Saskatchewan Estate Litigation Update: Concentra Trust v Calvary United Church, 2024 SKKB 139

The recent Saskatchewan King’s Bench decision in Concentra Trust v Calvary United Church, displays the Court’s power to save a charitable gift in a Will, so that an estate gift still flows to another charitable object which closely resembles the testator’s original charitable object.

Background:
  1. Patricia Kisil passed away on May 1, 2020. Her Last Will and Testament (“Will”) was made November 27, 2013. According to her Will:
  1. Her cousin, Laura, was to receive 30 percent of the residue of her estate; and
  2. The remaining 70 percent was to be held and invested for the benefit of her son, David.
  1. While Laura survived Patricia, sadly David did not. Patricia’s Will provided a gift over if either Laura or David, or both of them, predeceased her.
  2. Specifically, David’s share was to be divided amongst a number of charitable institutions. Among these charitable gifts, was a gift of 10 percent of the Estate residue to Wesley United Church, located in Prince Albert, Saskatchewan, for the church’s unrestricted use.
  3. All of these charitable organizations were still operating at the time of Patricia’s death except for Wesley United Church. By the time Patricia died in May 2020, Wesley United Church had ceased operations. The land the church occupied on the corner of First Avenue East and 11th Street in Prince Albert had been sold to the YWCA.
  4. The final church service had been held in the church on June 24, 2018. Wesley United Church was disbanded as of November 12, 2018, by vote of the Tamarack Presbytery. Wesley United Church’s charitable status was revoked on June 15, 2019.
  5. At the time that Wesley United Church closed, the only other United Church in Prince Albert was Calvary United Church.
  6. A number of former parishioners of Wesley United Church, including Laura Carment, joined Calvary United Church. Patricia did not, as Patricia’s health was failing, and sometime in mid 2019, Patricia moved to Mont St. Joseph Home, a seniors’ care home in Prince Albert.
  7. Laura made no submissions on the application.
  8. Counsel for Calvary United Church made submissions on the application. In counsel’s view, the gift to Wesley United Church could be saved by the cy‑prèsdoctrine and should go to Calvary United Church. A number of the members from Wesley United Church moved to Calvary United Church and that church continued the work of Wesley United Church in the Prince Albert district.
Issue:

The issue was whether the gift which was originally intended to Wesley United Church, could be saved and go to Calvary United Church.

Decision of the Court of Appeal:

The Court held that the 10 percent residue gifted to Wesley United Church was properly given instead to Calvary United Church in Prince Albert, Saskatchewan. As a result, the gift did not fail and go to intestacy.

What is the cy‑prèsdoctrine:

It is useful to understand the function of the cy‑près

When a testator leaves a gift to a charitable institution which later ceases to exist, the gift would ordinarily lapse, and go on intestacy. Intestacy is a legal framework that governs if some property is left in an estate, and there is no provision in a Will (or no Will at all) that governs how to dispose of that specific property. In intestacy, the property will go to various categories of family members of the deceased, as such categories are set out in the Intestate Succession Act, 2019.

However, the law permits Courts to use the cy‑prèsdoctrine to avoid an intestacy, provided that certain conditions are met. This doctrine allows the court to compose a scheme that would save a charitable gift from failing. In order for the Court to apply the cy‑prèsdoctrine, two conditions must be established:

  1. That it is impossible, impractical or contrary to public policy to carry out the specific gift; and
  2. That the testator, in making the gift, had a general or overriding charitable intent.

If these two conditions are satisfied, then the Court has the discretion to order a cy‑prèsscheme that keeps as close as possible to the testator’s original object.

However, a charity cannot use the cy‑prèsdoctrine to vary the terms of a will to effect a different charitable purpose than that intended by the testator. Under the cy‑prèsdoctrine, the court’s discretion is limited to ordering a scheme as close as possible to the testator’s original object.

The Court held that the gift to Wesley United Church should instead be given to Calvary United Church:
The Court held that the gift to Wesley United Church should be given to Calvary United Church. The Court relied on the below grounds.

First, the Court was satisfied that Patricia had a general charitable intention behind the gift to Wesley United Church. First, if Patricia had intended to gift over either Laura’s or David’s share to the other, or to benefit any of her other relatives, Patricia could have so provided, but she did not do so. Instead, Patricia was clear that if either, or both, Laura and/or David predeceased her, their respective gift would go to a range of charities listed in the gift‑over provision of her Will.

Second, Patricia’s gift to Wesley United Church was not for a specific use but rather for the church’s unrestricted use, as the church chose to designate. By utilizing this wording, the Court held that Patricia was expressing a general charitable intention for the advancement of the religious doctrines espoused by the United Church of Canada, for the betterment of the Prince Albert community.

Third, the Court noted that there was nothing in the gift‑over provision directing what was to happen to the gift to Wesley United Church, if the gift to Wesley United Church lapsed.

