Saskatchewan Estate Litigation Update: Nelson v Wagner, 2021 SKQB

A very useful lesson comes in the recent Saskatchewan decision in Nelson v Wagner. The decision offers guidance on when a court will override claims of solicitor-client privilege, and disclose the file of the solicitor who dealt with a testator.

In Nelson, the applicants had commenced a proceeding in which they allege undue influence on the part of John James Nelson in respect of both a will and a transfer of land by Hazel Nelson, deceased.

The applicants sought the solicitor’s file of James Turner, the lawyer who had prepared the will. Such a disclosure request is common, as the solicitor’s file notes or materials will often provide helpful evidence on the intentions of the deceased. Such evidence can assist the Court in determining the intention of the testator.

Counsel for James Turner, said that Turner could not disclose the contents of his file, without a court order directing Turner to do so, because to do otherwise would breach solicitor‑client privilege.

Counsel for Turner did acknowledge the “wills exception” to solicitor-client privilege, which posits that privilege may be overcome where such disclosure will help determine the true intentions of the testator. However, Mr. Turner argued that unless and until the court has first directed a trial of the issue of undue influence, the wills exception does not permit the disclosure order sought.

The applicants disagreed, and wanted the solicitor’s file released now, before the Court had decided whether to order  a trial. The applicants said that it was appropriate to disclose it now, because the solicitor’s file itself might reveal evidence which would assist the court in deciding whether to direct the trial of issues in the first place.

Outcome:

The Court agreed with the applicants and ordered the release of the solicitor’s file. The Court reasoned that to do so would further the interests of the deceased client because the evidence would help the Court ascertain what his or her true intentions were.

The Court did recognize that an applicant would need to show more than a mere allegation of undue influence. However, here, there was already significant evidence of undue influence that went beyond a mere allegation. The Court held that as long as there were credible allegations of undue influence, then the appropriate threshold to order disclosure, will have been satisfied:

[13] I do not disagree that there is an initial threshold requirement that should be met before a court orders production of a file that may be subject to solicitor-client privilege. However, that threshold requirement is not that this court must first decide whether or not to direct a trial of the issue regarding undue influence. The two‑step process argued for does not require that I first direct a trial of the issue of undue influence. So long as there are credible allegations of undue influence, as there are here, then in my opinion the appropriate threshold has been satisfied. The production, in advance of the decision whether or not to order trial of such an issue serves Foundational Rule 1-3(3)(a), which states:

(3) To achieve the purpose and intention of these rules, the parties shall, jointly and individually during an action:

(a) identify or make an application to identify the real issues in dispute and facilitate the quickest means of resolving the claim at the least expense; … .

The Court noted a number of reasons in favour of production of the file:

  1. Early disclosure of the file may significantly assist counsel on whether or not to order trial of the issue of undue influence;
  2. If all parties have this information early on in the process it may result in settlement;
  3. If not, it will surely serve the purposes of having the claim justly resolved in a timely and the most cost effective manner.

For all of the above reasons, the Court ordered that the file was to be disclosed forthwith.

Lesson offered by Nelson v Wagner:

To understand the full implications of Nelson, we must  understand the context of a will challenge under  Saskatchewan law.

Typically, the challenger of a will must go through a two step process:

  1. Stage 1: The challenger must show that their challenge has raised a genuine issue of capacity or coercion, and is not mere speculation or a fishing expedition;
  2. Stage 2: If the court finds there is a genuine issue, the court will set the challenge down for a trial process, to be determined by a trial.

In Saskatchewan, it is not uncommon for a defender of a disputed will, to initially resist giving up the solicitor’s file to a challenger. The defender (as occurred in Nelson) will argue that it is premature to disclose  the privileged will file, until the challenger has passed stage 1, and actually proven a genuine issue.

This position can raise difficulties for challengers, as it can pose a catch 22. If the most crucial evidence of incapacity or coercion may sometimes be in the solicitor’s file, how can the challenger best present their evidentiary case for stage 1, without first accessing the evidence in solicitor’s file.

