Date: 20070216
Docket: T-945-06
Citation: 2007 FC 178
Ottawa, Ontario, February 16,
2007
PRESENT: The Honourable Madam Justice Hansen
BETWEEN:
WALTER
SAPPIER
Applicant
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:
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46. (1)
The Minister may declare the will of an Indian to be void in whole or in part
if he is satisfied that:
(a) the will was executed
under duress or undue influence;
(b) the testator at the time of
execution of the will lacked testamentary capacity;
(c) the terms of the will would
impose hardship on persons for whom the testator had a responsibility to
provide;
(d) the will purports to
dispose of land in a reserve in a manner contrary to the interest of the band
or contrary to this Act;
(e) the terms of the will are
so vague, uncertain or capricious that proper administration and equitable
distribution of the estate of the deceased would be difficult or impossible
to carry out in accordance with this Act; or
(f) the terms of the will are
against the public interest.
(2) Where a will of an Indian is declared
by the Minister or by a court to be wholly void, the person executing the
will shall be deemed to have died intestate, and where the will is so
declared to be void in part only, any bequest or devise affected thereby,
unless a contrary intention appears in the will, shall be deemed to have
lapsed.
47. A decision of the Minister made in the
exercise of the jurisdiction or authority conferred on him by section 42, 43
or 46 may, within two months from the date thereof, be appealed by any person
affected thereby to the Federal Court, if the amount in controversy in the
appeal exceeds five hundred dollars or if the Minister consents to an appeal.
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46. (1)
Le ministre peut déclarer nul, en totalité ou en partie, le testament d’un
Indien, s’il est convaincu de l’existence de l’une des circonstances
suivantes :
a) le
testament a été établi sous l’effet de la contrainte ou d’une influence
indue;
b) au
moment où il a fait ce testament, le testateur n’était pas habile à tester;
c) les
clauses du testament seraient la cause de privations pour des personnes
auxquelles le testateur était tenu de pourvoir;
d) le
testament vise à disposer d’un terrain, situé dans une réserve, d’une façon
contraire aux intérêts de la bande ou aux dispositions de la présente loi;
e) les
clauses du testament sont si vagues, si incertaines ou si capricieuses que la
bonne administration et la distribution équitable des biens de la personne
décédée seraient difficiles ou impossibles à effectuer suivant la présente
loi;
f) les
clauses du testament sont contraires à l’intérêt public.
(2) Lorsque le testament d’un Indien est déclaré
entièrement nul par le ministre ou par un tribunal, la personne qui a fait ce
testament est censée être morte intestat, et, lorsque le testament est ainsi
déclaré nul en partie seulement, sauf indication d’une intention contraire y
énoncée, tout legs de biens meubles ou immeubles visé de la sorte est réputé
caduc.
47. Une
décision rendue par le ministre dans l’exercice de la compétence que lui
confère l’article 42, 43 ou 46 peut être portée en appel devant la Cour
fédérale dans les deux mois de cette décision, par toute personne y
intéressée, si la somme en litige dans l’appel dépasse cinq cents dollars ou
si le ministre y consent.
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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.
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