COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Barkwill v. Parchomchuk,

 

2011 BCCA 207

Date: 20110421

Docket: CA038340

Between:

Richard Harry Barkwill and Raymond Skoreyko,
Executors of the Estate of Gweneth Helena Gilmour

Respondents

(Plaintiffs)

And

Diane Parchomchuk, Nancy Louise Hunka, Joan Skeet
also known as Joan Francis Skeet, Robin Anne Wyndam,

Anna Christina Saprunoff, Mary Alexandra Ehmann,
Richard Harry Barkwill, Kathleen Gwen Aten,
John Robert Barkwill, Ronald Gray Barkwill,
Kathryn Ellen McNaughton, and Malcolm Kenneth McNaughton

Respondents

(Defendants)

And

Ronald Gray Barkwill

Appellant

(Defendant)

Corrected Judgment:  The text of the judgment was corrected at paragraph 12 where a change was made on 26 April 2011.

Before:

The Honourable Chief Justice Finch

The Honourable Madam Justice Neilson

The Honourable Mr. Justice Groberman

On appeal from:  Supreme Court of British Columbia, July 5, 2010,
(Barkwill v. Parchomchuk, 2010 BCSC 951, Penticton Docket No. 32737)

Counsel for the Appellant:

T.J. Johnston
C. Goodrich

Counsel for the Respondent:

D.M. King

Place and Date of Hearing:

Vancouver, British Columbia

April 1, 2011

Place and Date of Judgment:

Vancouver, British Columbia

April 21, 2011

Written Reasons by:

The Honourable Chief Justice Finch

Concurred in by:

The Honourable Madam Justice Neilson

The Honourable Mr. Justice Groberman

 

 


 

Reasons for Judgment of the Honourable Chief Justice Finch:

I.  Introduction

[1]             Ronald Barkwill appeals from the order of the Supreme Court of British Columbia, pronounced 5 July 2010 following a summary trial, finding the will of Ms. Gweneth Gilmour proven in solemn form.

[2]             The testatrix, Ms. Gilmour, died 8 June 2009 at the age of 83.  Her will, executed 10 May 2006, divided her substantial estate among surviving nieces and nephews.  Ronald Barkwill, a defendant in the action and the appellant, is one of those nephews.

[3]             Ronald Barkwill is treated differently under the will from some of the other beneficiaries, notably his brother and sisters.  Ronald Barkwill’s siblings receive a share of the estate’s capital, but he receives income from an annuity that the executors and trustees may in their sole discretion decide to distribute to him.

[4]             On 30 July 2009 Ronald Barkwill filed a caveat against the will alleging that it was invalid because the testatrix lacked testamentary capacity and was under the undue influence of the executors and beneficiaries of the will.  On 22 December 2009 the executors of Ms. Gilmour’s estate began this action seeking to have the will proved in solemn form. 

[5]             The executors filed their application for summary trial on 29 April 2010 and Ronald Barkwill responded on 28 May 2010 with an application for the executors to produce a list of documents and an affidavit verifying that list.

[6]             The chambers judge dismissed Ronald Barkwill’s applications and granted judgment in favour of the executors.  Ronald Barkwill appeals asserting that the chambers judge erred in disposing of the case by way of summary trial, in refusing further pre-trial discovery, and in admitting the affidavit evidence adduced by the executors.  At the conclusion of the hearing the appeal was dismissed with reasons to follow.  These are those reasons.

II.  Reasons for Judgment in the Supreme Court

[7]             The learned chambers judge summarized the affidavit evidence of both sides.  The executors submitted affidavits from Ms. Gilmour’s solicitor, physician, investment advisor, neighbour and nieces:

[7]        The deponents of those affidavits are unanimous in their observations and assessments of Ms. Gilmour in and around the time that she made her Will in May 2006. They say that she was a strong-willed and opinionated woman. According to these witnesses, Ms. Gilmour was mentally sharp. She was aware of her estate and finances, she knew who her family was, and she appreciated who among that group would have a claim on her estate. None of these deponents endorsed the notion that Ms. Gilmour was subject to influence by a beneficiary or an executor of the 2006 Will. In fact, all of these deponents thoroughly rejected the notion that Ms. Gilmour’s testamentary intentions could be or were subverted by influence from any person or persons.

...

[29]      The evidence demonstrated that right up to her death in 2008, Ms. Gilmour was mentally intact. Those persons who interacted with her observed her to respond to inputs and stimuli in a normal and expected fashion. They observed no abnormalities in her reaction to life’s events. They saw her deal appropriately with maintenance and upkeep of her home, nurture her garden, and keep up social contact with persons one would expect her to want to relate to.