Conclusion:

The Court concluded that there were no conditions attached to the gift to Wesley United Church. Thus, Patricia had a broad and general charitable intention that the funds provided to all of the charities listed, would be for the benefit of the Prince Albert community where Patricia had spent much of her life.

The Court held that the doctrine of cy‑prèstherefore applied, and that Calvary United Church was the most appropriate recipient of the gift to Wesley United Church.

23 …. In my view, the charitable organization that most closely parallels Patricia’s original intention in her gift to Wesley United Church is Calvary United Church. It is the only remaining United Church in the Prince Albert district and, it, through the advancement of the United Church faith, is working for the benefit of the people of Prince Albert and district, the same people Patricia intended to benefit by her gift to Wesley United Church.

The Court therefore made the below Order:

  1. The 10 percent residue payable to Wesley United Church in Prince Albert, Saskatchewan, set out in paragraphs 3(d)(v) of the Last Will and Testament of Patricia Kisil, dated November 27, 2013, shall be payable to the Calvary United Church in Prince Albert, Saskatchewan, for its unrestricted use.
  2. The Estate of Patricia Kisil shall pay costs of $2,500.00 to Calvary United Church and $1,000.00 to Living Skies Regional Council forthwith. No costs shall be payable by the Estate to the United Church of Canada.

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 [email protected]

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: Levesque v Klarenbach, 2024 SKKB 130

The recent Saskatchewan King’s Bench decision in Levesque v Klarenbach, offers a reminder of the limits that some judges may impose on an application to compel disclosure from a power of attorney.

Background:

The background of Levesque involved the below facts:

  1. Darlene Levesque had brought an originating notice of application requesting an order for significant and detailed disclosure from Debra Klarenbach;
  2. Levesque sought an accounting in the prescribed form, and cited ss. 18, 18.1 and 20 of The Powers of Attorney Act, 2002, SS 2002, c P‑20.3 (“Act”), in support. She also sought a significant amount of additional disclosure beyond the prescribed statutory accounting form. For this request, she relied on the inherent jurisdiction of the court;
  3. The parties were both daughters of Arne Fredrich Petersen (“Deceased”), who died on October 2, 2022. Ms. Klarenbach was one of the executors of his estate along with Denis Blain and Mervin Schneider, the Deceased’s longtime accountant and friend;
  4. On August 10, 2017, the Deceased executed a Power of Attorney naming Ms. Klarenbach as his Personal and Property Attorney (“2017 POA”);
  5. Klarenbach provided the 2017 POA to RBC on September 17, 2017, at which time she obtained access to the Deceased’s personal chequing account. Ms. Klarenbach states that September 17, 2017, is the appropriate date for the commencement of the accounting period as she took no action with respect to the 2017 POA prior to that date;
  6. The Deceased further instructed in all of his Power of Attorney documents that, in the event of incapacity, no one could request an accounting from his Personal and Property Attorneys. When Ms. Levesque contacted Ms. Klarenbach on November 9, 2017, demanding an accounting, Ms. Klarenbach refused as she had not been authorized to do so by the Deceased, and as the Deceased was not incapacitated;

The death of the Deceased:

  1. Following the death of the Deceased, the executors applied for a grant of probate. Letters Probate were issued on January 16, 2023;
  2. On January 27, 2023, Ms. Klarenbach received a letter from counsel for Ms. Levesque requesting a final accounting. Ms. Klarenbach provided the prescribed Form K Final Accounting sworn on April 4, 2023, for the period of September 17, 2017, to October 2, 2022. Ms. Klarenbach provided values for the Deceased’s assets at the beginning of the accounting period, including his personal chequing account, his real estate holdings, his corporations, his personal investment accounts, and other personal property;
  3. Levesque remained dissatisfied with the responses provided by Ms. Klarenbach;
  4. Levesque sought additional disclosure from Ms. Klarenbach, and Ms. Klarenbach refused. It is within this context that Ms. Levesque has commenced this action for an accounting and significant additional disclosure.
Issue:

The Court held that issues before it were:

  1. For what period of time was Ms. Klarenbach required to account?
  2. Was Ms. Klarenbach required to provide the additional documentation and/or information requested by Ms. Levesque, in light of all the circumstances?
Decision of the Court of Appeal:

Issue 1: For what period of time was Ms. Klarenbach required to account?

Levesque asserts that the accounting period should have commenced from July 19, 2017, as opposed to September 17, 2017, which was the date that Ms. Klarenbach asserted. July 19, 2017 was the date on which Ms. Levesque believed that the Deceased lost capacity.

The Court held that there was no question that Ms. Levesque was entitled to a prescribed Form K accounting (“Prescribed POA Accounting”). The Court however held that it was undisputed that Ms. Levesque had in fact already received that Prescribed POA Accounting.

The parties disagreed as to the relevant accounting period, and the Court accepted Ms. Klarenbach’s evidence in this regard. As such, Ms. Klarenbach was obligated to provide an accounting for the period, post-dating September 17, 2017, where Ms. Klarenbach acted as an attorney. She was not required to account for anything before that date.