Thus, Nelson clarifies that the challenger of a Will now has the opportunity to obtain the solicitor’s file, before they have satisfied stage 1. All that appears to be required is that the challenger simply provide evidence raising “credible allegations” of incapacity or undue influence.

Contacting a Lawyer on this Subject

James Steele’s preferred practise area is estate litigation, including will challenges, executor disputes, power of attorney issues, etc. Contact James Steele at 1-306-933-1338 or j.steele@rslaw.com. The above is for general information only, and not legal advice. Parties should always seek legal advice prior to taking action in specific situations.

Read more on our blog.

The Saskatchewan Estate Law blog is dedicated to providing practical, real-world information on Estate Law issues that affect Saskatchewan residents. The blog is written by RS lawyer, James Steele, whose practice focuses on estate litigation.

Saskatchewan Estate Litigation Update: McStay v Berta Estate, 2021 SKCA 51

A recent case from the Saskatchewan Court of Appeal, reminds us that a Chambers judge cannot decide conflicting evidence on the basis of affidavits. Rather, any weighing of credibility must wait for the later trial.

The case in McStay arose out of a will challenge.  Linda McStay applied for an order requiring her father’s will be proven in solemn form. She asserted that her father lacked testamentary capacity and was unduly influenced by the executor. Thus, she claimed his  will was invalid.

Solemn form refers to the legal proceeding which arises when a will is disputed. Instead simply probating the will automatically (which occurs for most non-contested wills), solemn form means that the will is examined by the Court in detail, to see if there is a genuine issue affecting the will.

Factual background:

Mihaly Berta (the testator) had been born in Hungary in 1957. Ms. McStay was the daughter of Mr. Berta’s first wife. Mr. Berta adopted her when she was seven or eight years old.

The family lived together until Mr. Berta and Ms. McStay’s mother divorced in 1997. Mr. Berta had no other children. Mr. Berta was divorced as of the date of his death and had no dependents.
Prior wills, including one executed in December of 2010, had named Ms. McStay as his executor and sole beneficiary. Mr. Berta and Ms. McStay had become estranged in 2013 and had not spoken in some years.

In 2017, Mr. Berta was diagnosed with terminal cancer and decided that, when the time came, he wished to use medical assistance in dying [MAID] to end his life in a dignified manner. The testator gave initial instructions to his solicitor, Darryl Lucke, for the drafting of a new will in August of 2017, but needed more time to consider the issues.

Mr. Lucke had been Mr. Berta’s solicitor since 2011. Mr. Lucke met with Mr. Berta at the Pasqua Hospital in April of 2018 and received additional instructions regarding the will, including a proposed distribution, but Mr. Berta had not yet come to a final conclusion with regard to the bequests he wished to make.

In May of 2018, Mr. Berta reconciled with Ms. McStay and then they spent considerable time together in the weeks prior to his death.

The making of the Will:

On May 22, 2018, Mr. Berta spoke with Mr. Lucke on the telephone and gave him further instructions regarding his will. As a result of those instructions, Mr. Lucke drafted a new will appointing a friend, Gregory Lipoth as his executor and setting out the following bequests:

  1. $25,000 to a friend who had provided care for him in his final days;
  2. 5% of his estate, to a maximum of $10,000, to another friend;
  3. 5% of his estate, to a maximum of $10,000, to another friend;
  4. 5% of his estate, to a maximum of $100,000, to his sister-in-law in Hungary, with $50,000 to be paid out immediately and the remainder at $5,000 per year;
  5. 5% of his estate, to a maximum of $100,000, to his brother in Hungary, with $50,000 to be paid out immediately and the remainder at $5,000 per year;
  6. 5% of his estate, to a maximum of $100,000, to Ms. McStay, in payments of $2,000 per month for 12 months, with the remaining $76,000 to be placed in a Registered Education Savings Plan for her children; and
  7. 5% of his estate to Mr. Lipoth, for the benefit of Mr. Lipoth’s children’s education.

