Ottawa, Ontario, February 16, 2007
PRESENT: The Honourable Madam Justice Hansen
BETWEEN:
and
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
AS REPRESENTED BY THE MINISTER OF INDIAN AFFAIRS
AND NORTHERN DEVELOPMENT and REGIS WALOVEN
IN HER CAPACITY AS ADMINISTRATOR OF THE ESTATE OF
BERNADETTE SAPPIER
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
Introduction
[1] Pursuant to section 47 of the Indian Act, R.S.C. 1985, c. I-5, (Indian Act) the Appellant appeals a decision in which the Minister’s delegate (Estate Officer or Officer) approved the will of Bernadette Sappier and appointed Ms. Waloven administrator of the estate.
Facts
[2] On January 21, 2006, six days before her death, Bernadette Sappier (the testator) executed a document purporting to be her will. On that day, Regis Waloven and Sylvia Craft, Ms. Sappier’s sisters, together with Mel Perley, Ms. Sappier’s niece went to visit the testator at her home where she resided with the Appellant, Walter Sappier, on reserve at the Tobique First Nation. During this visit, the will at issue in this proceeding was written and executed.
[3] The Appellant states that he is the husband of the testator to whom he was married for more than fifty years. It would appear, however, that in the early 1960s, Ms. Sappier divorced the Appellant and married an individual with whom she lived for a number of years following which she returned to live with the Appellant. It is not known if the Appellant and Ms. Sappier remarried.
[4] The handwritten will reads:
I Bernadette Sappier wish for Regis Waloven to take care of my possession to do as I wish. Grant my wishes.
[5] The will then lists a number of household items, personal belongings, a house on the reserve owned by the testator that she rented out, a car and the names of three banks. The will is signed by the testator and appears to be witnessed by Sylvia Craft.
[6] About one week following her sister’s death, Ms. Waloven produced the will to Indian and Northern affairs Canada (INAC). On February 3, 2006, the Estate Officer wrote to Ms. Waloven asking her for instructions as to how the estate administration should proceed since no executor was named in the will and she was the only named beneficiary. Ms. Waloven applied to be appointed administrator of the estate. On February 15, 2006, the Officer approved the will and appointed Ms. Waloven to be the administrator of the estate.
[7] On February 16, 2006, the Appellant contacted INAC to inquire about having someone appointed to administer his wife’s estate. Once informed of the will and the appointment, the Appellant contested the validity of the will and the appointment of Ms. Waloven as administrator.
[8] In support of his contestation, the Appellant provided a letter from the testator’s family doctor dated February 20, 2006. It states:
I was indeed Bernadette’s physician and attended her through to the time of her death. This lady indeed had a carcinoma of the lung, with multiple secondaries to her brain, and was taking narcotics sedation which may well impair her rational thinking, understanding, and appreciating legal documents. The patient finely died as a result of the cerebral secondaries.
[9] The Appellant also submitted two affidavits. In his own affidavit dated February 24, 2006, the Appellant deposes that for the week prior to her death, the testator was on pain medication, slept a lot and did not appear to recognize him or others who came to visit her. He also states that while the testator’s sisters and niece came to visit her at the time the will was signed, he stayed in the living room and thought that they were only having a visit. He does not believe that the testator would have left everything to her sister or that she was mentally competent to sign a will.
[10] The second affidavit dated February 24, 2006 was sworn by Orpha Sutherland, the Appellant’s care giver since July 2005. She deposes that she was in the home every day between the hours of 4:00 p.m. and 9:00 a.m. during the week prior to the testator’s death. She swears that during this time the testator was unresponsive and did not appear to recognize her or most of the people who came to visit. She also states that when the testator’s sisters and niece came to visit, they did not want her to enter the room and she overheard them mentioning a will.
[11] On March 3, 2006, INAC advised Ms. Waloven that they had received correspondence challenging the validity of the will and recommended that she halt the estate administration process during their review of the file. On the same day, INAC informed counsel for the Appellant of their file review and that they had asked Ms. Waloven to halt the administration of the estate pending the review.
[12] The Estate Officer contacted a number of individuals who knew the testator. On March 30, 2006 the Officer interviewed the testator’s sister Sylvia Craft who said that although the testator was on pain medication, the testator knew everything and recognized her, her brother Bud, Father Curtis and Chief Stewart Paul. Ms. Craft stated that she was present when the testator signed her will, the testator was not forced into signing her will and the testator even asked her niece Mel Perley to watch the door so that the Appellant would not enter the room while she was telling Ms. Waloven what to write in the will.
[13] On March 30, 2006, the Officer also interviewed Roxanne Sappier, the testator’s niece who also helped care for the Appellant and was at their home almost every day until the death. Ms. Sappier said that she was present when the testator told her sister, Ms. Waloven, where she kept her rings. When Ms. Waloven counted the seven rings she had located, the testator told her there were three more and Ms. Waloven located them. She also confirmed that the testator signed her own cheques up until the time of her death and had made arrangements for someone to assist the Appellant.
[14] On April 19, 2006, the Officer spoke with Gerald Bear, a councillor at Tobique First Nation, He stated that the testator recognized him when he visited her on the day she left the hospital.
