



COURT 
    OF APPEAL FOR BRITISH COLUMBIA




Citation:


Stanton 
          v. Stanton Estate,







2008 
          BCCA 32



Date: 20080124

Docket: CA034604

Between:

Ophelia 
    Stanton

Appellant

(
Plaintiff
)

And

Jo 
    Ann Bernadette Stanton, Executrix and Trustee

of 
    the Estate of Donald Wilfred Stanton, Deceased

and 
    the said Jo Ann Bernadette Stanton

Respondent

(
Defendant
)




Before:


The 
          Honourable Madam Justice Newbury




The 
          Honourable Madam Justice Saunders




The 
          Honourable Mr. Justice Frankel








R.S. 
          Henderson


Counsel for the Appellant




M.V. 
          Barnard


Counsel for the Respondent




Place 
          and Date of Hearing:


Vancouver, British Columbia




January 7, 2008




Place 
          and Date of Judgment:


Vancouver, British Columbia




January 24, 2008








Written 
          Reasons by
:




The 
          Honourable Madam Justice Saunders




Concurred 
          in by:




The 
          Honourable Madam Justice Newbury

The 
          Honourable Mr. Justice Frankel



Reasons 
    for Judgment of the Honourable Madam Justice Saunders:

[1]

Ophelia Stanton appeals from the order of Mr. Justice Bernard made 
    October 26, 2006, declaring the Last Will and Testament of her husband, Donald 
    Stanton, made January 2, 2002, valid.  The reasons for judgment are indexed 
    at 2006 BCSC 1574.

[2]

The respondent, Jo Ann Stanton is the executrix and a beneficiary under 
    the Will.  She is the only daughter of Mr. Stanton and his first wife, who 
    died in January 2001 after 56 years of marriage.

[3]

In December 2001, Mr. Stanton, then 81 years old, married the appellant.  
    She had been his housekeeper.  Shortly after their marriage Mr. Stanton executed 
    the new will.  In it he left his cars to his new wife and the residue of his 
    estate to his daughter.

[4]

The major asset owned by Mr. Stanton was the family house.  On January 
    9, 2002, Mr. Stanton transferred the house into joint tenancy between himself 
    and his daughter, thus giving to her, in the event of his death, the substantial 
    portion of his assets in addition to the bequest in his Will.

[5]

Mr. Stanton told his new wife about the Will and the land transfer 
    in January 2002.  Mrs. Stanton expressed concern that she and her children 
    would not have a place to live if he should die, and they discussed purchasing 
    another house.  Mr. Stanton investigated the possibility of obtaining a reverse 
    mortgage from the equity held in the residence in which they then lived.  
    Mr. Stanton fell ill in May 2002 and died in October 2002 without making arrangements 
    for the housing of Ophelia Stanton in the event of his death.

[6]

In February 2003, Ophelia Stanton commenced an action under the
Wills 
    Variation Act
, R.S.B.C. 1996, c. 490.  In November 2005, she commenced 
    this probate action alleging suspicious circumstances and calling into question 
    Mr. Stantons testamentary capacity.  This action required Jo Ann Stanton 
    as the executrix to prove the Will in solemn form.

[7]

Mr. Justice Bernard described the issues this way:

[5]        
    The primary issues for determination are whether the defendant has proved:

(1)        
    that Mr. Stanton had the requisite testamentary capacity; and

(2)        
    that Mr. Stanton knew and approved of the contents of his Will.

[6]        
    A secondary issue is whether presumptive proof of (2) above, arising from 
    a duly executed will, has been displaced by circumstances which excite the 
    suspicion of the court.

[8]

Mr. Justice Bernard canvassed the position of the parties and the evidence 
    before him.  The evidence included the testimony of Ophelia Stanton to the 
    effect that she considered Donald Stanton mentally competent at the time the 
    Will was made, the testimony of Jo Ann Stanton generally to the same effect, 
    and evidence taken by deposition from the solicitor who drew the Will for 
    Mr. Stanton and attended at its execution.

[9]

Mr. Justice Bernard concluded that Mr. Stanton was mentally sound at 
    the time the Will was made, expressing his reasons fully in these passages:

[32]      
    I am satisfied that the evidence proves that in December 2001 and January 
    2002 Mr. Stanton was mentally sound, though failing physical health.  
    At the time in question Mr. Stanton was 82 years old, living independently, 
    reading books, handling his own mail, paying his own bills, and managing his 
    own affairs (financial and otherwise) without assistance or the need of it 
    from others.  He made his own arrangements to execute a new Will in contemplation 
    of his impending marriage.  He, alone, gave instructions to his solicitor 
    and executed his Will.  There is no evidence from which one could reasonably 
    conclude that he was suffering from any form of dementia or that he was failing 
    mentally.