The executor, in defending the will challenge brought by Ms. McStay, filed evidence relating to the testator’s capacity. For example:

  1. On the morning of May 24, 2018, a doctor at the Pasqua Hospital assessed Mr. Berta’s capacity for MAID and concluded that there were no concerns about his capacity for that purpose;
  2. Lucke attended to Mr. Berta’s bedside in the palliative care unit of the Pasqua Hospital for the signing of the will in the early afternoon on May 24, 2018. He averred that after Mr. Berta read the will, Mr. Lucke explained the provisions and confirmed that they were in accordance with his wishes. Mr. Berta then executed the will. Mr. Lucke’s legal assistant had attended the hospital with him and the two of them witnessed the will.

Decision before the Court of Queen’s Bench:

At the initial hearing in the Court of Queen’s Bench, the Court held that there was no genuine issue relating to capacity. Thus, she dismissed the challenge.

The Queen’s Bench justice found that the will made sense, and the testator had taken care in  crafting its provisions:

[35] The evidence establishes an earlier will from 2013 naming the applicant as executor and sole beneficiary. The notes taken by the lawyer drawing up the will explain the reason for a “basic will”. Thereafter, the testator and applicant were estranged. Beginning in the summer of 2017, the testator planned a new will, and settled on a new executor. The Executor was someone he had known for decades. He discussed his choice with his close friend, Alex Gedo, and with his lawyer. The testator was uncertain about the bequests and did not finally make any determinations for another nine months. When he did make his final determinations, he was facing death. He was in pain and on medication, but there is no evidence he did not understand what he was doing. On the contrary, the evidence shows the testator acted decisively and carefully.

[36] The bequests were consistent with a person taking care in determining “the nature and extent of his property, [and] the persons who are the natural objects of his bounty” (Kapacila Estate, para 33). The applicant is the testator’s daughter. She would expect to benefit, notwithstanding their estrangement. In fact, she did benefit.

[37] The Will also demonstrated an “orderly desire as to the disposition of [the testator’s] property” (Kapacila Estate, para 33). Everyone mentioned in the Will had a strong connection to the testator. The bequests went to four friends – three of whom the applicant does not object to – his brother, his sister-in-law and his daughter. The errors in the will were minor and do not raise a concern the testator did not know what he was signing.

[emphasis added]

The Court also found that there was no genuine issue relating  to undue influence:

[40] Presumptive undue influence is established “where the relations between the donor and donee have at or shortly before the execution of the gift been such as to raise a presumption that the donee had influence over the donor” (Culbert Estate at para 137). As stated by the Lawyer, the testator was “independent and strong-minded”. His doctors described him similarly. There is no suggestion the testator’s will was overborne by the Executor or anyone else. I do not find suspicious circumstances in the making of the Will.

Decision before the Court of Appeal: 

The Court of Appeal disagreed. It held that there were numerous aspects of the evidence that were controverted on material points. As a result, the Court of Appeal held, the only realistic option was a trial to determine the true facts.

Examples of these conflicts included the below:

  1. McStay visited Mr. Berta in the hospital twice on that day, once around noon and again later in the afternoon. She averred that he was heavily medicated and his behaviour was not consistent with his typical behaviour. She observed that he was sedated, not alert and kept dozing off. It was difficult to have a conversation with him. Thus, this conflicted with the evidence that the testator had been of wholly sound mind;
  2. McStay averred that Mr. Lipoth himself told her that he had many in-depth conversations with Mr. Berta about the will and the designated percentages and that Mr. Berta did not understand the percentages versus the dollar amounts (in short, Ms. McStay suggest that Mr. Lipoth may have been too involved in the making of the will, which he denied);
  3. There was a factual disagreement on just how close the testator had been to Mr. Lipoth (Ms. McStay suggested that they were not close, whereas Mr. Lipoth suggested that they were);
  4. The previous wills named Ms. McStay as the sole beneficiary and executor. However, the final will signed on May 24, 2018, was significantly different than the prior wills. The Court implied that this was a fact requiring further investigation.

