Category Archives: Wills and Estates

Exercising the Discretion to Allow Late Family Maintenance and Support Applications

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Case Commented On: Lamont Estate, 2020 ABQB 449 (CanLII)

A family member has a limited amount of time in which to apply to the Court of Queen’s Bench of Alberta when seeking a greater share of a deceased person’s estate than the share given to them in that person’s will or on intestacy. Under section 89(1) of the Wills and Succession Act, SA 2010, c W-12.2 (WSA), the family member must apply within six months after the grant of probate or administration. Nevertheless, a court may allow a late application for a greater share of any part of the estate not yet distributed: section 89(2). This decision of Justice Nicholas Devlin appears to be the first time that a court has looked at what factors it should consider when exercising its discretion to allow or disallow a late application.

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How to Interpret a Will, or “Motorcycles make a House a Home”

By: Jonnette Watson Hamilton

PDF Version: How to Interpret a Will, or “Motorcycles make a House a Home”

Case Commented On: Hicklin Estate v Hicklin, 2019 ABCA 136 (CanLII)

Hicklin Estate is a judgment interpreting one word in a will – the word “home.” It is also a judgment with 138 paragraphs and 90 footnotes saying, in the end, that the chambers judge committed no palpable or overriding error in using extrinsic evidence to broadly interpret “home” to include the contents of the house and the garage. Not only was the sole issue a relatively narrow one, but the applicable law appears to be uncontroversial. It does not seem to be a case that calls for any more elaboration of the law than that given it by the lower courtin what the Court of Appeal called a “careful review” of the jurisprudence (at para 40). Nevertheless, lawyers seem to love this lengthy Court of Appeal judgment, applauding its “interesting hypotheticals (which heavily feature vintage Rolls-Royce automobiles)” and calling it a “delight to read, for it is an erudite and learned disquisition” and “a model of stylistic clarity.” However, the stylistic clarity seems to have distracted readers’ attention from problems with the substance of the judgment. Continue reading →

Inter-Provincial Recognition of Substitute Decision-Making Documents: Personal Directives

By: Katherine MacKenzie

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Report Commented On: Alberta Law Reform Institute, Inter-Provincial Recognition of Substitute Decision-Making Documents: Personal Directives, Final Report 113

A little over a year ago, I wrote a post about the Alberta Law Reform Institute’s (ALRI) project on the inter-provincial recognition of substitute decision-making documents. This was an implementation project, which means that it looked at whether sample, uniform legislation already researched and drafted by the Uniform Law Conference of Canada (ULCC) was suitable for enactment in Alberta.

At the time of that post, ALRI recommended that the ULCC’s uniform legislation should be implemented in Alberta, with some minor amendments. We also sought feedback on our preliminary recommendations for reform. Unfortunately, the consultation results did not support our preliminary recommendations and, as a result, ALRI is not in a position to make any final proposals. Instead, Final Report 113 summarizes the project’s consultation process and results, and highlights any policy alternatives or additional issues that may deserve further exploration and analysis.

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Avoiding Probate Does Not Eliminate Problems

By: Arlene Blake

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Case Commented On: Dobransky v. Roteliuk, 2018 ABQB 660

Putting property in joint names is an oft used method of estate planning to avoid probate. While it is unclear if Dobranksy is such a case, it can serve as a cautionary tale for those contemplating using joint tenancy as a method of avoiding probate.

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Cowper-Smith and the Law of Proprietary Estoppel: Implications for the Oil and Gas Lease?

By: Nigel Bankes

PDF Version: Cowper-Smith and the Law of Proprietary Estoppel: Implications for the Oil and Gas Lease?

Case Commented On: Cowper-Smith v Morgan, 2017 SCC 61 (CanLII)

The Supreme Court of Canada handed down its decision in Cowper-Smith v Morgan in December 2017. The decision is an important decision on proprietary estoppel. While it arises in the context of a family dispute it deserves to be read by commercial lawyers including oil and gas lawyers. It is one of the curiosities of the Canadian law of estoppel that some of our leading cases have come out of fact patterns involving the “unless” form of the oil and gas lease from the 1960s and 1970s from Alberta and Saskatchewan. These cases include Canadian Superior Oil Ltd. v Paddon-Hughes Development Co., [1970] S.C.R. 932, 1970 CanLII 3 (SCC) and Sohio Petroleum Co. v Weyburn Security Co., [1971] S.C.R. 81, 1970 CanLII 137 (SCC). These cases continue to be influential in oil and gas lease matters and beyond. The typical fact pattern involves a missed or late payment during the primary term or a missed or late shut-in payment during the secondary term which automatically terminates the lease unbeknownst to either party. The parties continue to act as if the lease is in force and in some cases the lessee expends considerable monies on the leased lands including drilling a new well. But in the end, all is for naught. The lease is dead and to this point estoppel arguments aimed at reviving the lease have largely failed; in some cases on the basis that estoppel cannot be used as a sword (to create a new lease), and in other cases, and most commonly, on the basis that the lessee never acted to its detriment on the basis of a representation made by the lessor that the lease was still in effect; typically there was no such representation, the lessee was simply proceeding on the basis of its own understanding of the legal position. Continue reading →