[30]      More particularly, the evidence of her family physician was to the effect that she always impressed him as being mentally competent. Further, the evidence of her family solicitor, Mr. Bell, was to the effect that she was always careful and thorough in her dealings with him. Neither of these gentlemen described any behaviour of Ms. Gilmour that could be construed to demonstrate a lack of capacity to make her own Will.

[8]             The chambers judge summarized the affidavit of Ronald Barkwill at para. 16 of his reasons:

At best, Ronald Barkwill deposed that he thought that his aunt loved him (a point not contested in the other affidavits) and that she would have wanted him to have his gift in a lump sum, just like his brother and sisters were to receive. Ronald Barkwill did not, however, demonstrate that there was any basis for this latter belief.

[9]             The chambers judge identified the necessary requirements for disposition by way of summary trial (para. 11).  He concluded that there was sufficient evidence to make the findings of fact necessary to dispose of the issues between the parties and that there were no significant conflicts in the affidavit evidence on the issues between the parties.

[10]         The chambers judge dismissed Ronald Barkwill’s application for further pre-trial discovery, and his argument that the case was unsuitable for disposition by way of summary trial:

[10]      Ronald Barkwill also argues that he wishes to obtain the whole of the solicitor’s file relating to the preparation of Ms. Gilmour’s Will and the whole of her physician’s file as well. He says that until he receives those files, he cannot know whether evidence exists which may support his position that Ms. Gilmour lacked testamentary capacity or was subject to undue influence. Despite the passage of nearly half a year between the start of this proceeding and the date of this hearing, Ronald Barkwill has taken no steps to compel production of those records from the solicitor or the physician. Neither has Ronald Barkwill made a motion to cross-examine any of the deponents in favour of the Will. In the course of his submissions, Ronald Barkwill argued that he had not pursued production of documents because he believed that the matter had been settled between counsel six months ago. In his submissions, Ronald Barkwill did not evince any desire to cross-examine any deponents on their affidavits.

...

[14]      Be that as it may, even if Ronald Barkwill’s faith in a settlement had been reasonable, if he wished to oppose the summary judgment application, it was his duty to take such steps as prudence dictated. In military terms, this is known as “honouring the threat”. That is to say: it was not sufficient for Ronald Barkwill to come to the summary judgment application with an argument that if documents from third parties were produced – documents he had made no motion to obtain – then maybe something would turn up in them that could support his position. Instead, it was incumbent on Ronald Barkwill to make an application for production of the third-party documents and, if he wanted it, to cross-examine the deponents on their affidavits.

[15]      Ronald Barkwill did none of these things. Ronald Barkwill’s position amounted to a desire to delay the proceeding. His position was not, however, founded on any substantive need for delay.

[11]         The chambers judge considered whether the affidavits submitted by the executors were admissible evidence.  He concluded:

[22]      ...The affidavits under attack do contain numerous statements of conclusion by their makers. Those conclusions themselves are neither here nor there in this matter, and Ronald Barkwill has a valid objection to their admission into the record. I have, therefore, not paid any particular attention to those opinions and I will give those opinions little if any weight.

[23]      I have, however, paid close attention to the quality of Ms. Gilmour’s behaviour as observed and reported by those witnesses. Those reports of what Ms. Gilmour did and said and how she responded to the vagaries of life are germane to the issue of her testamentary capacity. Those reports are admissible into the record of the case because they are relevant to the conclusion that the court must make, viz, whether Ronald Barkwill has shown that Ms. Gilmour lacked testamentary capacity.

[24]      The second main complaint Ronald Barkwill made with respect to the evidence in support of the Will was that the affidavits contained hearsay evidence from Ms. Gilmour. With all due respect to Ronald Barkwill, this objection is not well founded. Statements by testators have traditionally been ruled admissible in estate matters. If nothing else, those statements go to the testator’s state of mind at the time the words were uttered. The testator’s state of mind is clearly an issue in this case because it goes to whether she had testamentary capacity and whether she was subject to undue influence.

III.  Issues on Appeal

[12]         Ronald Barkwill advances two principal grounds of appeal.  He argues that the chambers judge erred in finding that the matter was suitable for disposition by summary trial.  He says that the evidence was not of sufficient quality or quantity to decide the issues between the parties.  He says that he was not provided with access to documents that could assist his case, namely the solicitor’s file relating to the preparation of Ms. Gilmour’s will and her medical records.  He submits that these records were “crucial evidence”.

[13]         Ronald Barkwill’s second ground of appeal is that the chambers judge wrongfully relied on affidavit evidence that contained opinion, argument, and hearsay that was not admissible.

