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1946 Supreme(SC) 21
Privy Council At Canada
Du Parcq, Uthwatt, Simonds, Porter, Justice Lords Macmillan, JJ.
Harmes and another -Appellant
Versus
Hinkson -Resopndent
Privy Council Appeal No. 67 of 1943
Decided On : 13-05-1946
Redden, Blake, Charles Russell and Co., Heber Nethery , L. Mackenna Robinson , R.M. Balfour , E. Holroyd Pearce
A beneficiary drafting a will creates a suspicion requiring vigilant judicial scrutiny, but this presumption can be rebutted by evidence. Appellate courts should not disturb a trial judge's findings on witness credibility and testamentary capacity unless they are manifestly erroneous.
Headnote:(A) Wills and Probate - Onus Probandi and Suspicious Circumstances - The burden of proof lies on the party propounding a will to satisfy the court that the instrument is the last will of a free and capable testator (Para 16). Where the party who prepares the will takes a benefit under it, this circumstance excites suspicion, requiring the court to be vigilant and jealous in examining the evidence (Para 16). Such suspicion does not necessitate the rejection of the will if the evidence is sufficient to remove the doubt and satisfy the court that the document expresses the true will of the deceased (Para 22).
(B) Onus Probandi - The strict meaning of the burden of proof is that if no evidence is given by the party on whom the burden is cast, the issue must be found against them (Para 19). However, if the tribunal, after weighing the evidence, reaches a determinate conclusion, the onus is no longer a determining factor (Para 20).
(C) Undue Influence - The burden of proving undue influence lies on the party attacking the will (Para 26). Urging a person in a precarious condition to make a will is not necessarily undue influence, provided the pressure does not amount to coercion (Para 28).
(D) Appellate Review of Fact - An appellate court should generally respect the trial judge's findings on witness credibility, as the trial judge has the advantage of observing the witnesses firsthand (Para 24). A decision on facts should only be set aside if it is manifestly erroneous (Para 24).
Facts of the case:
A deceased person, suffering from a terminal illness inducing mental torpor, executed a will shortly before death. The will was drafted by a close friend and legal professional who was named as the residuary beneficiary. The validity of the will was challenged by the next of kin on grounds of lack of testamentary capacity, lack of knowledge and volition, and undue influence.
Findings of Court:
The trial court found that testamentary capacity, due execution, and the testator's knowledge and volition were established, and that there was no evidence of undue influence. The final court upheld the trial judge's findings, noting that the evidence of attending nurses supported the testator's alertness.
Issues: Whether the trial judge erred in law by failing to apply the rules regarding the burden of proof and suspicious circumstances, and whether the findings of fact regarding testamentary capacity and undue influence were manifestly erroneous.
Ratio Decidendi: The court held that while a beneficiary drafting a will creates a presumption of suspicion, this is a question of fact that can be rebutted by evidence. The trial judge's preference for the evidence of attending nurses over general medical evidence regarding the disease was a matter of credibility and fact, which an appellate court should not disturb unless manifestly wrong.
Result: Appeal dismissed.
Lord du Paroq.-
On 4th April 1941, one George Harmes died at the Grey Nun's Hospital in the city of Regina. Two days later, Mr. Hinkson, the respondent to this appeal to His Majesty in Council, brought to the manager of the Canada Permanent Trust Company at its office in Regina a document which purported to be the will of George Harmes. It was dated 3rd April 1941, and named the Trust Company as executor. On 2nd May 1941, a petition was presented by the Trust Company, as executor to the Surrogate Court of the Judicial District of Regina praying that the will might be proved in solemn form. Its validity had been challenged by the next of kin, one of whom, Paul Harmes, is the first named appellant. The others, who lived in Greece, were represented in the ensuing proceedings by the second appellant, the Custodian of Enemy Property. In due course an order was made directing a trial to determine the validity of the will, and in particular the following issues: (a) the testamentary capacity of the deceased at the time of its execution, (b) its due execution, (c) the knowledge and volition of the testator as to its contents, (d) the allegation that the execution of the will was procured by the undue influence of Hinkson.
[3] The learned Judge of the Surrogate Court, after a lengthy trial, affirmed the will, and decreed probate in solemn form. On appeal, the Court of Appeal for Saskatchewan (by a majority, the Chief Justice dissenting) reversed the decision of the Surrogate Court. There was a further appeal to the Supreme Court of Canada. This appeal was heard by five Judges, Rinfret, Kerwin, Hudson, Taschereau and Gillanders JJ. By a majority, Hudson J. alone dissenting, the appeal was allowed and the decree of the Surrogate Court was restored. Paul Harmes and the Custodian of Enemy Property sought and obtained special leave to appeal to His Majesty in Council, and their Lordships, with the valuable assistance of counsel, who put their opposing contentions before the Board with much force and commendable moderation, have given anxious consideration to a case which has caused so striking a difference of judicial opinion.
[3] The facts need only be stated in the barest outline to show that the circumstances in which the will was made called for strict investigation. George Harmes was a dying man when he signed the impugned document. He was suffering from a disease which, though it may not impair the intelligence, induces mental torpor and, in the end, coma. The total value of his estate was about $65,000. Under the will, the respondent Hinkson, by a devise and bequest of the residue, was to benefit to the extent of somewhat more than $50,000. And it was Mr. Hinkson, a gentleman who by profession is a barrister and solicitor, who drew the will, with no witness present until, after the body of the document was complete, two nurses were called in to witness its due execution. "From the outset," said the learned Judge of the Surrogate Court, "the document is charged with suspicion," and no one has questioned this opinion. In order that the matter in dispute may be properly understood, more of the facts must be stated, and something must be said of the two men who alone were concerned in the making of the will, George Harmes and Ernest Hinkson. George Harmes was born in Greece, of poor parents. When he was no more than fourteen years of age he left his native country for the United States of America, and there he lived until, about thirty years before his death, he left the United States for Canada, and settled in Regina. He seems to have had little education, but considerable aptitude for business. He had done well in trade, was the proprietor of a number of shops in which fruit and confectionery were sold, and had finally acquired a hotel which seems to have been favourably regarded, not least because of a popular beer parlour which was part of the establishment. Harmes is said to have been a genial and friendly man and many witnesses were c
