signing

of the 2001 Will.

199 Lori Lee deposed that Bernie, Lindy and Lori Lee took Tette to Hol-

land to visit his sisters in May 2006. He took steps to renew his driver’s

licence in 2006. Tette lived at home until he was hospitalized and passed

away in 2007.

200 The evidence supports a finding that Tette’s capacity was not signifi-

cantly different at the time of executing the 2001 Will than it was when

he signed the Deed of Gift. Given the evidence of his later years, there is

nothing upon which to infer that any decline in cognition or memory was

so steep that he would have lost capacity between signing the Deed of

Gift and executing the 2001 Will.

201 Betty Ann submits that Bernie procured the 2001 Will in his favour

and that this raises a suspicion which requires the Court to be satisfied

that the 2001 Will expressed Tette’s true intention: Kostynuik v. Brychun,

1982 CarswellSask 370 (Sask. Surr. Ct.) at para 34, (1982), 18 Sask. R.

383 (Sask. Surr. Ct.) and cases cited therein.

202 Bernie deposed that he believed that Tette had transferred everything

to him under the Deed of Gift.


203 I have found that Tette had sufficient mental capacity at the relevant

time to make the Deed of Gift and made it voluntarily and deliberately,

knowing what he was doing. The evidence of those who knew him was

that he was not one to be pushed around. Tette left this impression on

those with whom he met around the time of signing the Deed of Gift.

204 The 2001 Will, executed five months later, confirmed his previously

expressed intention that Bernie would have control over his assets. It is

clear from the evidence that Tette was able to recall that he had previ-

ously signed the Deed of Gift and he expressed a continuing intention to

put his assets in Bernie’s hands.

205 Mr. Ackroyd testified that he explained to Tette that he did not think

that the 2001 Will was required because of the Deed of Gift, but he

thought Tette “wanted everything nailed down” and he accordingly pre-

pared the 2001 Will. This evidence is difficult to reconcile with Betty

Ann’s theory that Tette had no memory, was unable to retain any infor-

mation, was disoriented and would have signed whatever was put before

him.

206 I note that the Supreme Court had not rendered its decision in Pecore

at the time of the execution of the Deed of Gift or the 2001 Will. That

decision clarified the law applicable to gifts from parents to their adult

children. Abella J. observed in Pecore at para 79 in separate reasons that

the presumption of advancement has historically applied to gratuitous

transfers to children regardless of the child’s age. The evidence before

the Court is that Mr. Ackroyd was of the view at the time of execution of

the 2001 Will that the Deed of Gift had accomplished the same result as

the 2001 Will would accomplish. He provided this opinion to Tette. Ac-

cording to that advice, under both documents Tette was relinquishing his

interest in his estate. Tette had already received independent legal advice

and Certificates of Competency had been provided in relation to the

Deed of Gift. Although it might well be argued in light of Pecore that

Tette transferred the remainder of his assets on a resulting trust under the

Deed of Gift, the 2001 Will effectively removed any trust conditions.

The evidence supports a finding that Tette maintained a continuing inten-

tion to give Bernie ultimate control over his estate.

207 I conclude that to the extent a resulting trust arose under the Deed of

Gift, the 2001 Will confirmed Tette’s intention that all of his property be

transferred absolutely to Bernie on his death. In other words, to the ex-

tent that a resulting trust arose in respect of some of Tette’s property

under Pecore, the 2001 Will effectively removed any conditions which


were attached to the remaining property on his death. The evidence sup-

ports a finding that Tette viewed the 2001 Will as confirming his general

intention as expressed in the Deed of Gift, namely that Bernie would

have control over his estate.

208 I find no suspicious circumstances which would suggest that Bernie

procured the 2001 Will in his favour.

C. Are the Beneficiary Designations valid?

209 The capacity test required for a significant beneficiary designation is

the same as that required for a testamentary disposition: Turner Estate v.

Bezanson (1995), 6 E.T.R. (2d) 282, 139 N.S.R. (2d) 296 (N.S. S.C.),

aff’d on this point (1995), 8 E.T.R. (2d) 169, 143 N.S.R. (2d) 123 (N.S.

C.A.).

210 Betty Ann submits that the disputed Beneficiary Designations cannot

be sustained. Betty Ann relies, in particular, on changes of two designa-

tions from Tette’s estate to Bernie.

211 I have found that the 2001 Will is valid. Pursuant to the 2001 Will,

Bernie was the sole residual beneficiary. Had the Beneficiary Designa-

tions been made to the estate, the proceeds would have gone to Bernie

under the 2001 Will in any event. However, in case I am wrong in find-

ing the 2001 Will to be valid, I will consider Betty Ann’s arguments.