[15] On April 19, 2006 a manager with INAC spoke with Stewart Paul, Chief of the Tobique First Nation. Chief Paul stated that he had visited the testator prior to her death and added:
I have known her all my life, she used to be my client (legal advisor) until we had a spat, and when I went to see her on that day she was alert as she always has been and even remembered my home phone number when I asked her to call me if she changed her mind and wanted another Will written.
[16] On May 4, 2006, counsel for INAC informed the Appellant’s counsel that with regard to the validity of the will, the Minister’s decision had been made on February 15, 2006 and, therefore, the two month timeframe within which an appeal could be brought had expired. Counsel for INAC also advised that the concerns regarding the committal service and other estate administration matters would have to be resolved with the administrator since INAC no longer had a role in the administration of the estate once an administrator had been appointed.
[17] On May 10, 2006, the Estate Officer advised Ms. Waloven that the review had been concluded and that she would remain the administrator.
[18] The Appellant filed a Notice of Appeal of the May 10, 2006 decision on June 7, 2006.
Issues
[19] The Appellant frames the issues as follows:
- Should the will of Bernadette Sappier be declared void, pursuant to section 46(1) of the Indian Act, R.S.C 1985, c.I-5, based on one [of] the grounds listed in subsections 46(1) (a), (b), (c), and/or (f) of the Act?
- Should the May 10, 2006 decision of the Minister’s delegate to validate the will and appoint Ms. Waloven as administrator of the Estate be set aside, pursuant to section 47 of the Indian Act?
Relevant Statutory Provisions
[20] Sections 46 and 47 of the Act provide:
Analysis
[21] In summary, the Appellant submits the Minister’s delegate should have declared the will to be void because the will was executed under undue influence and the testator lacked testamentary capacity at the time of the will’s execution. The Appellant maintains that the decision was unreasonable because the Officer failed to take into account the information and material provided by the Appellant and based her decision entirely on the information provided by the Respondent.
[22] Although the Respondent initially took the position that the decision under review was made on February 15, 2006 and, therefore, the Appellant’s appeal was filed beyond the two month time period provided in the legislation, the Respondent did not press this issue and urged the Court to resolve this matter on its merits. Given my conclusions regarding the merits of the appeal, a consideration of whether this appeal was filed beyond the statutory time limit is unnecessary.
[23] Both parties rely on Justice Dawson’s decision in Morin v. Canada 2001 FCT 1430 at paragraphs 58 and 59, where she discussed the applicable standard of review of a Minister’s decision on an appeal pursuant to section 47 of the Act as follows:
... The pragmatic and functional approach requires consideration of the existence of a privative clause, the nature of the decision under review, the purpose of the legislation, and the expertise of the decision-maker.
In the present case, there is no privative provision, the nature of the decision as to whether the 1986 will evidences a testamentary intent is substantially one of fact, the purpose of the relevant provisions of the Indian Act are to balance individual rights (and so the issues are not polycentric) and there is no evidence of any particular expertise on the part of the decision-maker. The standard of review should therefore fall somewhere on a spectrum between reasonableness simpliciter and patent unreasonableness.
[24] Since Justice Dawson concluded that the decision was patently unreasonable, it was not necessary for her to decide whether the applicable standard in that case was reasonableness simpliciter or patent unreasonableness.
[25] In the present case, the Appellant submits that the standard ought to be reasonableness simpliciter without offering any analysis. The Respondent submits that the standard ought to be patent unreasonableness given the expertise on the part of the decision maker. The Respondent notes that INAC has created a subgroup to deal with Indian estate matters and that the individuals in this group deal with these types of matters on a daily basis.
[26] At issue in this proceeding is whether the will ought to have been declared void pursuant to subsections 46(1)(a), (b), (c) and (f) the Act. As these are questions of mixed fact and law and the Respondent has not persuaded me that the decision makers in the subgroup have greater expertise than the Court with respect to the application of the law to the facts in relation to the questions under this statutory provision, I find that the appropriate standard of review in this case is reasonableness simpliciter.
[27] As noted earlier, the Appellant submits that the will ought to be voided pursuant to subsections 46(1)(a), (b), (c) and (f) of the Act. However, the Appellant did not advance any arguments or evidence as to how the terms of the will would impose hardship on persons for whom the testator had a responsibility to provide or how the terms of the will are against the public interest. Accordingly, I will not consider these matters.
[28] The next question is whether the testator was under undue influence at the time she executed her will. In his text Canadian Law of Wills, 4th ed. at page 42, Thomas G. Feeney states:
The burden of proof of undue influence is on the attackers of the will to prove that the mind of the testator was overborne by pressure exerted by another person. It is not enough to show mere persuasion; the influence exerted on the testator must amount to coercion to be undue influence. Coercion has been defined to mean that the testator has been put in such a condition of mind that is he could speak his wishes to the last he would say “This is not my wish but I must do it.”