[33]      
    The evidence shows that Mr. Stanton clearly understood the extent of his estate 
    and the circumstances of all those who might reasonably stand to benefit from 
    it upon his death.  Mr. Stanton had a relatively modest and contained 
    estate built up over a life-time with his recently deceased wife.  Mr. 
    Stanton knew that his estate included ownership of the family home, and he 
    was alive to its potential value in the real estate market.

[34]      
    Mr. Stanton had only one child, a daughter with whom he was close and in frequent 
    contact.  He also had a new wife, with whom he had been in a relationship 
    for about six months prior to the execution of his Will.  Mr. Stanton 
    knew that his second wife had young children for whom she was responsible.

[35]      
    The evidence establishes that Mr. Stanton intended that, upon his death, the 
    bulk of his estate would go to his daughter as a beneficiary under his Will 
    and as a surviving joint tenant.  There is no evidence of any other expressed 
    intention.  In keeping with this intention, when Mr. Stanton decided 
    to remarry he prepared a Land Transfer and a consulted a solicitor about a 
    new Will.  These were rational and sensible steps to further his intentions.

[36]      
    I reject the suggestion that execution of the Land Transfer was inconsistent 
    with either Mr. Stantons Will or with the evidence of his alleged desire 
    to provide for his new wife and, therefore, indicative of a lack of testamentary 
    capacity and/or a lack of knowledge and approval of the contents of the Will 
    .  As to the former, I am satisfied that these steps are complementary 
    and consistent with his intentions.  As to the latter, there is no evidence 
    from which I might reasonably conclude that Mr. Stanton was precluded from 
    providing for the plaintiff, if he so desired, merely because he put his daughter 
    on title as a joint tenant.

[37]      
    The Will in question is short and simple.  In essence it leaves Mr. Stantons 
    cars to the plaintiff and the residue of his estate to his daughter.  
    It accords with the defendants testimony that there existed a long-time family 
    understanding that Jo-Ann Stanton would inherit the family home.  This 
    testimony is corroborated by a hand-written Land Transfer prepared by Mr. 
    Stanton, which pre-dated the execution of the will.

[38]      
    The evidence shows that Mr. Stanton reviewed the Will with his solicitor before 
    signing it.  His solicitor had no concerns about Mr. Stantons testamentary 
    capacity and I find that there is nothing unusual about the Wills provisions.  
    In relation to Mr. Stantons comprehension of the contents of the Will and 
    its effect, it is noteworthy that the plaintiff testified that Mr. Stanton 
    accurately recounted to her the provisions of the Will shortly after it was 
    signed; moreover, the plaintiff agreed that Mr. Stanton was, at the time, 
    mentally competent.

[10]

In addition to the express finding of mental competence, Mr. Justice 
    Bernard considered and rejected the submission that circumstances existed 
    which should excite the suspicion of the court:

[39]      
    I have carefully considered the litany of alleged suspicious circumstances; 
    however, in light of the foregoing findings I am unable to conclude that any 
    of them, individually or in combination, are even remotely suspicious.  
    They are neither capable of exciting the suspicions of the court with respect 
    to Mr. Stantons knowledge and approval of the Will nor do they call into 
    question Mr. Stantons mental capacity.

[11]

On this appeal,  Mr. Henderson on behalf of Ophelia Stanton, submits 
    Mr. Justice Bernard erred:  in failing to give due regard to the pleadings 
    of Jo Ann Stanton in the Wills Variation action concerning Mr. Stantons lack 
    of capacity at or about the time of making the will;  in failing to give effect 
    or due regard to Jo Ann Stantons evidence concerning his lack of capacity; 
    and in failing to find that circumstances existed with respect to the preparation 
    and execution of the Will that excite the suspicion of the court.  He contends 
    that had adequate consideration been given to the first two matters or had 
    suspicious circumstances been found to exist, the trial judge was required 
    to determine whether Mr. Stantons testamentary capacity was sufficient to 
    rebut the suspicious circumstances, and that the trial judge erred in failing 
    to take this analytical step.

[12]

The first submission concerns portions of the amended statement of 
    defence filed by Jo Ann Stanton in the Wills Variation action in which she 
    pleads that Ophelia Stanton exerted undue influence upon Mr. Stanton in the 
    matter of his decision to marry, in particular this paragraph:

[31]      
    The Executrix says the Deceased lacked the appreciation and insight of the 
    consequences resulting from this Marriage and did not have the mental capacity 
    to enter into the Marriage given the undue influence exercised by the Plaintiff 
    and the ill health of the Deceased at the time of the Marriage.