The Court decided that it would not, despite the request of Ms. Levesque, require Ms. Klarenbach to provide an entirely new accounting to include the two additional months (from July 19, 2017 to September 17, 2017). The Court found that Ms. Klarenbach did not exercise her power of attorney during that two‑month period.

Issue 2: Was Ms. Klarenbach required to provide the additional documentation and/or information requested by Ms. Levesque, in light of all the circumstances?

The Court then turned to the next issue, being whether Ms. Klarenbach should be required to provide certain additional documentation and/or information requested by Ms. Levesque.

The additional documentation requested by Ms. Levesque is set out below (this list is taken from the decision in Levesque, at paragraph 19):

  1. That the Respondent shall provide to the Applicant, and any professionals retained by her, with an authorization to obtain, review and make copies and inquiries of the institutions or professionals holding documents of which the Deceased had an interest, including through his corporations, during the accounting period, specifically including but not limited to the following:

(a)   Bank statements and related cheques for the Deceased’s RBC personal chequing account no. 06278‑5658539 for July 19, 2017, to September 16, 2017;

(b)   Any other credit card statements, banking statements and copies of cheques not already disclosed for July 19, 2017 to September 16, 2017.

(c)   All investment statements from July 19, 2017, to October 2, 2022, inter alia:

(i)   RBC Dominion RIF account no. 38124040;

(ii)   RBC Dominion RIF account no. 38130219;

(iii)  RBC Dominion TFSA account no. 79273541; and

(iv)  RBC Dominion Investment account no. 76212392.

(d)   Financial statement [sic], minutes and resolutions, and documents supporting the dissolution of the Deceased’s corporation from 2017 until their dissolution, including those corporations identified as:

(i)   Elk Ridge Golf and Conference Ltd.;

(ii)   A.F.P. Holdings Ltd.;

(iii)  A. Petersen Investments Ltd.; and

(iv)  3080236 Nova Scotia Limited.

(e)   Minutes and written documents that arose from the advisory committee to manage the Deceased’s corporate affairs as formed by Mervin Schneider, Dennis Blaine, Robert Connoly, and the Applicant.

(f)   Any documents relating to the surrendering, payment or cancellation of any life insurance policy between July 19, 2017, to October 2, 2022.

(g)   Any documents relating to the transfer or surrendering of lands between July 19, 2017 to October 2, 2022.

(h)   Any receipts and invoices incurred on behalf or at the instruction of the Deceased by the Respondent from July 19, 2017 to October 2, 2022.

(i)   Any other documents that pertain to actions taken on behalf or at the instruction of the Deceased by the Respondent as personal and property attorney.

And that in doing so, the Respondent shall take reasonable efforts to answer any questions that may arise from the review of those records.

  1. To the extent that the documents requested at paragraph 2 are only held by the Respondent, that she shall provide the records and documents sought to the Applicant directly and shall take reasonable efforts to answer any questions that may arise from the review of those records.

Some context as to why additional information is often requested, may help us understand why Ms. Levesque asked for this additional information.

A Prescribed POA Accounting, is certainly of some help to persons investigating what went on while a given person acted as power of attorney. The Prescribed POA Accounting is helpful in that it provides information on the value of assets before and after actions were taken by the power of attorney.

However, a Prescribed POA Accounting is limited in what it provides. First, it is filled out by the power of attorney. Thus, if someone has concerns about the accuracy of the information being provided by the power of attorney, a Prescribed POA Accounting does not itself independently verify the information.

Second, there is often no substitute for obtaining third party records that are more detailed than the ledgers contained in a Prescribed POA Accounting. These third-party records may include tax returns, monthly bank records, cheque images, investment statements, insurance documents, receipts, etc. Such records contain much more detail about the assets of a person, what happened to those assets in detail, and they also offer the assurance that third party records may be independently verified by the institution producing them.

Here, however, the Court declined to order the additional information sought by Ms. Levesque. The Court held that there was an insufficient basis to justify the requested additional disclosure, which was “over and above what is required by statute”:

[24]    The applicant cites no statutory authority upon which the court could ground an order; she relies on “the inherent jurisdiction of the court” in making this request. This is a request for extensive disclosure, over and above what is required by statute, together with a positive obligation to explain that disclosure.

[25]   Too often, parties rely on “inherent jurisdiction” to support arguments they cannot otherwise articulate. The inherent jurisdiction of the court is not a panacea. Counsel cannot rely on it to request any remedy not specifically set out in a statute. It primarily relates to procedural matters and can be relied upon when it is required to administer justice. …

The Court also appeared to be unwilling to put Ms. Klarenbach to the effort of gathering up the additional information, if Ms. Levesque had not first provided tangible evidence of wrongdoing by Ms. Klarenbach:

[28]    An accounting by a power of attorney is an accounting for the actions of the attorney, not the actions of the grantee. Simply because Ms. Klarenbach was granted power of attorney during the lifetime of the Deceased does not require her to provide extensive disclosure of corporate documents under the control of the Deceased or explanations of business decisions made by the Deceased during his lifetime.