From the above, the Court concluded that there  were conflicts on material issues:

[50]  As can be seen from the above examination of the evidence, there were significant conflicts regarding Mr. Berta’s mental state at the time the will was signed, his intentions, his relationship with his daughter and her children, his relationship with Mr. Lipoth and his children, the actions and role of Mr. Lipoth and the circumstances surrounding the making of the will. These are not mere contradictions on immaterial issues. There are major conflicts in relation to material issues that could affect a determination of capacity and undue influence. Despite these conflicts, the Chambers judge determined the evidence was overwhelming in favour of upholding the validity of the will. In the face of this controverted evidence on material issues, the only way she could have done so was by engaging in a weighing exercise by, inferentially, conducting an evaluation of credibility.

[emphasis added]

The Court held that the Queen’s Bench justice had engaged in an impermissible weighing of credibility, based on affidavit evidence. As the Court of Appeal held, the “conflicts in the evidence on material points were simply too pronounced to support a finding that there was no genuine issue for trial unless there were adverse findings of credibility.” (para 51) For  the Queen’s Bench justice to make “adverse findings of credibility” was impermissible  on the basis of affidavits.

As such, the appeal was allowed and a trial was directed, to prove the last will and testament in solemn form.

Ms. McStay received her costs of this appeal, payable from the estate, on a solicitor–client basis. However, the costs of the Queen’s Bench application were ordered to be costs in the cause. This meant that a future  trial court would decide if Ms. McStay should get her prior Queen’s Bench costs out of the estate.

Lesson learned:

McStay is an interesting decision for estate litigators. The evidence before the Court of Queen’s Bench, supporting the testator’s capacity and intent, appeared to be very strong evidence. It was not necessarily surprising that the Court of Queen’s Bench found no genuine issue requiring a trial.

After all, there is established case law reminding us that solemn form is a lengthy and expensive process and should not be entered into without sufficient foundation. Otherwise a substantial portion of an estate is at risk of being wasted in litigation. Moreover, the executor offered sworn evidence from a lawyer, and medical records, showing that the testator had sound mind. This is very powerful evidence from independent parties, and is not likely to change in any future trial.

Moreover, there was also evidence from friends of the testator that the testator had indicated his intention to name Mr. Lipoth as his executor, and leave money to Mr. Lipoth’s children, etc. (paras 37-38). It is difficult for a challenge to portray such intentions as being suspicious, when the deceased himself told others that these were his wishes.

However, there are no certainties for those who go to court, as McStay shows. Thus, the lesson appears to be that defenders of wills should be confident they have un-challenged evidence on all major factual issues. Otherwise, there is the chance that a Court may place the will into the expensive process of solemn form.

James Steele’s preferred practise area is estate litigation, including will challenges, executor disputes, power of attorney issues, etc. Contact James Steele at 1-306-933-1338 or j.steele@rslaw.com. The above is for general information only. Parties should always seek legal advice prior to taking action in specific situations. 

Read more on our blog.

The Saskatchewan Estate Law blog is dedicated to providing practical, real-world information on Estate Law issues that affect Saskatchewan residents. The blog is written by RS lawyer, James Steele, whose practice focuses on estate litigation.

The potential dangers of adding children as joint tenants

Many people like to add the name of a child, or children, to their home. The hope is to avoid probate fees on the death of the parent, and have the asset go directly to the children.

However, before you make this decision, be aware of the following potential danger:

  • First, if you later have a change of heart and do not wish to leave property to that child, it may be impossible to “undo” what you have done
  • Second, if the child who is now on title, attracts a judgement creditor, the judgement creditor may be entitled to go after the child’s share of the home

In short, sometimes circumstances cannot be controlled. Once you add a person to your title, you have given legal rights to that individual. Creditors will be entitled to rely on the legal position you create when you add a joint tenant.