212 The insurance product with the Independent Order of Foresters ap-

pears to have been issued in March 1972. There is nothing in the evi-

dence raising any question regarding Tette’s capacity in 1972. His first

alcohol-related medical record dates to 1973. It is not clear when the

beneficiary designation to Bernie was made in relation to this insurance

product. Therefore, any determination that Tette lacked capacity at the

time of the designation would amount to pure speculation.

213 Betty Ann points to evidence of a document examiner, Mr. Purdy,

that the purported signature of Tette on the 1997 Beneficiary Designation

is questionable. The expert said there was “some evidence” that Tette

“may not have written the questioned signature”.

214 Betty Ann submits that this is evidence that Tette’s signature was

forged. There is no other evidence to support such an allegation.

215 There is, however, evidence that Tette’s left hand had been injured, as

confirmed by medical records from June/July 1996, and he had trouble

keeping a chequebook steady while he signed, and this was one of the

reasons for his daughters assisting him with his finances. Furthermore,


Mr. Purdy stated that the process of comparing the signature in question

with the specimen signatures was hampered by the poor quality of the

items bearing various signatures.

216 From a non-expert perspective, the many signature samples of Tette

in Mr. Purdy’s report display some degree of variation. The 1997 signa-

ture in question does not appear to vary, relatively speaking, from the

other signatures to any greater degree than they do among themselves.

217 An allegation of fraud requires proof on a balance of probabilities. In

the circumstances, I find that Mr. Purdy’s qualified and equivocal opin-

ion is insufficient to support an allegation of fraud.

218 Betty Ann submits that although Mr. Kroeger stated that he met with

Tette multiple times, that evidence does not speak to Tette’s mental func-

tion on March 18, 1997. She notes that the other Beneficiary Designa-

tions were executed in 1998 and 1999. Very limited documentation was

available with respect to the Beneficiary Designations dated March 12,

1998 and December 12, 1999. Betty Ann argues that evidence docu-

menting Tette’s diminished capacity started to flow in during testing and

treatment at Henwood in 1998.

219 Betty Ann also argues that Tette effectively lost control of his fi-

nances in 1998. The evidence is that he executed the Power of Attorney

on July 10, 1998. Thereafter, his daughters, Lindy and Lori Lee managed

Tette’s financial affairs, although he did maintain a personal cheque

book and on occasion would sign his own cheques.

220 The inability to manage one’s affairs is not determinative of a per-

son’s capacity to make a testamentary disposition, nor is a guardianship

order or trusteeship order: s 85(1), Adult Guardianship and Trusteeship

Act.

221 Mr. Ackroyd stated that he was of the view that Tette had capacity

and was sober when he signed the Power of Attorney in 1998. It was

prepared just in case he did lose capacity.

222 Tette was a binge drinker. The evidence supports a finding that he

had difficulty managing himself during certain periods of time. It is rea-

sonable to infer that he also had difficulty managing his finances at times

and he eventually gave that management over to two of his daughters.

However, the Court must consider all of the evidence of Tette’s capacity

in determining whether he was lucid enough to make the Beneficiary

Designations in question when he made them.


223 Mr. Kroeger became acquainted with Tette from the butcher shop

during his time in Provost up to 1980. Mr. Kroeger was involved in plac-

ing multiple insurance products for Tette’s benefit. Mr. Kroeger was an

experienced insurance broker.

224 Mr. Kroeger acknowledged his own memory deficits. Further, he

only took sparse notes regarding his meetings and other dealings with

Tette. Nevertheless, Mr. Kroeger had previous knowledge of Tette based

on personal observations from sometime in the 1970s to 1980. He testi-

fied that he found Tette to be no different when dealing with him in rela-

tion to the Beneficiary Designations than the Tette he had known prior to

his departure from Provost in 1980. There is no evidence upon which to

infer otherwise.

225 With respect to his dealings with Tette, Mr. Kroeger testified that

Tette “was making the decisions” with respect to the insurance products.

Mr. Kroeger stated that he never had any indication of alcohol use in any

of his meetings with Tette. Mr. Kroeger was of the view that in his deal-

ings with Tette in the late 1990s, he was the same as Mr. Kroeger

remembered him as during his dealings with Tette in the 1970s when he

was buying meat at the butcher shop. He did not recognize any change in

Tette’s demeanour from when he had known him earlier.

226 It is true that the designation of Bernie as sole designated beneficiary

differs from statements of the beneficiary information that Mr. Kroeger

recorded (“all children equally”, “estate”). Mr. Kroeger explained that

often in preparing documents, the applicant’s estate will be shown as the

beneficiary, but that it was not uncommon to change beneficiaries once

the insurance product was approved.

