Executive Summary: Key Legal and Evidentiary Issues

• Dispute concerned the validity of a notice to sever a joint tenancy signed by Vivian Alice Henuset.

• Issues raised included Vivian’s capacity and her knowledge and approval of the notice’s contents.

• Allegations of undue influence by Michelle Gervin, Vivian’s daughter, who assisted Vivian in retaining the lawyer and preparing the notice.

• The application judge applied legal principles relating to testamentary capacity, knowledge and approval, and undue influence.

• On appeal, the main argument was whether the application judge made palpable and overriding errors in assessing the evidence, particularly the lawyer’s testimony.

• The appeal was dismissed as the evidence supported the validity of the notice and did not establish undue influence.

Background and facts of the case

The appellant, Gregory John Henuset, disputed the validity of a notice of intention to sever a joint tenancy signed by his mother, Vivian Alice Henuset. Before 2016, Vivian had made two wills leaving a portion of her farmland to Gregory and providing him with an option to purchase the remaining portion from her estate. The residue of Vivian’s estate was to be divided among her other five children in equal shares. In 2016, Vivian conveyed the farmland to herself and Gregory as joint tenants with a right of survivorship. In 2017, she changed her will to reflect that the farmland would not form part of her estate if Gregory survived her, with the residue again divided among her other five children in equal shares.

By 2023, Vivian regretted this arrangement, feeling it was unfair for Gregory to receive all of the farmland, which was more valuable than her other assets, while her other five children shared the remaining assets. With the help of her daughter, Michelle Gervin, who lived near her and regularly assisted her, Vivian retained a lawyer to prepare and execute the notice to sever the joint tenancy and a new will. As a result, Gregory would receive half of the farmland as a tenant in common and would have the option to purchase the other half from Vivian’s estate. The residue of Vivian’s estate was to be divided among her other five children in equal shares.

Upon being served with the notice, Gregory retained counsel and filed a notice of application challenging the validity of the notice on the grounds that Vivian lacked capacity and/or that the notice was procured by undue influence exercised by Michelle. Affidavits were filed by Gregory, Vivian, Michelle, the lawyer, and a legal assistant. Michelle, Gregory, and the lawyer were cross-examined on their affidavits. The application was heard on November 4, 2024, and judgment was delivered on December 13, 2024. Vivian died on November 29, 2024. The proceedings continued with Vivian’s executors, Stephen Brent Henuset and Michelle, as respondents.

Application judge’s findings and legal principles applied

With the agreement of the parties, the application judge applied the law relating to testamentary capacity, knowledge and approval, and undue influence, referencing authorities including Vout v Hay, Drewniak v Smith, and Banks v Goodfellow. The application judge found that Gregory had succeeded in identifying suspicious circumstances, such as Vivian’s age (ninety), her vision and memory impairments, Michelle’s provision of day-to-day care, the lawyer being new to Vivian and brought by Michelle, indications of possible confusion and agitation, inaccuracies in Vivian’s narrative about the land transfer, and Michelle’s numerous discussions with Vivian about the land transfer.

However, the application judge found that Vivian had led sufficient evidence to prove capacity and knowledge and approval of the notice on a balance of probabilities. The judge relied on the evidence of Vivian and the lawyer, noting that the lawyer took steps to assess Vivian’s capacity throughout the retainer, met with Vivian alone in person twice, spoke with her on the phone three times, and read the notice to her line by line to ensure understanding. The application judge also found that Gregory failed to establish on a balance of probabilities that the notice was the product of undue influence by Michelle.

Appeal and appellate court’s analysis

Gregory appealed, arguing that the application judge erred by giving inconsistent weight to the evidence of the lawyer and should have been more critical in assessing the reliability of the lawyer’s evidence regarding Vivian’s capacity and knowledge and approval of the notice. Gregory also asserted that, if the application judge had not erred in finding that Vivian had sufficient knowledge and capacity, a different conclusion would have been reached regarding undue influence.

The Manitoba Court of Appeal found none of these arguments persuasive, stating that they amounted to a request to re-weigh the evidence, which the Court would not do in the absence of palpable and overriding error. The appellate court found that the application judge carefully reviewed all the evidence, including Vivian’s unchallenged affidavit, and was entitled to make the findings that he did, which were supported by the record. The Court also noted that the question of whether the notice was truly testamentary in nature was not raised as an issue and was not relevant to the appeal. The application judge gave Gregory the benefit of considering both probate and equitable undue influence, but Gregory was unable to prove undue influence on a balance of probabilities.

Ruling and outcome

The Manitoba Court of Appeal dismissed the appeal with costs. The successful parties were the executors of Vivian’s estate, Michelle Renee Gervin and Stephen Brent Henuset. The decision does not specify the exact amount ordered or awarded as costs.