James Steele’s preferred practise area is estate litigation. Contact James Steele at 1-306-933-1338 or j.steele@rslaw.com. The above is for general information only. Parties should always seek legal advice prior to taking action in specific situations. 

Read more on our blog.

The Saskatchewan Estate Law blog is dedicated to providing practical, real-world information on Estate Law issues that affect Saskatchewan residents. The blog is written by RS lawyer, James Steele, whose practice focuses on estate litigation.

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Saskatchewan Estate Litigation Update: Leier v Probe, 2021 SKQB 41 – Removal of an executor for failure to account

A recent case from the Saskatchewan Court of Queen’s Bench reminds us of the importance to always account for transactions made acting as a power of attorney, or, as an executor.

Leier v Probe involved an application by Christopher Leier, to remove Barrie Probe, as executor of the estate of Christopher’s mother, Margaret Leier. Christopher also sought an order to compel Barrie to provide a full accounting of Barrie’s administration of the Estate to date.

The facts may be summarized as follows:

  1. On April 19, 2013, Margaret executed an Enduring Power of Attorney [POA] appointing Barrie Probe as the attorney;
  2. On April 24, 2013, Margaret executed a will, appointing Barrie as executor and naming her son Jonathan Leieras the alternate executor;
  3. Under the POA, Barrie managed Margaret’s personal and financial affairs from 2013 to her death in July 2019;
  4. After Margaret’s death, Christopher’s lawyer requested a final accounting of Margaret’s affairs and the decisions Barrie made in executing his duties under the POA. When Barrie did not respond, the Public Guardian asked him to provide an accounting;
  5. What documents Barrie did eventually provide by way of an accounting were muddled and incomplete;
  6. The documents appeared to show that Barrie had used Margaret’s funds for Barrie’s own gain. Further, Barrie was not adequately able to provide records explaining  these transactions:
  1. Barrie took money out of Margaret’s account as a loan to Barrie’s daughter for the purchase of a house and another withdrawal was to effect repairs and renovations to the property;
  2. There was another loan agreement dated November 27, 2016 for $15,000, executed by Barrie as POA in Barrie’s daughter’s favour;
  3. Barrie also paid his daughter’s legal fees by a cheque drawn on Margaret’s account;
  4. On June 6, 2017, Barrie wrote himself a cheque for $50,000 drawn on Margaret’s account and another on June 9, 2017 for $120,000;
  5. There were numerous examples of accounting haziness for which Barrie had not offered explanations:
  1. Margaret’s credit card statements show that from August 20, 2016 to February 19, 2017, Barrie charged over $17,000 in purchases at stores such as The Home Depot, Fries Tallman Lumber, Rona, Canadian Tire, Kal-Tire, and Regina Battery Depot;
  2. In addition, for this time frame, Barrie drew cash advances of at least $1,100 on Margaret’s credit card without explanation;
  3. Margaret also owned a home on Salt Spring Island in British Columbia. Barrie stated that he spent possibly $20,000 on water and sewer issues on the house but did not adequately explain those repairs. The August 24, 2020 order directed he do so, but Barrie only provided documentation for invoices totalling $7,198.82;

The Court characterized the above as only a “small sample of discreet transactions that I find concerning or questionable”. In total, Christopher deposed that from 2013 to Margaret’s death in 2019, Barrie caused over $1,358,000 to be withdrawn from her account in the form of debit transactions, cheques, cash withdrawals or transfers.

In addition to the above transactions, the Court found  that Barrie had not faithfully fulfilled the terms of the Will.  Margaret stipulated that three of her four children were to receive $25,000 for their use absolutely. However, in relation to the share of one son, David, Barrie did not give him the $25,000 bequest.

David deposed that Barrie told David his share would be invested but he did not provide details. David said Barrie told him he would receive “a sum” every month. Since April 2020, David said he had received only $800.00. Such conduct by Barrie was not a proper distribution under the Will.