IV.  Analysis

[14]         The suitability of an action for disposition by way of summary trial depends on whether the evidence is sufficient for the chambers judge to find the facts necessary to give judgment, Inspiration Management Ltd. v. McDermid St. Lawrence Ltd. (1989), 36 B.C.L.R. (2d) 202 (C.A.) at 214-16.

[15]         There were two issues to be determined by the chambers judge: did the testatrix have the requisite testamentary capacity and was the testatrix subject to undue influence in the execution of her will.  The burden on the first issue was with the propounders of the will, though they are aided by a presumption of capacity.  The burden of proving undue influence lies with those attacking the will, Ronald Barkwill in this case.  See Vout v. Hay, [1995] 2 S.C.R. 876 at 887.

[16]         There was ample and uncontradicted evidence adduced by the executors (summarized above at para. 7) as to Ms. Gilmour’s testamentary capacity and the circumstances surrounding the execution of her will.  There was sufficient evidence to decide the issue of testamentary capacity and to support the chambers judge’s conclusion.

[17]         Ronald Barkwill failed to produce any evidence that Ms. Gilmour was subject to undue influence in the making or execution of her will.  It was his burden to establish that claim.  In the absence of any evidence to support his position, the chambers judge was able to find the facts necessary to give judgment, namely the lack of undue influence.  His finding was reasonably supported by the evidence and there is no basis on which this Court could interfere with it.

[18]         Ronald Barkwill says he was unable to dispute capacity or prove undue influence because he lacked the solicitor’s file and Ms. Gilmour’s medical records.  However, Ms. Gilmour’s solicitor and physician both swore affidavits regarding her capacity.  There is nothing in those affidavits to suggest that further documentary evidence would provide any basis for a claim of undue influence.

[19]         Furthermore, from the commencement of this action up to the summary trial, Ronald Barkwill took no steps to compel production of records from Ms. Gilmour’s solicitor or physician, nor did he seek to cross-examine any of the deponents in favour of the will.  The applicable law in such circumstances was succinctly stated by Madam Justice Newbury in Everest Canadian Properties Ltd. v. Mallmann, 2008 BCCA 275 at para. 34:

It is trite law that where an application for summary determination under Rule 18A is set down, the parties are obliged to take every reasonable step to put themselves in the best position possible.  As this court noted in Anglo Canadian Shipping Co. v. Pulp, Paper & Woodworkers of Canada, Local 8 (1988) 27 B.C.L.R. (2d) 378 at 382, a party cannot, by failing to take such steps, frustrate the benefits of the summary trial process. Where the application is brought by a plaintiff, the defendant may not simply insist on a full trial in hopes that with the benefit of viva voce evidence, ‘something might turn up’: see Hamilton v. Sutherland (1992) 68 B.C.L.R. (2d) 115, [1992] 5 W.W.R. 151 (B.C.C.A.) at paras. 66-7.  The same is true of a plaintiff where the defence has brought the R.18A motion.

[20]         Ronald Barkwill did not take the reasonable steps available to him to defend against proof of the will in solemn form.  He cannot then argue that the case was not ripe for disposition by way of summary trial.  He appears to have hoped that with his last minute request for production of certain documents, “something might turn up”.  Given Ronald Barkwill’s failure to take reasonable steps open to him, the chambers judge did not err in disposing of the matter by way of summary trial.

[21]         Ronald Barkwill’s remaining ground of appeal is that the chambers judge erred in considering affidavit evidence that was inadmissible.  He points to portions of the affidavits submitted by the executors that he says are opinion, argument, or hearsay.

[22]         The chambers judge’s assessment of the evidence is quoted above at para. 11.  To the extent that the affidavits contain opinion evidence, the chambers judge found them to be inadmissible.  He instead focused on the admissible portions that involved evidence of Ms. Gilmour’s behaviour as observed by the deponents.

[23]         As to the hearsay submission, it is important to recall that not all out of court statements amount to hearsay.  It is only those out of court statements that are relied on for the truth of their contents.  Statements of the testatrix can raise an inference of mental capacity without being relied on for their truth.  Such statements are not inadmissible as hearsay.  They are merely evidence that such a statement was made.

[24]         Even so, declarations of a testator’s state of mind or intentions have been admitted in more wide ranging circumstances than other forms of hearsay, including cases involving testamentary capacity and undue influence: see Bryant, Lederman and Fuerst, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 3d ed. (Markham, Ont.: LexisNexis, 2009) at 337-39.

[25]         There was ample admissible evidence to support the conclusion of the chambers judge.

V.  Conclusion

[26]         The chambers judge did not err in granting judgment after a summary trial.  For these reasons, the appeal was dismissed.

“The Honourable Chief Justice Finch”

I agree:

“The Honourable Madam Justice Neilson”

I agree:

“The Honourable Mr. Justice Groberman”