[30]    Having reviewed the accounting provided, Ms. Levesque points to no evidence of malfeasance or misappropriation of funds. This request appears to be a fishing expedition based on vague assertions and many assumptions. This application seems to have arisen out of Ms. Levesque’s belief that her father had more assets or funds than what appears in the estate, likely coupled with the difficult relationship between the sisters as evidenced by the email correspondence. The evidence before me does not support her belief. Ms. Levesque cannot seem to fathom that the size of the estate is not as large as she believes it to be, despite the explanations from Ms. Klarenbach and Mr. Schneider. Under the auspices of s. 18.1 of The Powers of Attorney Act, 2002 and the inherent jurisdiction of the court, she seeks granular details of the Deceased’s financial affairs to satisfy herself.

The counsel whose position was not successful in Levesque was good and experienced counsel. The outcome in Levesque therefore shows how difficult it can be to predict what a Court may do, on applications seeking disclosure from a power of attorney, which go above and beyond what is in a Prescribed POA Accounting.

The judicial reasons given in Levesque show that there exists a difficult balancing act between the genuine wishes of a family member to investigate concerns, and, the right of a power of attorney to avoid (what the Court described as) a “fishing expedition” based on assumptions but not evidence.

Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances. This article is not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.

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 [email protected]

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: Miller v Miller Estate, 2024 SKCA 70

The recent Saskatchewan Court of Appeal decision in Miller v Miller Estate, 2024 SKCA 70, confronted the issue of when a party, who seeks to appeal a decision made by a Chambers judge, first requires leave to appeal.

For context, in order to appeal certain decisions to the Court of Appeal, a party must first obtain leave to appeal. To obtain leave, this means that a party must first convince the Court of Appeal that a proposed appeal has enough potential merit, and importance, to justify consuming the resources of an appeal.

In Miller, a party wished to appeal an order which had held that a disputed will should be set down for trial. The Court of Appeal in Miller held that such an appeal first required leave to appeal. As the proposed appellant had not first obtained such leave to appeal, the Court of Appeal quashed the proposed appeal.

Background:

The background of Miller involved the below facts:

  1. This dispute arose out of a will challenge, brought in relation to the Estate of Sharon Miller (“Estate”);
  2. Sharon passed away in April of 2020. At the time of her death, she was divorced and had three adult sons, Darren, Troy, and Brad;
  3. Sharon had a will, which had been executed in November of 2017 (“Will”). Prior to making her will, Sharon had experienced some health difficulties; she had been diagnosed with cancer in 2016, and she had suffered a stroke in July of 2017;
  4. The Will appointed Troy and Brad as her executors. It also provided for Darren to receive an outsize portion of her Estate, as Darren would receive $120,000 and all of Sharon’s shares in a certain privately held corporation, while the residue of the Estate would be divided equally between Troy and Brad;
  5. After Sharon’s passing, Troy and Brad renounced their executorship, and Darren applied to be appointed as administrator of the Estate;
  6. Brad accepted the validity of the Will. Troy did not. Troy took the view that Sharon had lacked testamentary capacity at the time she executed the Will, due to the lingering effects of the stroke, and that she had been improperly influenced to leave Darren a disproportionately large share of her property. As such, Troy alleged that the Will was invalid;
  7. Accordingly, Troy filed an application, seeking an order directing that the Will be proven in solemn form;
  8. Solemn form refers to a more onerous process for determining if a Will is valid. The process of solemn form is used in cases of disputed wills, where the Court finds that there exists a genuine issue, of capacity or coercion, which requires a trial to resolve. A trial will permit each side to cross-examine each other, and test the evidence. For the vast majority of wills, which are not disputed, they are validated by unopposed probate applications, filed with the Court;
  9. In Saskatchewan law, a will challenge requires a two-stage process. In the first stage, the challenger must first show that there “is a genuine issue to be tried.” That is, the applicant must generally offer evidence that, if accepted at trial, would tend to negate testamentary capacity or establish undue influence. If a Court finds that the challenger has raised a genuine issue (stage 1), the Court will order (for stage 2) that a trial be held to actually determine credibility and make final rulings on whether the specific will is valid;
  10. Thus, at the first stage, Troy had to prove that there existed a genuine issue to be tried in relation to the Will. A Court of King’s Bench (“Chambers judge”) granted Troy’s application and directed that the Will be set down for trial, to determine if the Will was valid (“Chambers Decision”). The questions to be determined at trial, were the below:
  1. Whether, at the time of the execution of the Will, Sharon had testamentary capacity; and
  2. Whether, at the time of the execution of the Will, Sharon was subject to undue influence;
  1. Darren, in his capacity as administrator ad litem for the Estate, appealed from the Decision.
  2. The Estate (i.e. Darren) did not first seek leave to appeal from the Court of Appeal;
  3. As a result, Troy later applied to quash the appeal, taking the position that:
  1. The Estate first needed to obtain leave from the Court of Appeal, in order to appeal the decision of the Chambers judge; and
  2. The Estate had not first obtained leave, and thus the appeal should be quashed.
Issue:

There were two issues before the Court of Appeal:

  1. Issue 1: Was the Chambers Decision interlocutory and, as such, the Estate required leave in order to appeal it?
  2. Issue 2: If the Estate did need leave, should the Court of Appeal grant leave to the Estate retroactively?
Decision of the Court of Appeal:

Issue 1: Had the Estate been required to first obtain leave to appeal?