Removal of Barrie as executor:

Christopher argued that Barrie should be removed, as his conduct as Margaret’s POA prior to her death showed a lack of reasonable fidelity.

The Court held that if this were a situation that could be resolved by a simple disclosure of accounting records, an application to have Barrie removed was premature.

However, Christopher had already sought an accounting, and obtained disclosure orders against Barrie. In response, Barrie had simply failed to properly account for his transactions.   As such,  it appeared that no further court orders for disclosure would assist anything. Barrie had already had his chance to “explain” his transactions, and the reality was  that he simply could not explain many large transactions.

The Court concluded that Barrie had shown incredibly poor insight into his responsibilities as a POA.

The Court therefore found an adequate basis on which to remove Barrie as executor:

[23]           Barrie’s abdication of his accounting responsibilities relating to Margaret’s bank and visa accounts, together with the amounts withdrawn from those accounts are enough to raise red flags. His declared understanding of his responsibilities as executor of Margaret’s will (that he could invest the bequests as he saw fit rather than distribute them as Margaret directed) are further indicia of a lack of proper capacity to execute his duties and a want of reasonable fidelity.

[24]           While most of the evidence of a lack of fidelity relates to Barrie’s responsibilities as a POA, I find that it is enough to cause grave concerns as to Barrie’s capacity to execute his duties as executor. I am satisfied that the evidence here reveals Barrie’s want of the proper capacity to execute his duties and/or a want of reasonable fidelity as in accordance with the legal principles set out above. In my view, I am satisfied it is in the best interest of the estate that he should be removed as the executor of the Estate and I so order.

In summary, the Court ordered the below:

  1. Barrie was removed as the executor of the Estate;
  2. The Court revoked the letters probate and granted administration de bonis nonwith will annexed. It was ordered that Jonathan Leier be appointed as executor of Margaret’s estate without bond, and failing him, Christopher would act;
  3. Barrie was to prepare a full accounting of his administration of Margaret’s estate from the date of her death to the date of this order; and
  4. Barrie was ordered to personally pay the costs of this action to Christopher.

Lesson learned:

Leier offers a valuable reminder of the importance to always act in the interest of the grantor, or the deceased. If you act as power of attorney, or executor, you should never use the assets of the estate for your own self-interest. Moreover, executors and powers of attorney should also avoid co-mingling of funds (that is, personal monies with monies belonging to the adult).

If you do the above, and cannot provide a legitimate basis for your actions, you may well be removed from your position, and face stiff costs penalties.

 James Steele’s preferred practise area is estate litigation, including will challenges, executor disputes, power of attorney issues, etc. Contact James Steele at 1-306-933-1338 or j.steele@rslaw.com. The above is for general information only. Parties should always seek legal advice prior to taking action in specific situations. 

Robertson Stromberg announces the launch of the SK Estate Law blog

We are pleased to announce the launch of our new Estate Law blog.

The Saskatchewan Estate Law blog is dedicated to providing practical, real-world information on Estate Law issues that affect Saskatchewan residents.

The blog is written by RS lawyer, James Steele, whose practice focuses on estate litigation.

Check out the blog here and join the discussion.

 

Saskatchewan Estate Litigation Update

An interesting recent estate litigation decision out of Saskatchewan is Leason v Malcolm, 2020 SKQB 102.

Leason reminds us that once a  bequest is vested, it may not be divested. In other words, if a beneficiary survives the testator, but the beneficiary then dies before actually receiving their share of the estate, the  beneficiary’s estate will still be entitled to receive the share.

Background

In Leason, the deceased was one Donald Aronetz who died on September 9, 2018. At issue was a gift that his Will made to Jennie Leason. Jennie Leason then died on December 24, 2018, some 15 weeks after Mr. Aronetz had died.

Facts in Leason

Under estate administration law, the bequest to Jennie Leason in Mr. Aronetz’s will would have taken effect (would have vested) on the date of his death, September 9, 2018, when Jennie was still alive. Her subsequent death would have made no difference to that circumstance, and her share of the estate would be payable to her estate.

