Category Archives: Wills and Estates

The State of Estate Administration in Alberta

PDF Version: The State of Estate Administration in Alberta

Report commented on: Alberta Law Reform Institute, Final Report on Estate Administration

In October 2013, the Alberta Law Reform Institute (ALRI) released its Final Report on Estate Administration. It is anticipated that new estate administration legislation will be introduced in the Legislature this fall.

The current Administration of Estates Act, RSA 2000, c A-2 remains relatively unchanged since it was first introduced in 1969. A person trying to administer an estate, however, would find little guidance in the current Act. This is partly due to the fact that the statute, in essence, is a list of exceptions and accretions to the common law without working them into a coherent whole.

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The Pleasures and Perils of Holograph Wills

PDF version: The Pleasures and Perils of Holograph Wills

Case Considered: Lubberts Estate, 2012 ABQB 506

 This Court of Queen’s Bench decision interprets a provision in a holograph will.  The case is an example of the not-uncommon human tendency to try to use property to control family members’ behaviour, both before death by way of gift and after death by way of inheritance.  Like many such efforts, this deceased’s handwritten codicils to her lawyer-drawn will and her subsequent holograph will did not do what she wanted them to do.  Instead of the deceased determining who would inherit her property and on what conditions, her family members inherited under generic, unconditional intestate laws.  It is ironic; the more control the deceased tried to exert over what happened to her property on her death, the less say she had in the disposition of her property in the end.

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

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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It’s Difficult to Disinherit Some Adult Children

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

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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