SUPREME COURT OF NOVA SCOTIA Citation: Fawson Estate v. Deveau, 2015 NSSC 355

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1 SUPREME COURT OF NOVA SCOTIA Citation: Fawson Estate v. Deveau, 2015 NSSC 355 Date: Docket: Hfx No Registry: Halifax Between: James Robert Fawson, James Robert Fawson, as the personal representative of the Estate of Theresa Rose Fawson, Deceased and Francis John Fawson as the personal representative of the Estate of Margret Anne Fawson, Deceased v. Sandra Marie Deveau and Patrick Joseph Fawson Plaintiffs Defendants LIBRARY HEADING Judge: Heard: Oral Decision: The Honourable Justice C. Richard Coughlan September 16 & 17, 2015, in Halifax, Nova Scotia September 17, 2015 Written Release: December 10, 2015 Counsel: Keith MacKay, for the Plaintiffs, James Robert Fawson, James Robert Fawson, as the personal representative of the Estate of Theresa Rose Fawson, Deceased and Francis Joseph Fawson, as the personal representative of the Estate of Margaret Anne Fawson, Deceased Clarke N. Kent, for the Defendant, Sandra Marie Deveau, Patrick Joseph Fawson, Self-represented

2 Subject: Summary: Issues: Summary Judgment One of the plaintiff s moved for summary judgment on the basis the issue of whether the maker of certain beneficiary designations had capacity had been decided in an application for proof in solemn form of the maker s will and therefore issue estoppel applies to the beneficiary designations. Is this an appropriate case for summary judgment? Result: Motion dismissed. Issue estoppel did not apply. In the application for proof in solemn form the judge found there were suspicious circumstances which displaced the presumption of testamentary capacity, and the burden shifted to the proponent of the will to show the testatrix had testamentary capacity. The proponent did not satisfy the burden. Here the issue is the maker s capacity at the time of giving instructions for and executing the documents in question. A different issue than in the proof in solemn form application. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET.

3 SUPREME COURT OF NOVA SCOTIA Citation: Fawson Estate v. Deveau, 2015 NSSC 355 Date: Docket: Hfx No Registry: Halifax Between: James Robert Fawson, James Robert Fawson, as the personal representative of the Estate of Theresa Rose Fawson, Deceased and Francis John Fawson as the personal representative of the Estate of Margret Anne Fawson, Deceased v. Sandra Marie Deveau and Patrick Joseph Fawson Plaintiffs Defendants Judge: Heard: Oral Decision: The Honourable Justice C. Richard Coughlan September 16 & 17, 2015, in Halifax, Nova Scotia September 17, 2015 Written Release: December 10, 2015 Counsel: Keith MacKay, for the Plaintiffs, James Robert Fawson, James Robert Fawson, as the personal representative of the Estate of Theresa Rose Fawson, Deceased and Francis Joseph Fawson, as the personal representative of the Estate of Margaret Anne Fawson, Deceased N. Kent Clarke, for the Defendant, Sandra Marie Deveau, Patrick Joseph Fawson, Self-represented

4 Page 2 By the Court: [1] James Robert Fawson, personally and as personal representative of the Estate of Theresa Rose Fawson, deceased and Francis John Fawson, as personal representative of the Estate of Margaret Anne Fawson commenced action against Sandra Marie Deveau and Patrick Joseph Fawson for declarations that certain beneficiary designations in favour of Ms. Deveau and Patrick Joseph Fawson are invalid; that the plaintiffs are entitled to certain death benefits; the defendants have received the death benefits on a constructive trust for the benefit of the plaintiffs and judgment against Ms. Deveau and Patrick Joseph Fawson for the amount of the death benefits. [2] Francis John Fawson, as personal representative of the Estate of Margaret Anne Fawson, moves for summary judgment against the defendants. [3] The test for summary judgment was set out by Saunders, J.A., in giving the majority judgment in Burton Canada Corporation v. Coady, 2013 NSCA 95, where he stated at paragraphs 27 and 28: [27] In Guarantee the Supreme Court enunciated the test for summary judgment. But because the Court s clear statement of the test is not always reiterated with precision, the Court s words bear repeating. The Court said: 27 The appropriate test to be applied on a motion for summary judgment is satisfied when the applicant has shown that there is no genuine issue of material fact requiring trial, and therefore summary judgment is a proper question for consideration by the court. See Hercules Managements Ltd. v. Ernst & Young, [1997] 2 S.C.R. 165, at para. 15; Dawson v. Rexcraft Storage and Warehouse Inc. (1998), 164 D.L.R. (4th) 257 (Ont. C.A.), at pp ; Irving Ungerman Ltd. v. Galanis (1991), 4 O.R. (3d) 545 (C.A.), at pp Once the moving party has made this showing, the respondent must then establish his claim as being one with a real chance of success (Hercules, supra, at para. 15). [28] That statement was affirmed by the Supreme Court of Canada in Canada (Attorney General) v. Lameman, 2008 SCC 14 where the Court per curiam reiterated the test for summary judgment: [11] For this reason, the bar on a motion for summary judgment is high. The defendant who seeks summary dismissal bears the evidentiary burden of showing that there is no genuine issue of

