Category: Wills and Estates Page 3 of 5

By: Katherine MacKenzie

PDF Version: Inter-Provincial Recognition of Substitute Decision-Making Documents

Report Commented On: Alberta Law Reform Institute, Inter-Provincial Recognition of Substitute Decision-Making Documents, Report for Discussion 32

The Alberta Law Reform Institute (ALRI) is considering changes to the statutory rules governing recognition of substitute decision-making documents (enduring powers of attorney, personal directives etc.) that originate outside of Alberta. It recently published Inter-Provincial Recognition of Substitute Decision-Making Documents, Report for Discussion 32. The report reviews the issues with the existing law, considers the uniform provisions recently proposed by the Uniform Law Conference of Canada (ULCC) and makes preliminary recommendations for reform. Before it makes final recommendations to the Alberta government, ALRI is seeking feedback on the questions and proposals below.

The Impact of a Dower Act Life Estate on the Valuation and Distribution of Intestate Estates

By Jonnette Watson Hamilton

On July 18, 2017

In Property, Wills and Estates

By: Jonnette Watson Hamilton

PDF Version: The Impact of a Dower Act Life Estate on the Valuation and Distribution of Intestate Estates

Case Commented On: Estate of Johnson, Rick Allen (Re), 2017 ABQB 399 (CanLII)

The deceased, Rick Allen Johnson, died intestate–i.e., without a will–in February 2013. He was survived by a spouse and by two children of a previous marriage. The years of aggravation, frustration, hostilities and legal fees that is foretold by those two short sentences will be obvious to the many individuals who have found themselves in a similar situation. The particular issue in this case was how much of the deceased’s property his children inherited, if any, given the life estate in the deceased’s house granted to his surviving spouse by the Dower Act, RSA 2000, c D-15, and the preferential share of an intestate estate given to the surviving spouse by the Wills and Succession Act, SA 2010, c W-12.2. Specifically, the question was: Should the present value of the wife’s Dower Act life estate be deducted from the value of the deceased’s house for the purpose of distributing his estate between his surviving spouse and his children? Justice John W. Hopkins answered that question with a “no”, holding that the value of the deceased’s house for the purposes of the distribution of his estate under the Wills and Succession Act was the full value of the house, with no deduction for the life estate. I think his answer is wrong.

Capacity to Make and Revoke an Enduring Power of Attorney

By Jonnette Watson Hamilton

On May 12, 2017

In Family, Wills and Estates

By: Jonnette Watson Hamilton

PDF Version: Capacity to Make and Revoke an Enduring Power of Attorney

Case Commented On: Pirie v Pirie, 2017 ABQB 104 (CanLII)

The issue in this case was whether the applicant had the mental capacity in July 2016 to revoke his 2008 Enduring Power of Attorney and to create a new Enduring Power of Attorney. His 2008 Enduring Power of Attorney appointed his three children and his wife jointly as his attorneys and became effective if and when he became mentally incapable of understanding the nature and effect of that instrument. His 2016 Enduring Power of Attorney appointed his brother, and in the alternative, his long-term assistant, and in the further alternative, his sister-in-law, immediately upon its execution.

In some ways, this was an easy decision for Justice Robert Hall. If the applicant lacked the mental capacity to revoke the 2008 instrument, then three children who owed the applicant money and his now-estranged wife would be his attorneys. If the applicant had the mental capacity to revoke the 2008 instrument and create the 2016 instrument, then his businessman brother would be looking out for his financial interests, no doubt under the watchful eye of the three children and the now-estranged wife. Nevertheless, the case is noteworthy because it involved a challenge to the widely-accepted test for assessing mental capacity to create and revoke a power of attorney. That challenge argued for the inclusion of an evaluation of the rationality and reasonableness of the applicant’s reasons for making the changes. Although Justice Hall stated he did not accept the challenge to the existing test, he did assess the applicant’s reasons and found that the applicant had ample reason to make the changes. By doing so, he might have introduced some uncertainty into this area of the law.

Reaffirming the Importance of Clarity in Drafting a Will

By Admin

On August 24, 2015

In Wills and Estates

By: Geoff S. Costeloe

PDF Version: Reaffirming the Importance of Clarity in Drafting a Will

Case Commented On: MRM Estate (Re), 2015 ABQB 475

A recent Alberta Court of Queen’s Bench decision has demonstrated the lengths that the Court can go to determine the true intentions of a testator of a Will. The central issue in this case is determining whether or not the provided Last Will and Testament of the Testatrix was genuine despite several deficiencies. This case highlights one of the important changes from the previous Wills Act, RSA 2000, c W-12 which was in force until February 2012 when it was replaced by the Wills and Succession Act, SA 2010, c W-12.2 (the “Act”).

A Cautionary Tale for Step-Parents and Step-Children

By Jonnette Watson Hamilton

On May 5, 2015

In Family, Wills and Estates

By: Jonnette Watson Hamilton

PDF Version: A Cautionary Tale for Step-Parents and Step-Children

Case Commented On: Peters Estate (Re), 2015 ABQB 168 CanLII

People have many different ways of defining “family” and what being part of a family means to them. The idea that “a family is what you make it” or “families are who you love” is true enough when it comes to inheritance if you make a will. But the assumption that each of us can define family for ourselves is not true if we die without a will. If we die intestate (i.e., without a will), then the law will define our family for us — and the law’s categories are not flexible ones. They are not even twenty-first century categories. While the percentage of Canadian families who correspond to the nuclear-family model has declined, the laws of intestate succession still depend on that model. As a result, for those who die without a will, there is the possibility that the people they considered family will not inherit from them. The Peters Estate case is a cautionary tale about the need for wills or adoption in a modern world where “family” is a constantly changing concept.