Appeals are creatures of statute. The right to appeal exists only where it is expressly provided by the governing statutory regime. The law provides that if a decision of the Court of King’s Bench decision is interlocutory, and not final, then an appellant needs to first obtain leave in order to appeal it.

This raises the question – how do you identify whether a decision is interlocutory, as compared to final? The Court of Appeal referred to prior decisions, and held that an “interlocutory” decision is one that does not decide the central issue in the proceeding, or finally determine the substantive merits of the dispute. In contrast, a “final” decision is one that does determine the rights of the parties in a final and binding way.

The Court held that the Chambers Decision was interlocutory, because it did not determine the substantive merits of the central matter at issue in the proceeding – the validity of the Will.

Rather, the Chambers Decision made a determination that merely set the stage for the future resolution of that issue.

Thus, as the Chambers Decision was interlocutory, that meant that the Estate should have first obtained leave to appeal.

Issue 2: Should leave to appeal be granted retroactively?

The Court next turned to determine if it should grant leave to appeal retroactively, or, as it is called, nunc pro tunc.

The Court determined that, to exercise this power, the Court must determine if the proposed appeal met the below two considerations:

  1. First: Was the proposed appeal of sufficient merit to warrant the attention of the Court of Appeal?
  2. Second: Was the proposed appeal of sufficient importance to the proceedings before the court, or to the field of practice or the state of the law, or to the administration of justice generally, to warrant determination by the Court of Appeal?

The Court in Miller held that the proposed appeal did not meet the test for a grant of leave, under the applicable test. The Court held that the proposed appeal had cleared the “merit” factor of the above test. The proposed appeal was not frivolous or vexatious.

However, on the second factor, the Court held that the matter at hand raised no new, controversial, or unusual issue of practice. The law concerning the test to order that a will be proven in solemn form was already well-settled, and the proposed appeal raised nothing new or uncertain in that regard. The Court further held that this proposed appeal did not have broader implications that transcended its particular circumstances.

Conclusion:

As a result, the Court of Appeal quashed the appeal brought by the Estate, on the basis that the Estate had failed to first obtain leave to appeal. Troy was awarded $2,000 in legal costs, payable by the Estate. As a result, the Estate was unable to pursue its appeal of the Chambers Decision.

The above is for general information only, and not legal advice. Parties should always seek legal advice prior to taking action in specific situations. 

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 [email protected]

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: Walker v Hunter, 2024 SKCA 34

This post discusses the recent decision of the Court of Appeal for Saskatchewan in Walker v Hunter, 2024 SKCA 34. This decision offers an illustration of when a lawsuit may be struck out, on the basis that it is statute barred (i.e. commenced too late). Such a decision is a reminder of the harsh legal consequences which can flow from a limitation period.

Background:

To understand the reasons of the Court, it is necessary to review the underlying background:

  1. This appeal related from a dispute between siblings relating to their potential entitlement to farmland once owned by their father, David Hunter, who died October 19, 1998, and his wife, Gloria Hunter, who died March 13, 2007;
  2. Gloria and David, had six children. Four of them alleged that certain land was held in trust. These parties were:
  1. Lynda Walker;
  2. Brian Hunter;
  3. Murry Hunter; and
  4. Velvet Clark.
    The above are the “Appellants”.
  1. A respondent party, who they sought a ruling against, was another sibling, Bruce Hunter.
  2. David and Gloria had a sixth child, Lorne Hunter, who died December 13, 2007. The executors of Lorne’s estate were also named as respondents. There were other various respondents as well;
  3. The historical context was that David and Gloria had acquired title to seven and one-half quarter sections of farmland while operating their family farm. Prior to his death, David transferred title to most of that farmland to the below:
  1. To himself, Lorne and Bruce, as joint tenants, or
  2. To himself, Gloria, Lorne and Bruce, as joint tenants; or
  3. David also transferred a small portion of the land to Bruce and Lorne as joint tenants.
  1. For that reason, when first David, then Gloria, and finally Lorne died, title to all these lands passed by way of survivorship to Bruce. These disputed lands are the “Lands”.
  2. In this way, Bruce, as the last survivor, finally acquired title to the subject Lands and, on April 1, 2008, transferred that title to himself and to Diane (Lorne Hunter’s surviving former wife) as joint tenants;
  3. On February 22, 2018 – more than nine years after the transfers to Bruce and Diane – Lynda, Brian, Murry and Velvet filed an originating application. It alleged that David had always intended that each of his six children should receive one quarter of Land, from the Lands, and that the Appellants had been wrongfully disinherited by Bruce;
  4. Lynda, Brian, Murry and Velvet alleged that David and Gloria intended that Bruce and Lorne would be entitled to continue to farm the Lands but only until they ceased farming, when it was to be shared equally between each of their six children;
  5. The originating application alleged that Bruce held the Lands in trust and that Bruce and Diane had been unjustly enriched;