5 Page 3 and at paragraph 38: material fact requiring trial : Guarantee Co. of North America v. Gordon Capital Corp., [1999] 3 S.C.R. 423, at para. 27. The defendant must prove this; it cannot rely on mere allegations or the pleadings: Ontario Ltd. v. Ontario Jockey Club (1995), 21 O.R. (3d) 547 (C.A.); Tucson Properties Ltd. v. Sentry Resources Ltd. (1982), 22 Alta. L.R. (2d) 44 (Q.B. (Master)), at pp If the defendant does prove this, the plaintiff must either refute or counter the defendant s evidence, or risk summary dismissal: Murphy Oil Co. v. Predator Corp. (2004), 365 A.R. 326, 2004 ABQB 688, at p. 331, aff d (2006), 55 Alta. L.R. (4th) 1, 2006 ABCA 69. Each side must put its best foot forward with respect to the existence or non-existence of material issues to be tried: Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1996), 28 O.R. (3d) 423 (Gen. Div.), at p. 434; Goudie v. Ottawa (City), [2003] 1 S.C.R. 141, 2003 SCC 14, at para. 32. The chambers judge may make inferences of fact based on the undisputed facts before the court, as long as the inferences are strongly supported by the facts: Guarantee Co. of North America, at para. 30. [38] This was Burton s motion for summary judgment. Burton had the burden of satisfying Justice Warner that there were no genuine issues of material fact requiring a trial. That is stage 1 in the analysis. During this stage there was no burden upon Mr. Coady to do anything. Burton had the onus of satisfying the Chambers judge that summary judgment was a proper question for consideration. In order to do that Burton bore the evidentiary burden of showing that there was no genuine issue of material fact which would necessitate a trial. It failed to do so. [4] Is there an issue of material fact requiring a trial? The plaintiff bears a burden of showing there is no issue of material fact requiring a trial. At this stage, there is no burden on Ms. Deveau or Patrick Joseph Fawson to do anything. [5] The plaintiffs submit Margaret Anne Fawson did not have necessary capacity to make the beneficiary designations in question, as she was afflicted with delusions from September 2001 until her death that her mother Theresa Rose Fawson was not incompetent; that she was capable of taking care of her mother by herself and Francis Fawson and James Fawson orchestrated their mother s death for financial gain; that Margaret Anne Fawson s previous good relations with her brothers, James and Francis, changed as a result of her delusions; and that the delusions influenced Margaret Anne Fawson s designations of Mr. Deveau and

6 Patrick Joseph Fawson as beneficiaries of her pension and registered retirement savings plans. [6] The central issue is whether Margaret Anne Fawson had the capacity to make the beneficiary designations she made. Page 4 [7] The only evidence which addresses Margaret Anne Fawson s capacity is the judgment of Hood, J. in Re: Fawson Estate, 2012 NSSC 55, which dealt with an application for proof in solemn form of a purported will of Ms. Fawson which disinherited her brothers, James and Francis Fawson. In the judgment Hood, J. stated at paragraph 210: [210] In this case, Dr. Grainne Neilson was accepted as an expert able to give opinion evidence as a psychiatrist. Her report is Exhibit 2. She was asked three questions: 1. Is it possible for a psychiatric disorder such as a persecutory delusional disorder to have a narrow scope such that it affects only one aspect of persons psychosocial functioning, leaving the remainder of their lives and functioning relatively intact? 2. Based on interviews of family members and collateral sources, but without the benefit of interviewing the individual, is it possible to render an opinion about the potential presence of a mental disorder in Ms. Fawson? 3. Is it possible that the presence of a mental disorder impacted Ms. Fawson s testamentary capacity? and at paragraphs 213 to 216: [213] With respect to question 2, she answered as follows at page 11: The answer is yes, but the opinion is speculative at best. She referred to the testimony of relatives and or friends (who may be far from disinterested). [214] Her answer to question 3 at page 12 was as follows: The answer is, yes it is possible. Whether it is probable is, ultimately, a judicial determination and I will try to outline for you the factors that will likely be taken into consideration in this enquiry. [215] She continued on p. 12:

7 Page 5 As noted above, first and foremost among the difficulties in performing an assessment of an individual s testamentary capacity is that in the usual case it is not a contemporaneous evaluation but instead involves a retrospective assessment of a deceased s mental state (based on whatever information that may be available), and then applying this analysis to the basic capacity requirements. Except in clear-cut cases of dementia or mental retardation, the conclusion that any mental symptoms directly influenced the action at the time of writing the Will becomes quite a speculative undertaking. [216] She then said on p. 13: It is speculative of course to surmise Ms. Fawson s decisionmaking in relation to the exclusion of James Fawson from her Will. No prior Will were available for inspection to determine whether this represented a change of attitude, or whether this was actually her competent wish. However, it is not inconceivable that her unusual (and false) beliefs related to his working against her, and to his orchestrating the hasty death of their mother for his own financial gain played a role in this. Anyone who was seen to be supporting James Fawson in his effort, and who might also be entitled to her bounty, was also excluded. Thus, she specifically excluded her brother James and her brother Frank, who sided with James Fawson in his decisions. and at paragraph 221: [221] Because of the limitations of her report, which she recognized, I conclude I should give little weight to her speculative opinions which are her answers to questions 2 and 3. However, having her expert opinion on the nature of a delusion and how it manifests itself at times and can be unnoticed most of the time is helpful to me in assessing whether there were suspicious circumstances surrounding the making of Margaret Fawson s will. [8] Justice Hood found there were suspicious circumstances which displaced the presumption of testamentary capacity, and the burden shifted to the proponent of the will to show on a balance of probabilities the testatrix had testamentary capacity. Hood, J. found the proponent of the will had not satisfied her that Margaret Anne Fawson had testamentary capacity at the time of execution of the will. Whether a testator had the requisite mental capacity is a question of fact to be determined from all the circumstances. (See Feeney s Canadian Law of Wills, Fourth edition, s. 2.4 Release 44-6/2013).

8 Page 6 [9] The plaintiff submits as a result of Justice Hood s findings in Re: Fawson Estate supra, issue estoppel applies to Hood, J s findings that Margaret Anne Fawson irrationally believed (a) her mother was not incompetent; (b) she was capable of taking care of her mother by herself; (c) Francis and James Fawson orchestrated their mother s demise for financial gain. That Margaret Anne Fawson held those irrational beliefs both before and after the time she executed her will and specifically from September 2001 until November That James and Francis previously good relationships with their sister changed following September 2001 as a result of her delusions. [10] The law is clear, the time for determining capacity is the time of giving instructions for and executing the document in question. In this case there is no evidence of the instructions or execution of the beneficiary designations. As the issue of the beneficiary designations was not before Hood, J., in Re: Fawson Estate, supra, the findings in that case do not result in issue estoppel as sought by the plaintiff. In giving the court s judgment in Behner v. Bank of Montreal, 2010 NSCA 54, Oland, J.A., addressed res judicata stating at paragraph 25: [25] In Kameka v. Williams, 2009 NSCA 107, 282 N.S.R. (2d) 376 (CA), Beveridge, J.A. reviewed the law pertaining to the doctrine of res judicata. He stated: [13] Detailed statements can be found of the constituent elements necessary to establish that the doctrine of res judicata is applicable (see for example George Spencer Bower and Sir Alexander Turner, The Doctrine of Res Judicata, 2nd ed. (London: Butterworths, 1969) at para. 19). These were compressed by the Alberta Court of Appeal in B.C. Ltd. v. Bank of Montreal, [1995] A.J. No. 862 where O'Leary J.A. wrote: [18] A prior judicial decision will not raise an estoppel by res judicata, either issue estoppel or cause of action estoppel, unless (i) it was a final decision pronounced by a court of competent jurisdiction over the parties and the subject-matter; (ii) the decision was, or involved, a determination of the same issue or cause of action as that sought to be controverted or advanced in the present litigation; and (iii) the parties to the prior judicial proceeding or their privies are the same persons as the parties to the present action or their privies.

9 Page 7 [11] In this proceeding the burden is on the applicant to establish, on a balance of probabilities, that there are no issues of material fact to be resolved at trial. I am unable to say there is no genuine issue of material fact requiring trial. [12] The issue of Margaret Anne Fawson s capacity at the time of making the beneficiary designations remains in issue. There being a material fact in dispute summary judgment is not available. The motion is dismissed. [13] Pursuant to Rule I will give directions for the conduct of the proceeding after hearing from the parties. [14] I ll award costs to the defendants in connection with this motion for summary judgment after hearing from all the parties and reviewing tariff C, which deals with chambers applications, bearing in mind this motion comprised from 9:30 12:30 September 16th and another appearance on September 17th for decision. Noting that the matter is not determinative of the matter. I will award costs in the amount of $2, to each defendant. Coughlan, J.

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