[13]

That pleading, as I read it, relates to an allegation of undue influence 
    and some deficiency in Mr. Stantons mental capacity
in regards to entry 
    into the marriage
in December 2001.  Pleadings, however, are not evidence.  
    On its face this paragraph is clearly a pleading relating to the marriage 
    and not a pleading in relation to the Will.  Thus it cannot be seen as an 
    admission that Mr. Stanton lacked mental capacity to make the Will in January 
    2002.  As it is neither an admission on the issue in this case, nor evidence, 
    it follows that it was not an error for the trial judge to fail to advert 
    to it.

[14]

The second submission on behalf of Ophelia Stanton concerns the effect 
    of a portion of the examination of Jo Ann Stanton in which she testified that 
    her position is that Mr. Stanton was mentally incapable of making a decision 
    concerning his marriage.  However, in the same portion of her evidence she 
    also advanced her view that her father was mentally capable of making a decision 
    concerning his estate plan.  I do not read her evidence as ever contrary to 
    this latter position, and taken as a whole her evidence amounts to no more 
    than her father was vulnerable to influence in the matter of his marriage.  
    There was, therefore, in my view, no misapprehension of Jo Ann Stantons evidence 
    or failure to consider vital evidence contrary to the position advanced by 
    Jo Ann Stanton at the trial, and I see no error in the fashion in which the 
    trial judge considered her evidence.

[15]

These two submissions on which I have now expressed my view were in 
    aid of the submission that circumstances existed with respect to the preparation 
    and execution of the Will that should excite the suspicion of the court.

[16]

Determination of the existence, or not, of such circumstances is a 
    matter within the purview of the trial judge.  An appeal, of course, is not 
    a fresh trial.  This Court is not at liberty to interfere with the findings 
    of fact, inferences of fact, or findings of credibility, absent a palpable 
    and overriding error:
Housen v. Nikolaisen
, 2002 SCC 33, [2002] 2 S.C.R. 235.

[17]

On my review of the evidence, 
    I do not see the error urged upon us by Ophelia Stanton.  The trial judge 
    gave full and, in my view, unassailable, reasons for his conclusion that the 
    circumstances were not suspicious.  Further, he made a finding of fact that 
    Mr. Stanton was mentally capable at the time he made his new will and, again, 
    gave reasons for that conclusion.

[18]

It is true that some of the evidence 
    the trial judge relied upon to come to his conclusion on mental capacity came 
    from Jo Ann Stanton, who stood to gain from a conclusion favourable to her.  
    That is not, however, a basis upon which to interfere with the factual conclusions 
    of the trier of fact.  In any case, there was ample evidence supporting Jo 
    Ann Stantons opinion of her fathers competence in this matter and supporting 
    the conclusions that Mr. Stanton was competent and that the circumstances 
    were not suspicious.  This evidence included the family relationships formed 
    in earlier family life and the expectations of Mr. Stanton and his first wife, 
    the sequence of events including Mr. Stantons demonstrated intention to transfer 
    the property into joint tenancy at a time that pre-dated his new will, and 
    Mr. Stantons conversations with Ophelia Stanton shortly after the making 
    of the Will and the transfer of the property.  The latter, in particular, 
    demonstrated lucidity on the critical issues.

[19]

In addition to the evidence of 
    the parties, there was evidence from the solicitor.  We heard criticism of 
    the fashion in which this solicitor performed her professional duties on behalf 
    of Mr. Stanton.  I think the thrust of this submission was that because the 
    solicitor did not make a comprehensive assessment of Mr. Stantons mental 
    capacity, the trial judge should have doubted the sufficiency of the evidence 
    adduced by the executrix as to his mental capacity, and his failure to do 
    so demonstrated error.  I do not agree.  While it might have been helpful 
    to have some notes from the solicitor as to her assessment of Mr. Stantons 
    mental capacity, the absence of this evidence simply meant that the trial 
    judge was required to consider the evidence that was before him to determine 
    whether the executrix had met her burden.  He concluded that she had met her 
    burden, and I cannot say this conclusion was an error.

[20]

In my view, there is no basis 
    upon which to interfere with the order made.  I would dismiss the appeal.

[21]

Last, Mr. Henderson made submissions 
    on the matter of costs, urging this Court to award costs of the trial and 
    of the appeal from the Estate.  The trial judge has not yet made an order 
    as to costs.  The order disposing of the substance of the action was entered 
    without finality on that issue.  That is regrettable as it means that we cannot 
    consider the issue of costs of the trial at this time.  Nor, in my view, should 
    we at this time consider costs of the appeal as the costs of the appeal should 
    not be determined without knowing the disposition of costs at trial.

[22]

In summary, I would dismiss the 
    appeal with liberty to the parties to make submissions on costs of the trial 
    and the appeal when the order of costs in the Supreme Court of British Columbia 
    is resolved and an order as to costs entered.

The Honourable 
    Madam Justice Saunders

I AGREE:

The Honourable Madam Justice Newbury

I AGREE:

The 
    Honourable Mr. Justice Frankel