Limitation period issue, and the Chambers Decision:

  1. On April 7, 2021, the respondents applied for a determination that the originating application had been commenced outside of the limitation period;
  2. In a fiat dated June 2, 2021, a judge of the Court of Queen’s Bench (“Chambers judge”) found that there was no evidence of fraudulent concealment as alleged by the Appellants and that the two‑year limitation period fixed by s. 5 of The Limitations Act, SS 2004, c L‑16.1 (“Act”) had expired in May 2010;
  3. The Chambers judge found that she did not need to determine if there was a resulting trust. She found only that if there was, it was breached on April 1, 2008, when the Lands were transferred to Bruce and Diane as tenants in common. The Chambers judge also held that, if there was such a trust, the breach was discovered by the Appellants on or about May 12, 2008, and that the two-year limitation period specified by 5 of the Act would accordingly have expired in the normal course in May 2010;
  4. In the result, the Chambers judge ordered that the originating application be struck;
  5. Lynda, Brian, Murry and Velvet appealed the Chambers decision, alleging that the Chambers judge erred in her identification of the test for fraudulent concealment under s. 17 of the Act;
  6. The Appellants also appealed on a separate issue, being that the Chambers judge had erred in dismissing their request for the respondents to provide an estate accounting in Estates of David Hunter and Gloria Hunter. That aspect of this decision is not discussed in this post.
Issue:

The primary issue on appeal was whether the limitation period had expired before the originating application was brought.

Decision of the Court of Appeal:

The Court of Appeal held that the limitation period had indeed expired, and thus the originating application in relation to the claim of breach of trust could not be maintained.

We begin by surveying what is a limitation period, and how it can be extended by any fraudulent concealment. Ordinarily, the Act provides that most claims must be brought within two years of a claimant discovering a number of things, including the below facts:

  1. That they have suffered loss;
  2. That it was caused by an act which is the subject of the claim; and
  3. That a legal proceeding would be an appropriate means to remedy this act.

However, the two-year limitation period can be extended if the proposed defendant has wilfully concealed certain things from the claimant, such as the fact that an injury occurred by the act of the defendant, or that a proceeding would be an appropriate means to remedy the injury.

Concealment

17 The limitation periods established by this Act or any other Act or regulation are suspended during any time in which the person against whom the claim is made:

(a) wilfully conceals from the claimant the fact that injury, loss or damage has occurred, that it was caused by or contributed to by an act or omission or that the act or omission was that of the person against whom the claim is made; or

(b) wilfully misleads the claimant as to the appropriateness of a proceeding as a means of remedying the injury, loss or damage.

The Court of Appeal took the opportunity in Walker, to outline what elements are required to show concealment and trigger the operation of s. 17. The Court in Walker held below:

[50] I am of the same opinion in relation to s. 17. Section 17 does not require that a special relationship exist between the party asserting the claim and the party alleged to have acted or failed to act in a manner that tolls a limitation period under this section. However, it does require proof that the wrongdoer wilfully concealed facts specified in s. 17(a) or wilfully concealed the appropriateness of a proceeding as described in s. 17(b). There is no additional requirement to establish unconscionability, and unconscionability absent such facts does not engage s. 17.

[emphasis added]

In passing, the Court of Appeal held that the Chambers judge had misstated the test for s. 17. However, the Court held that this misstatement of the test made no difference to the ultimate outcome. That is, under the facts in Walker, s. 17 was not triggered. This is what the Chambers judge also had found (albeit on the wrong test).

That means that the bottom line decision of the Chambers judge, on the limitation period issue, was correct. The Court of Appeal held that this was so for two reasons.

First, there simply was no evidence that Mr. Ernst, an executor of Lorne Hunter’s estate, had wilfully concealed materials facts from the Appellants, as the Appellants had alleged:

[52] However, the fact that the Chambers judge erred in this way does not mean that this appeal should be granted in relation to this issue. That is so for two reasons. First, as I have explained, the Chambers judge held that, regardless of whether there was a resulting trust that created a special relationship, “without evidence that Mr. Ernst wilfully concealed from the applicants the possibility of a resulting trust, there can be no basis to claim that fraudulent or wilful concealment arose so as to suspend the limitation period”. She also held that there was not only “no evidence to suggest that Mr. Ernst wilfully concealed the possibility of a resulting trust” but also “no evidence of Mr. Ernst’s intention whatsoever” (at para 42).

