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