227 I have found that although Tette’s capacity was affected over the

years for periods of time due to binge drinking and withdrawal, he did

retain capacity in the intervals. The 1997 Beneficiary Designation in

question was made on March 18, 1997. This was between the November

1996 and June 1997 hospital notations regarding alcohol-related atten-

dances. There is no evidence to suggest he was on a binge or in with-

drawal on March 18, 1997. The 1998 Beneficiary Designation occurred

on March 12, 1998. This was around 3 weeks after a two-day hospital

stay and 11 days before another visit to the hospital with a laceration. It

was not until May 1998 that the first memory problems were noted. The

only incident in 1999 was a fainting spell at church on March 28, 1999.

This was three days after Tette had stopped drinking. The 1999 Benefici-

ary Designation was made on December 28, 1999. Around January 1,


2000, Tette moved into Hillcrest Lodge, a dry facility. He was intoxi-

cated when admitted to hospital on March 22, 2000. Thus, there is no

evidence that Tette was incapacitated or withdrawing close to or on the

dates he made the Beneficiary Designations.

228 Mr. Kroeger testified that he never noted an indication of alcohol

consumption on the occasions when he met with Tette. The Court has

before it various descriptions as to Tette’s condition on various occasions

when he had been binge drinking and when he was experiencing difficul-

ties in withdrawal. Even acknowledging Mr. Kroeger’s poor memory and

sparse notes, it would be very surprising for Mr. Kroeger not to remem-

ber such signs of alcohol consumption if Tette had been in the midst of a

binge or having difficulties in withdrawal. That is to say nothing of the

ethical difficulties that would be associated with having Tette sign legal

documents when visibly intoxicated or otherwise distressed.

229 Having considered all of the evidence available in relation to the Ben-

eficiary Designations, I find nothing to support Betty Ann’s allegation of

suspicious circumstances warranting a further inquiry in relation to the

Beneficiary Designations. Mr. Kroeger’s evidence is consistent with the

evidence of other professionals who met with Tette in relation to signing

documents. Despite his documented struggles with alcohol, the evidence

is that he appeared to have capacity when he met with them.

230 It is also noteworthy that the changes of two designations from

Tette’s estate to Bernie are consistent with other steps Tette took to en-

sure that Bernie had control over all of his assets, both prior to and upon

his death, in an attempt to reduce family conflict over the estate.

231 Betty Ann also argued that the 1997 Beneficiary Designation would

be revoked by the 1998 Will if the 1998 Will is valid. The validity of the

1998 Will is not before the Court on this application. Given my findings

regarding the Deed of Gift and the 2001 Will, I need not consider this

issue.

D. Is Summary Judgment appropriate?

232 This is an appropriate case for summary determination. The facts are

not complex and the law is clear. The case has been very heavily liti-

gated, and has now been ongoing for nine years. There were multiple

Case Management Conferences. Betty Ann has had five lawyers. Exten-

sive document production occurred and the parties were questioned for

discovery. As set out previously in these Reasons for Judgment, exten-

sive examinations on Affidavits and of witnesses took place in prepara-


tion for this Application. The parties presented argument and made sub-

missions over a cumulative period of eight days.

233 I am satisfied that Betty Ann has made her best efforts to establish an

evidentiary foundation upon which to challenge the various documents in

question.

234 I have found that there is insufficient evidence to support Betty Ann’s

claims. It is difficult to imagine that a trial would add anything material

to the considerable amount of evidence already before the Court. In any

event, a mere hope on the part of Betty Ann that some further evidence

may turn up is not a basis upon which to refuse summary judgment.

VII. Summary

235 The parties proceeded on this Application on the basis that this Court

is entitled to declare that the instruments in question are valid or invalid,

or to direct that their validity be determined at trial.

236 The Court grants the Defendants’ Application to summarily dismiss

Betty Ann’s claim that documents signed by Tette disposing of his pro-

perty are invalid.

237 The evidence supports a finding that the Deed of Gift, the 2001 Will,

and the Beneficiary Designations are all valid and I so find. Tette had

capacity and understood the effect of the documents. He articulated the

reason for the gift to Bernie, namely his concern that Betty Ann would

challenge his dispositions. This was not only logical - it was prescient.

238 There is no merit to Betty Ann’s claims. There is insufficient evi-

dence to support same. A mere hope on the part of Betty Ann that some

further evidence may turn up is not a basis upon which to refuse sum-

mary judgment.