Second, the Court of Appeal held that the record showed that the Appellants knew or ought to have known all of the things, needed to bring a claim, in 2008. This knowledge, back in 2008, meant that s. 17 could not avail them. The Court of Appeal held that s. 17 does not suspend the operation of a limitation period, if the claimant already knows the material facts needed to trigger the limitation period:

[58] I agree with this reasoning. The fact that the appellants knew or ought to have known all of the things listed in s. 6(1) in 2008 meant that s. 17 could not avail them. Section 17, like the equitable doctrine, does not suspend the operation of a limitation period from the day the potential claimant knew or, absent concealment within the meaning of s. 17, ought to have known of the matters listed in s. 6(1).

Conclusion:

The Court of Appeal upheld the decision of the Chambers judge on the limitation period, and found that the application relating to the alleged breach of trust, was statute barred.:

[63] In the result, I have concluded that the Chambers judge erred in law as to the interpretation of s. 17 of the Act. However, that error had no effect on her decision to strike the originating application as it related to the claim for relief based on an alleged breach of trust. The Chambers judge did not err in finding that the limitation period relating to that claim had expired, as there was no wilful act or omission within the meaning of s. 17. The appeal of the decision to strike the originating application in relation to the trust claim must accordingly be dismissed.

[emphasis added]

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 [email protected]

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: Haines v Kuffner Estate, 2024 SKKB 51

The recent Saskatchewan King’s Bench decision in Haines v Kuffner Estate is an example of the Court’s ability to validate a document, which may not have been executed with all the normal formalities. This flexibility offers the ability to ensure, as far as possible, that the testamentary wishes of a dying person are upheld.

Background:

The background of Haines involved the below facts:

  1. The deceased was Kim Kuffner (“Deceased”). The Deceased, while hospitalized and near death, sent a message (“Message”) on her iPad to her siblings, which she titled “My holographic will;”
  2. This Message named an executor, being Rheanne Haines, and provided instructions for the distribution of the Deceased’s estate. The Message read as follows:

My holographic will

Rheanne Haines to be executor.

House and contents to Ryan Haines.

Balance of investments to be split 60% to Ryan Haines and 40% to Rheanne Haines. Rheanne to be pet guardian.

May 19, 2023. Kim Kuffner

  1. The Deceased had no previous will, spouse, or children.
  2. Ordinarily, a Will is either typed (and signed before witnesses), or made in holographic fashion, in which it is entirely written in the handwriting of the testator. Here, the Message was sent when the Deceased was too weak to write or speak but could use an iPad with a stylus;
  3. Shortly after sending the Message, the Deceased was intubated and became unconscious. She died on May 21, 2023, shortly after sending the Message;
  4. Rheanne searched the Deceased’s home and did not discover any other testamentary documents or any previous Last Will and Testament;
  5. The Deceased was never married and had no children. She had three siblings: Wayne, Brenda, and Carol Haines, who was the mother of Rheanne and Ryan, and who died on February 10, 2024.
Issue:

The issue was whether the Message should be declared the Deceased’s Last Will and Testament, despite it not being executed in complete compliance with the formal requirements of The Wills Act, 1996.

Ruling:

What is s. 37 of The Wills Act, 1996:

37 is a provision which allows the Court to “cure” a technical issue relating to a testamentary document. The provision reads below:

Substantial compliance

37 The court may, notwithstanding that a document or writing was not executed in compliance with all the formal requirements imposed by this Act, order that the document or writing be fully effective as though it had been properly executed as the will of the deceased or as the revocation, alteration or revival of the will of the deceased or of the testamentary intention embodied in that other document, where a court, on application is satisfied that the document or writing embodies:

  1. the testamentary intentions of a deceased; or
  2. the intention of a deceased to revoke, alter or revive a will of the deceased or the testamentary intentions of the deceased embodied in a document other than a will.

Prior case law makes clear that 37should be broadly interpreted to enable courts to validate a testamentary document even where there is imperfect compliance with the formal requirements under The Wills Act, 1996.

The test to trigger the operation of s. 37 involved the below two considerations:

  1. The first factor is whether the document is testamentary in nature. In other words, does the document disclose the person’s testamentary intention, as to how they wish to dispose of their property upon death;
  2. The second factor is whether the document represents a deceased’s final wishes. Put another way, is the document embodying a fixed and final intention, and not a mere draft embodying a temporary or inconclusive expression of their intention.

Ruling in Haines v Kuffner Estate:

The Court noted that there was no opposition to the application before the court. All parties agreed that the Message represented the Deceased’s testamentary intention.

The Court in Haines held that the Message was deemed to be the Last Will and Testament of the deceased, Kim Kuffner, pursuant to s. 37 of The Wills Act, 1996. As a result, the applicant was allowed to apply for letters probate, using the Message as a testamentary document.

The Court found that the Message sent by the Deceased to her siblings was testamentary in nature and represented her deliberate and final intentions regarding the disposition of her estate.

The Court relied on the below grounds:

  1. The Message began with “My holographic will;”
  2. It named an executor;
  3. It named a Pet guardian;
  4. It provided specific instructions for the distribution of her assets; and
  5. It concluded with the date and her name.

