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Will power: the case of the municipal heir.

Under the wide and starry sky

Dig the grave and let me lie:

Glad did I live and gladly die,

And I lay me down with a will.

Death may have inspired at least as much litigation as poetry, and the protracted nature of some of these lawsuits gives a whole new meaning to the term afterlife. These suits rarely involve government entities as beneficiaries, perhaps because most of us reckon that government squeezes enough out of us while we're alive. One exception was the litigation over the last wills and testaments of Hazel Strang McCardell, and the City of Edmonton Library Board as a potential beneficiary.

Mrs. McCardell was born in 1891. She taught music in Edmonton, and may have been the first woman pilot to fly the Rockies. Having no children, in 1971, Mrs. McCardell and her husband made wills leaving their property to each other, and then to the library board for the establishment of a Strang-McCardell Memorial Collection of books and recordings, and naming their trust company as executor. The only other bequests were a gift of a maple leaf pin, and $1,000 to Mrs. McCardell's sister.

This remained the state of affairs until March 1981, when Mr. McCardell was hospitalized and died a month later. Mrs. McCardell was moved into a nursing home on the recommendation of her physician, who noted she suffered from senile dementia, organic brain syndrome, and poor memory. Between April 23 and June 2, 1981, Mrs. McCardell signed three different wills, which alternated between naming her grandnephew and -niece Mr. and Mrs. C., as her beneficiaries and executors, and reinstating the trust company as executor and the library board as the ultimate beneficiary. In October, she signed a transfer of her home into her name jointly with that of her grandnephew and -niece, and in November, changed her life insurance policy to designate them her beneficiaries.

The nursing home's notes during the period described Mrs. McCardell as very confused and wandering at times, with episodes of abnormal behaviour (in one, a nurse found Mrs. McCardell on her bed with a mouth full of toilet paper, stating "I'm dead", and a little over a week after making a will in his favour, the notes indicate Mrs. McCardell did not recognize her grandnephew). Her physician saw her the day before the last will was made, and although she told him she wanted to make a will, she didn't know her age, the year, or the time of year, and thought her father, who died in 1939, had just died. By December 1981, another physician certified "this 90 year old lady is completely disoriented...and is almost constantly confused. This condition is permanent.. and since she is not capable of understanding the effects of her actions and decisions," Mrs. McCardell was in need of a trustee as a dependent adult.

As a result, the transactions involving Mrs. McCardell came under the scrutiny of the Public Trustee's Office, and ultimately before the court, for a determination as to their validity. The proceedings, begun in 1982, included a trial, an appeal to the Alberta Court of Appeal, and a new trial ordered by the appeal court. In late 1989, Mr. Justice McDonald held the will was invalid and gave a final decision on costs in 1990.

In coming to a determination, Mr. Justice McDonald considered the test for testamentary capacity, as defined in the 1870 case of Banks v. Goodfellow. While the testator need not be of unblemished mental health, he or she must understand the nature of making a will and its effects, the extent of the property being disposed of, and be aware of and appreciate the claims to which he or she ought to give effect.

In applying the test, the judge placed great weight on the medical evidence respecting the progression and symptoms of senile dementia. He also accepted evidence of Mrs. McCardell's mental condition given by other witnesses: Mrs. McCardell's housekeeper, other relatives, lawyers who saw her in May 1981, and a receptionist (and witness) to the April 23 will. (Oddly enough, in a moment of prescience, the receptionist, who witnessed hundreds of wills, testified she'd felt at the time that if anything was going to come to court, "this would be the one"). Based on the evidence and the medical testimony, the judge ruled that Mrs. McCardell did not have the necessary testamentary capacity to execute the wills in 1981, and that after March 22, 1981, she was of unsound mind, so as to invalidate any documents signed by her after that date. The will to be admitted to probate was the will made in 1971, making the library board the beneficiary.

Mrs. McCardell died in 1986, likely unaware of the years of litigation that had been carried on in her name.
COPYRIGHT 1996 Legal Resource Centre of Alberta Ltd.
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 1996 Gale, Cengage Learning. All rights reserved.

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Author:Sophia M. Stadnyk
Date:Oct 1, 1996
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