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This is one of those estates cases where the facts cry out for a particular result. It is also one of those cases where the law provided the right result. This was a fight between the Public Trustee of Alberta, on behalf of an 80 year old mentally incompetent widower who, for 42 years, owned a farm with his wife as joint tenants, and a neighbour who, while the wife lay dying in hospital, had his lawyer prepare a will and transfer of land giving him the wife’s interest in the farm. There is no question that Mr. Justice D.A. Sirrs decided correctly when he chose the Public Trustee over the neighbour on these facts.

A Fight Over Estate Jurisdiction

By Nicholas Rafferty

On February 11, 2008

In Conflict of Laws

Cases Considered: Re Foote (Estate Of), 2007 ABQB 654

Keywords: conflict of laws, jurisdiction, estates, poison pill clause, family relief

PDF Version: A Fight Over Estate Jurisdiction

Introduction

Conflicts scholars tend to be fascinated with choice of law problems and the methods for their resolution. Most theoretical work has been directed towards the choice of law question and the basis on which foreign law is applied by local courts. In his classic Conflict of Laws (2nd ed. 1954), Falconbridge spoke barely a word on issues of jurisdiction. Indeed, he stated that the “scope of the subject of the conflict of laws . . . does not cover the topic of jurisdiction of courts and the related topic of the enforcement of foreign judgments” (p. 6).

Anthropomorphic Justice: The Case of the Cute, Yet Menacing Dog

By Shaun Fluker

On January 20, 2008

In Civil Procedure

Cases Considered: R. v. Hardy, 2007 ABQB 747

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Erin is a 10 year-old who loves dogs. One morning while in the Kensington district of inner-city Calgary with her parents, Erin’s affection led to an unfortunate encounter with Paul Hardy’s young German pointer leashed to a sidewalk post. As she attempted to pet the dog, it unexpectedly lunged upwards and bit her mouth. She required plastic surgery to treat the severe injuries inflicted upon her lips.

Leave to Appeal Arbitration Awards and the Addition of the Public Interest

By Jonnette Watson Hamilton

On January 12, 2008

In Arbitration

Cases Considered: Lion’s Gate Homes Ltd. v. Shand, 2008 ABQB 15

PDF Version: Leave to Appeal Arbitration Awards and the Addition of the Public Interest

This brief decision by Mr. Justice D.K. Miller provides an opportunity to look at how the courts in Alberta have interpreted subsection 44(2) of the Arbitration Act, R.S.A. 2000, c. A-43. This is the provision that usually governs the ability of the parties to appeal an arbitrator’s award. Although subsection 44(2) does not, on the face of it, require that there be any public interest in the parties’ dispute or the award resolving that dispute or an appeal from the award, judges of the Court of Queen’s Bench of Alberta have fairly consistently read in that extra element.

Restraining Disinheritance

By Jonnette Watson Hamilton

On January 12, 2008

In Wills and Estates

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.