The bequest in Mr. Aronetz’s will, however, was unusally worded. It read as follows in paragraph 2:

2. … I gift my estate in equal shares unto any SURVIVING siblings, who at the present time are named as follows: (a) Jennie Leson [sic] …, (b) Anne Malcolm …, (c) John Aronetz …, (d) Lillian Whitfield …, (e) Mike Aronetz …, (f) Nick Aronetz …. In the event either of these siblings predecease me or die before having benefited in whole or in part from this my estate, I direct any such undistributed share shall NOT be redirected unto any spouse or child of such a deceased person, rather such an undistributed share shall be equally redistributed amongst the remaining SURVIVING siblings. I have not mentioned any other siblings who have already predeceased me, as this is consistent with my wishes to gift only unto surviving siblings.

[emphasis added]

The respondent applied for letters probate in Mr. Aronetz’s estate in December 2018, while Jennie Leason was still alive, and the executor of Mr. Aronetz included Ms. Leason in the list of beneficiaries of Mr. Aronetz’s estate. The executor however received the grant of letters probate in Mr. Aronetz’s estate in January 2019, after Ms. Leason had died. The executor had not distributed any part of the estate to Jennie before Jennie died.

The issue before the Court was whether the estate of Jennie Leason was a beneficiary of the estate of Donald James Aronetz.

In light of the above provision in paragraph 2 of Mr. Aronetz’s will, the executor of Mr. Aronetz’s estate took the position that Ms. Leason is no longer a beneficiary of Mr. Aronetz’s estate.

The Decision of the Court

The Court interpreted clause 2 above as providing for:

  1. a gift to vest on Aronetz’s death; and
  2. if there was a subsequent death of a beneficiary, before distribution, the gift would be divested.

The Court then turned to consider whether this testamentary intention should be enforced?

The Court held that such intention was contrary to the established legal principle that once a bequest is vested, it cannot be divested. As such, the above provision of Mr. Aronetz’s Will was not enforceable. The Court concluded as follows:

[30]         I conclude, then, that in law a testamentary direction that purports to reverse a gift that earlier had become effective is not enforceable. Put another way, a bequest once vested may not be divested.

[31]        The bequest to Jennie Leason, in Mr. Aronetz’s estate, was effective at the moment of Mr. Aronetz’s death. The gift vested – was de jure receivable – on his death. Ms. Leason’s subsequent death, before she actually received any part of the estate, does not affect the full vesting of her interest in the estate at the moment of Mr. Aronetz’s death. Mr. Aronetz’s direction that in such a circumstance Ms. Leason’s share should go to the other named beneficiaries, rather than to her estate, is not enforceable. 

As such, the Court held that the estate of Jennie Leason was indeed a beneficiary of the estate of Donald James Aronetz, and entitled to receive the gift as if the gift had in fact been distributed to Jennie during her lifetime.

Legal costs:

As an interesting aside,  the Court awarded full indemnity (dollar for dollar) legal  costs to both sides. Their full legal costs were thus payable out of the estate of Donald  Aronetz.

The Court noted the entire court application had been necessitated by the provisions of Mr. Aronetz’s will, and by no fault of the executor, nor the fault of the heirs of Jennie Leason. The Court held that it had been reasonable for the applicants to bring the application, and it was reasonable for the respondent to oppose it.

As such, Leason also serves as a reminder to ensure that a Will is carefully drafted. This will better avoid the risk that a court proceeding may be required to give effect to your Will (as such court application may dilute your estate through awards of legal costs).

 

James Steele’s preferred practise area is estate litigation, including will challenges, executor disputes, power of attorney issues, etc. Contact James Steele at 1-306-933-1338 or j.steele@rslaw.com. The above is for general information only. Parties should always seek legal advice prior to taking action in specific situations. 

Area of Expertise Estate Litigation