VII. Costs

239 The parties may speak to me within 60 days of the date of these Rea-

sons for Judgment if they are otherwise unable to agree on costs.

Order accordingly.

Schedule A

DEED OF INTER-VIVOS GIFT

I, TETTE BOUMA, of the Town of Provost, in the Province of Alberta,

being of sound mind, hereby transfer to, assign to, and make an uncondi-


tional gift to my son BERNIE BOUMA of all my earthly assets which

are not limited to but which include:

a) 2 lots and houses in the Town of Provost;

b) All vehicles, including a truck and a Mercedes vehicle;

c) All shares in Tette Bouma Holdings Ltd.;

d) All bank accounts, mutual funds and all financial assets;

e) All personal possessions; and

f) All debts owed to me by anyone.

To the extent this gift and deed will frustrate the provisions of any will

that I may have, this deed shall take precedence.

I am satisfied that my son Bernie will adequately provide for my welfare

for the balance of my life.

I understand that the effect of this document will deny my other children

an inheritance or the right to share in my estate, and notwithstanding that,

it is my wish to give effect to this Deed.

I am signing this document of my own free will and am under no duress

or undue influence.

I have received independent legal advice and it is my mind and will to

sign and execute this Deed.

Dated at the Town of Provost this 21 day of February, 2001.

[signature] [signature]

WITNESS TETTE BOUMA

...................................

AFFIDAVIT OF EXECUTION

CANADA ) I, PETER VAN WINSSEN,

of the City TOWN

)

PROVINCE OF AL- ) of WAINWRIGHT, in the

BERTA Province of

)

TO WIT: ) Alberta, MAKE OATH

AND SAY:

1. THAT I was personally present and did see Tette Bouma, named in

the within Deed of Inter-Vivos Gift, who is personally known to me to be


the person named therein, duly sign and execute the same for the pur-

poses named therein.

2. THAT the same was executed at the TOWN of PROVOST, in the Prov-

ince of Alberta, and that I am the subscribing witness thereto.

3. THAT I know the said Tette Bouma and he is, in my belief, of the full

age of eighteen (18) years.

SWORN BEFORE ME at )

the TOWN of

PROVOST, in the Prov- )

ince of

Alberta, this 21st day )

February, 2001. )

)

)

[signature] ) [signature]

A Commissioner for

Oaths in and for the

Province of Alberta...

CERTIFICATE OF INDEPENDENT LEGAL ADVICE

I, PETER VAN WINSSEN - LAWYER, of the City of WAINWRIGHT, in

the Province of Alberta, Barrister and Solicitor, DO HEREBY

CERTIFY:

THAT I was this day consulted in my professional capacity by Tette

Bouma, the person named in the Deed of Inter-Vivos Gift attached

hereto, the said Deed of Inter-Vivos Gift being signed on the 21 day of

February, 2001 and that I acted solely for the said Tette Bouma and ex-

plained fully to him the nature and effect of the said Deed of Inter-Vivos

Gift, and he did execute the same of his own volition and without fear,

threats, compulsion or influence from any other person.

DATED at the TOWN of PROVOST, in the Province of Alberta, this 21

day of February, 2001.

[signature]

Barrister and Solicitor

[notary seal impression]


CERTIFICATE OF COMPETENCY

I, DEON E. ERASMUS, being a medical doctor and practitioner in the

Province of Alberta, hereby certify that I have examined this day one

Tette Bouma, who is known to me. The purpose of the exam was to de-

termine whether Mr. Bouma possessed sufficient mental capacity to un-

derstand and appreciate the consequences of him signing the document, a

copy of which is attached. Having completed the exam, I believe that Mr.

Bouma possesses the capacity to understand and appreciate the effect of

this document and further would possess sufficient capacity to give in-

structions for a will or deed which purports to dispose of his assets.

Dated at the Town of Provost, in the Province of Alberta, this 16 day of

February, 2001.

[signature]

DR. D. E. ERASMUS

CERTIFICATE OF COMPETENCY

I, STEPHAN. P. MALAN, being a medical doctor and practitioner in the

Province of Alberta, hereby certify that I have examined this day one

Tette Bouma, who is known to me. The purpose of the exam was to de-

termine whether Mr. Bouma possessed sufficient mental capacity to un-

derstand and appreciate the consequences of him signing the document, a

copy of which is attached. Having completed the exam, I believe that Mr.

Bouma possesses the capacity to understand and appreciate the effect of

this document and further would possess sufficient capacity to give in-

structions for a will or deed which purports to dispose of his assets.

DATED at the Town of Provost, in the Province of Alberta, this 16th day

of February, 2001.

[signature]

DR. SP. MALAN