[29] In Pocock v. Pocock et al., [1952] O.R. 155 (Ont. C.A.), the Court of Appeal considered the jurisprudence in relation to undue influence and affirmed that the burden of proof rests with the party alleging undue influence to affirmatively show that those alleged to have unduly influenced the testator did in fact exert their power over the testator and it was by means of the exercise of this power over the testator that the will was obtained. Suspicion, motive or opportunity is not sufficient, in the absence of clear evidence, to prove undue influence.
[30] The Appellant points to the following facts in support of the assertion that the testator was under undue influence at the time of the execution of the will: the will was prepared by one or both of the testator’s sisters; the will purports to bequeath all of the testator’s property to one of the sisters present at the time the will was executed; and the role of the niece watching the door while the will was being prepared and executed.
[31] It is not necessary to review the facts upon which the Respondents rely to show that the testator was not subject to under undue influence. In my view, the facts relied on by the Appellant are, at best, circumstantial in nature and fall far short of establishing with clear evidence that the testator was coerced by one or all of those present at the time into making the will.
[32] The Appellant also submits that the will should have been declared void on the basis of a lack of testamentary capacity. In Re Schwartz, [1970] 2 O.R. 61-84 (Ont. C.A.) aff’d (1971), 20 D.L.R. (3d) 313 (S.C.C.), Justice Laskin set out the test for testamentary capacity as follows:
… The testator must be sufficiently clear in his understanding and memory to know, on his own, and in a general way (1) the nature and extent of his property, (2) the persons who are the natural objects of his bounty and (3) the testamentary provisions he is making; and must, moreover, be capable of (4) appreciating these factors in relation to each other, and (5) forming an orderly desire as to the disposition of his property.
[33] It is well established that there is a presumption of testamentary capacity. However, as Justice Sopinka stated in Vout v. Hay, [1995] 2 S.C.R. 876 (S.C.C.) at paragraph 27:
Where suspicious circumstances are present, then the presumption [of testamentary capacity] is spent and the propounder of the will reassumes the legal burden of proving knowledge and approval. In addition, if the suspicious circumstances relate to mental capacity, the propounder of the will reassumes the legal burden of establishing testamentary capacity. Both of these issues must be proved in accordance with the civil standard. There is nothing mysterious about the role of suspicious circumstances in this respect. The presumption simply casts an evidentiary burden on those attacking the will. This burden can be satisfied by adducing or pointing to some evidence which, if accepted, would tend to negative knowledge and approval or testamentary capacity. In this event, the legal burden reverts to the propounder.
[34] In support of his position that the testator lacked testamentary capacity, the Appellant submitted the letter from the testator’s family doctor referred to earlier. The Appellant argues that this letter shows that the testator was not mentally competent at the time the will was executed.
[35] I accept the Respondent’s submission that the letter gives no indication of the mental state of the testator at the time she gave the instructions and executed her will. Although the letter indicates that mental impairment is a potential consequence of the drugs, it does not indicate if the testator was so affected at the relevant time. As well, the letter does not provide any information regarding when the doctor last saw the testator.
[36] The Appellant also relies on the facts related in his affidavit and the affidavit of Orpha Sutherland. Neither affiant, however, indicates whether this non-recognition occurred only on a few occasions or was continuous throughout the relevant time. Specifically, there is no indication with respect to the testator’s state of mind at the time she executed her will.
[37] The Appellant’s evidence is directly contradicted by the evidence of Roxanne Sappier and Chief Stewart Paul detailed above. Although Ms. Sappier was not present at the time of the execution of the will, she was also in the home every day for the week prior to the testator’s death. Even though it is not entirely clear when Chief Paul spoke to the testator, I infer that it was after the execution of the will since he told the testator to call him if she wished to have another will written.
[38] Additionally, the Officer obtained statements from the testator’s sisters who were present at the time the will was executed. While I appreciate that Ms. Waloven’s statement is that of an interested party, the testator’s other sister also stated that the testator was clear minded, listed all her assets and wanted Ms. Waloven to deal with the estate.
[39] Having regard to all of the evidence, I am unable to conclude that the Officer’s decision regarding the validity of the will was unreasonable. Accordingly, the application for judicial review is dismissed. Given the particular circumstances of this case, there will be no order of costs in favour of the Respondent.
[40] At the request of the parties, the style of cause was amended at the hearing by substituting the Attorney General of Canada in the place of Her Majesty the Queen in Right of Canada as a Respondent. The Order that follows will reflect this amendment.
JUDGMENT
THIS COURT ADJUDGES THAT:
1. The style of cause is amended by substituting the Attorney General of Canada in the place of Her Majesty the Queen in Right of Canada as a Respondent.
2. The application for judicial review is dismissed without costs.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-945-06
STYLE OF CAUSE: Walter Sappier v. Her Majesty the Queen in Right of Canada as represented by The Minister of Indian Affairs and Northern Development and Regis Waloven in her capacity as Administrator of the Estate of Bernadette Sappier
PLACE OF HEARING: Fredericton, New Brunswick
DATE OF HEARING: February 5, 2007
REASONS FOR JUDGMENT: HANSEN J.
APPEARANCES:
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Elizabeth Watters-Gray
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Jake Harms
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SOLICITORS OF RECORD:
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Elizabeth Watters-Gray Perth-Andover, NB
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John H. Sims, Q.C. Ottawa, On |