Executive Summary: Key Legal and Evidentiary Issues

• Dispute centered on the validity and enforceability of an amended joint partner trust.

• Determination of whether the trust was inter vivos or testamentary in nature.

• Assessment of the mental capacity of an elderly settlor with Alzheimer’s disease at the time of the trust amendment.

• Consideration of alleged undue influence and suspicious circumstances surrounding the trust amendment.

• Evaluation of the admissibility and reliability of hearsay, medical records, and unsworn estate documents.

• Application of summary trial procedure to resolve the dispute efficiently.

Facts and outcome of the case

Background and parties

This case involved a family dispute over the Denis and Yvonne Blakely 2015 Joint Partner Trust. The plaintiffs, Cindi Gail Wicklund, Evan Derek Wicklund, and Kirsten Cara Wicklund, were the daughter and grandchildren of Yvonne, one of the settlors. The defendants were Kevin Blakely and Victoria McCarvill, acting both as trustees and in their personal capacities, along with the Trust itself. The plaintiffs sought to set aside an amendment to the trust, alleging it was invalid, void, and unenforceable.

The trust and the disputed amendment

Denis and Yvonne Blakely established the trust in July 2015, with the assistance of a trusts and estates lawyer. The trust assets included real property and investment accounts, and it provided for the division of assets between the families of both settlors and a charitable share. The trust allowed for amendments by both settlors acting jointly.

In October 2015, less than three months after the trust was settled, Denis and Yvonne amended the trust. The amendment drastically reduced the plaintiffs’ share of Yvonne’s portion from 90% to 30% and increased the charitable share from 10% to 70%. The plaintiffs claimed these changes were drastic and illogical, and that Yvonne lacked the mental capacity to make such changes due to her Alzheimer’s disease. They also alleged she was unduly influenced by Denis.

Legal and evidentiary issues

The court first addressed preliminary evidentiary matters, including the admissibility of hearsay, medical records, and unsworn estate documents. The court admitted these materials, finding they met the necessary legal standards for reliability and relevance.

A central legal issue was whether the trust was inter vivos (taking effect during the settlors’ lifetimes) or testamentary (taking effect upon death). The plaintiffs argued the amendment was testamentary and thus invalid for failing to meet statutory formalities. The court found the trust was inter vivos, as it had immediate effect and provided significant benefits to Yvonne during her lifetime.

The court also examined whether Yvonne had the mental capacity to execute the amendment. After reviewing medical records, expert reports, and lay evidence, the court concluded there was no material decline in Yvonne’s cognitive status at the relevant time and that she had the requisite capacity to understand and approve the trust amendment.

Allegations of undue influence and suspicious circumstances

The plaintiffs alleged that Denis exerted undue influence over Yvonne and that the circumstances surrounding the amendment were suspicious. The court considered the nature of Denis and Yvonne’s relationship, the process of amending the trust, and the involvement of Kevin Blakely, who drafted the amendment. The court found no evidence of domination or coercion, concluding that Yvonne acted of her own volition and that Denis’s conduct was protective rather than controlling.

Outcome

The court dismissed the plaintiffs’ claims, upholding the validity and enforceability of the trust amendment. The court found that Yvonne had the mental capacity to amend the trust, was not unduly influenced, and that no suspicious circumstances displaced the presumption of capacity. No damages were awarded, and the parties were given leave to file written submissions on costs if they could not agree. The defendants, as trustees and in their personal capacities, prevailed in the action.