PDF version: What does the term “oil well rights” mean when used in a will? 

Case considered: Wernicke v Quirk, 2011 SKCA 95

The moral of this story might well be “don’t mess with terms you don’t understand”; and if you want to make a specific devise of surface rentals from gas wells on your property you might wish to do so explicitly and not use a term like “oil well rights”.

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PDF version: It’s Difficult to Disinherit Some Adult Children 

Case considered: Soule v. Johansen Estate, 2011 ABQB 403

Alberta Justice has spent the past few years reviewing provincial succession laws and proposing reforms to consolidate and update the relevant provincial statutes. The result of the Alberta Succession Law Reform project was the passage of the new Wills and Succession Act, SA 2010, c W12.2 by the Alberta legislature in the fall of 2010 (Bill 21). However, because the changes are extensive, the new Wills and Succession Act will not come into force until it is proclaimed and proclamation is not expected until early 2012. It is interesting to consider whether or not the result in Soule v. Johansen Estate would have been any different under new law. In her will, Elsie Carrolle Johansen left all of her $116,000 estate to the Calgary Humane Society. She chose to disinherit her only son, Kim Soule, a 51 year old man suffering from hepatitis C, because she did not want her estate to be spent on drugs and alcohol. He asked the court to re-write his mother’s will under the Dependants Relief Act, RSA 2000, c D-10.5, because he is unable to earn a livelihood. Although Mr. Soule did not appear to be a sympathetic supplicant, he nevertheless prevailed. Justice Sheilah Martin rewrote his mother’s will to give all but $10,000 of his mother’s estate to Mr. Soule. Her main reason for doing so appears to be the predominantly pragmatic one of relieving taxpayers of the burden of Mr. Soule’s support.

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Case considered: Felske Estate v. Donszelmann, 2009 ABCA 209

PDF version: Court of Appeal Agrees that Severing a Joint Tenancy Requires More than Intention

In a previous post, I concluded that the Court of Queen’s Bench correctly dismissed an application brought by a neighbor of Mrs. Felske for a declaration that he was entitled to half of her farm upon her death. The Court of Appeal has agreed and has dismissed the neighbor’s appeal.

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Case considered: Petrowski v. Petrowski Estate, 2009 ABQB 196

PDF version: Do testators have moral as well as legal obligations to their dependants? Not in Alberta

Alberta’s Dependants Relief Act, RSA 2000, c. D-10.5 allows adult children who are unable to earn a livelihood by reason of physical or mental disability to challenge their parent’s will if that will does not made “adequate” provision for their “proper maintenance and support.” There is similar legislation in other provinces and the leading precedent on what factors a judge should take into account in exercising their discretion to vary a will is a Supreme Court of Canada decision on appeal from British Columbia: Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807. The Supreme Court held in Tataryn that a judge was not limited to a needs-based analysis, but should also consider the deceased’s moral obligations. However, the British Columbia legislation the Supreme Court interpreted in Tataryn differs from Alberta’s in two important respects and the Alberta Court of Appeal has yet to consider the relevance of these differences. It is therefore still an open question in Alberta as to whether or not Tataryn applies to the interpretation of this province’s statute and whether moral obligations can or should be taken into consideration. The Petrowski v. Petrowski Estate judgment is the latest Queen’s Bench decision to grapple with this issue. It holds that, in Alberta, only the obligations imposed in law by the legislature are moral obligations; law is co-extensive with morality in this context. The result of this decision is that a property owner’s freedom to dispose of his property is enhanced.

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Cases Considered: Nazarewycz v. Dool, 2009 ABCA 70.

PDF Version:  No one wins when relatives fight over an estate, lawyers behave with incivility, and judges are asked but refuse to recuse themselves

There is little in this case that shows estate work in a good light. It involves relatives accused of a multitude of sins in their fight over a deceased aunt’s property, lawyers accused of being uncivil, and judges accused of bias. All were vindicated in one way or another by the judgment of the Court of Appeal, but no one won. There was too much strife among relatives; too much manoeuvring for a piece of someone else’s pie. And when counsel and the presiding judge became embroiled in the dispute and appeared to take it personally, the legal system was also diminished.

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Cases Considered: Hilstad Estate, 2008 ABQB 570

PDF Version: A Windfall Inheritance from a Distant Relative: Daydreams Only Come True for Some

Who hasn’t daydreamed about inheriting a fortune from some distant and unheard of relative? I suppose one of the reasons it is a fairly common reverie is because, occasionally, it really does happen. This case is about one of those occasions. In September 2008, the maternal second cousins of Mary Hilstad who were alive in her death in 1963 inherited over $900,000 in royalty payments from mines and minerals. Those second cousins are probably deceased themselves by now, but some unsuspecting child or grandchild of theirs is probably about to become more comfortable financially. Their daydreams will come true thanks to the original owner of the mines and minerals, Olaf Christian Hilstad, who died in 1915 in the Judicial District of Red Deer, Alberta, without a will, spouse or children.

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Cases Considered: Re Boychuk (Estate), 2008 ABQB 38

PDF Version: Restraining Disinheritance

The idea that a deceased person’s estate should be available to those who were dependent upon the deceased during his or her lifetime is an idea recognized by many legal systems. Sometimes it finds expression in the forced distribution of shares of a deceased’s estate; in other cases, a maintenance principle is adopted. Alberta originally adopted the forced share approach. The Married Women’s Relief Act, enacted in 1910, authorized a court to grant a widow who had been left less in her husband’s will than she would have been entitled to as her intestate share “such allowance … as may be just and equitable in the circumstances.” The courts interpreted that provision to me an the widow was entitled to an amount equivalent to her intestate share: McBratney v. McBratney (1919), 50 D.L.R. 132. However, within a generation, Alberta shifted to the more flexible maintenance approach and extended protection to children. In Alberta’s current statute, the Dependants Relief Act, the deceased’s dependants are entitled to adequate maintenance from his or her estate. (more…)