Goldsworthy v. Thompson, [1975] 2 SCR 271

Supreme Court of Canada

Goldsworthy v. Thompson, [1975] 2 S.C.R. 271

Date: 1974-06-28

Zelma May Goldsworthy Appellant;

and

William Maurice Thompson Respondent.

1974: June 12; 1974: June 28.

Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Beetz and de Grandpré JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR MANITOBA

Wills—Undue influence—Burden of proof—Son preparing will for aged father—Benefits for testator’s daughter under previous will and codicils thereto substantially reduced—Undue influence on part of son established.

The effect of a will executed by the testator on April 9, 1969, was to exclude the appellant from anything but a share of the residue whereas under an earlier will of the testator of April 14, 1964, and codicils thereto of June 17, 1964, and April 14, 1968, she was to have that share, amounting to some $5,000 and as well a benefit worth $20,000 in cash and shares in a family company.

The respondent, brother of the appellant, not only proposed the testamentary changes that his ailing father made but prepared the will for execution, albeit the will of 1964 had been prepared by a solicitor who acted in such matters for the testator. Moreover, the changes were initiated by the respondent after his sister had departed following a visit of almost six months with the father who was then in a nursing home. At no time during the sister’s long visit did the respondent discuss with her the changes that were ultimately made in the father’s will, and made a year after the codicil of April 14, 1968, had confirmed the intended benefits for the sister.

A majority of the Court of Appeal reversed the trial judge and admitted the will of April 9, 1969, to probate. The sister appealed to this Court.

Held: The appeal should be allowed.

The trial judge’s conclusions of fact were supported by the evidence, and in finding that the burden of proving undue influence had been discharged he committed no reversible error. The respondent’s allegation that the impugned will simply carried out an understanding under an agreement made, at the testa-

[Page 272]

tor’s insistence, between the appellant and the respondent was rebutted by the codicil of April 14, 1968, in which the respondent had a hand and which reaffirmed the $20,000 benefit to the appellant.

APPEAL from a judgment of the Court of Appeal for Manitoba, reversing a judgment of Coleman Surr. Ct. J., refusing probate of a will. Appeal allowed with costs.

C.R. Huband, for the appellant.

W.C. Newman, Q.C., for the respondent.

The judgment of the Court was delivered by

THE CHIEF JUSTICE—This appeal involves the single question whether a will, dated and executed on April 9, 1969, should be denied probate because of undue influence exercised by the respondent, a son of the aged testator. The contest is between him and his sister, the appellant in this Court, who succeeded before Surrogate Court Judge Coleman in establishing undue influence on the part of the respondent. Under an earlier will of April 14, 1964, and codicils thereto of June 17, 1964, and April 14, 1968, benefits which were substantial, relative to a small estate consisting in the main of shares in a family company, cash and insurance, were provided for the appellant. The effect of the will of April 9, 1969, was to exclude the appellant from anything but a share of the residue whereas under the earlier will and codicils she was to have that share, amounting to some $5,000 and as well a benefit worth $20,000 in cash and company shares.

The Manitoba Court of Appeal, with Dickson J.A., as he then was, dissenting, reversed the trial judge and admitted the impugned will to probate. In so doing the learned Chief Justice of Manitoba, Freedman C.J.M., with whom Monnin J.A. agreed, viewed the evidence from a different perspective than did the trial judge and Dickson J.A. He was of the opinion that the findings of fact made by the trial judge were findings from which inferences had to be drawn, and in his opinion the trial judge drew the wrong

[Page 273]

inferences. I do not see the case in this light. What was of central importance was the trial judge’s advantage in seeing and hearing the witnesses, and especially the respondent who not only proposed the testamentary changes that his ailing father made but prepared the will for execution, albeit the will of 1964 had been prepared by a solicitor who acted in such matters for the testator. Moreover, the changes were initiated by the respondent after his sister had departed following a visit of almost six months with the father who was then in a nursing home. At no time during the sister’s long visit did the respondent discuss with her the changes that were ultimately made in the father’s will, and made a year after the codicil of April 14, 1968, had confirmed the intended benefits for the sister.

In my opinion, the trial judge’s conclusions of fact were supported by the evidence, and in finding that the burden of proving undue influence had been discharged he committed no reversible error. The main point urged upon this Court by counsel for the respondent was that an agreement made, at the testator’s insistence, on October 6, 1964, between the appellant and the respondent, for the forced purchase by the latter after the testator’s death of 23 family company shares which had been owned for many years by the appellant and as well an additional 12 shares which would come to her under the then will, was premised on an understanding that all the money for the purchase would come to the respondent out of the testator’s estate and that the will of April 9, 1969, simply carried out this understanding. It is enough to say that this view of the matter is inconsistent with the codicil of April 14, 1968, in which the respondent had a hand and which, for all practical purposes, reaffirmed the $20,000 benefit that was to go to the appellant, without affecting any obligation she had under the agreement to sell her shares to her brother and her right to be paid for them by him.

[Page 274]

The other matters of fact upon which the conclusion of undue influence was based were fully canvassed in the reasons of the trial judge, and since I take the same view of them as did Dickson J.A. I find it unnecessary to examine them afresh.

I would, accordingly, allow the appeal, set aside the judgment of the Manitoba Court of Appeal and restore the judgment of the Surrogate Court judge. The appellant should have her costs in this Court and in the Manitoba Court of Appeal.

Appeal allowed with costs.

Solicitors for the appellant: Richardson & Co., Winnipeg.

Solicitors for the respondent: Newman, MacLean, Winnipeg.