Separately, the Court also noted that there was no dispute that the messages received by Brenda and Wayne, and appended to their affidavits, were sent by the Deceased from the Deceased’s device.

Further, there was no evidence that the Deceased was confused or otherwise suffering from a decline in her cognitive ability at the time she sent the Message to Brenda and Wayne setting out her last wishes. In fact, her messages revealed clarity of thought and an awareness that her death was imminent:

34 There is nothing unclear in the message about Kim’s testamentary intentions. Although she could no longer write, and thus the formal requirements of the Act respecting a holographic will were not met, I conclude that the message is testamentary in nature and that it represents Kim’s deliberate and final intentions as to the disposition of her estate.

The Court recognized that s. 37 should be broadly interpreted to validate a will even without compliance with formal requirements.

The Court also held that the applicant was entitled to solicitor-client costs of the application payable by the estate of the Deceased. It is suggested that such was a proper order, in that any legal fees incurred in this application, would benefit the entire Estate (by obtaining certainty on how to distribute the Estate).

Conclusion:

Haines is a reminder that a Court should generally be focused on substance, over technical form, when it comes to validating a testamentary document.

Here, the Message did not meet the formal or technical requirements of a valid will. However, the Court was satisfied that the Message embodied the testator’s true intentions behind the document, even if the form was faulty.

Haines also recognized that in this day and age, technology is a vital method of communication for many persons. As such, a broad interpretation of s. 37 that recognizes this modern reality, is crucial:

[36]           The broad interpretation of  37of the Actis responsive to the modern reality that for some people, their only means of communication is through electronic devices. Here, it was the only means available to Kim who was near death, too weak to write or speak. In this case, an inflexible interpretation and application of s. 37 would have denied Kim the agency to direct how her estate was to be disposed of.

Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances. This article is not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.

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 [email protected]

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 Emergence of Indigenous Court Systems: Planting the Seeds for a Métis Court in Saskatchewan

In recent years, there has been an emergence of Indigenous-led justice systems across Canada and the world. In 2016, the Mohawk Band Council of Akwesasne introduced what is considered the first court in Canada for and by Indigenous people.[1] Similarly, other Indigenous-led justice systems have begun to develop across the country, such as the BC First Nations Justice Strategy and the Court of Kahnawà:ke, which considers an array of legal disputes, including summary conviction offences, contested traffic tickets, and traditional laws.[2]

A Métis Judiciary in Saskatchewan

These trailblazing developments have inspired the Métis-Nation of Saskatchewan (“MN-S”) to begin the development of a Métis Judicial System (i.e., “Métis Kwayaskastasowin Judiciary”; “Tribunal”; “Court”; or “Body”) within the province.

What Does this Mean for Saskatchewan?

The current development of a Métis Judiciary in Saskatchewan leaves many Métis people, legal professionals, and the general public curious about how this body will operate in practice alongside the existing Canadian legal system.

Last summer, Sophia Lagimodiere and Kristian St. Onge were honoured to be invited, amongst a well-rounded group of Métis people in Saskatoon, to participate in and consult at a prototyping workshop on the new body. Moreover, on May 26, 2024, they virtually attended the MN-S Legislative Assembly, where Marilyn Poitras, the Principal Designer for the project, released a report updating the public on the status of the Métis Judiciary.

As discussed by Poitras, the Métis Judiciary is a dispute resolution alternative to the traditional court system. It would not replace the province’s current judicial system; rather, it hopes to provide further access to justice by tailoring itself to the unique needs and experience of Métis people. Furthermore, the Métis Judiciary aims to be independent from the political arm of MN-S.

This holistic body would be governed by the constitution of the MN-S, which governs Métis elections, citizenship, and harvesting disputes. Future matters that it is likely to preside over include MN- S laws, like specific harvesting matters, as well as divered criminal matters, sentencing, and disposition diversion. Recent developments, such as Bill C-92 and agreements between MN-S and the Federal Government, foreshadow that Métis Child and Family Services matters will also likely fall under the jurisdiction of the Métis Judiciary. Aside from helping to resolve disputes, the Judiciary will also include Education Programs, Swearing-In Ceremonies, Civil Marriages, and Adoptions.

What makes the Métis Judiciary particularly unique is that it is not lawyer-centered; it is for Métis people, by Métis people. Disputes plan to be adjudicated through a panel of 1 Métis Judge, 1 Elder, and 1 Youth. The resolution process would begin with a Facilitation Panel and, where needed, go to a Hearing Panel. Voting would be unanimous, but where a decision cannot be made, the majority rules.

Additionally, those eligible to use it may choose to be represented by whomever they feel most comfortable speaking to their interests in the resolution process, whether that be a Métis lawyer, family member, Elder, or other professional. It has community inclusion at its core.

While the Métis Judiciary development is still in its infancy, it poses an interesting time for Métis people, legal professionals, and the general public to reflect on how alternative dispute resolution opportunities can facilitate greater access to justice.

Please reach out if you have inquiries regarding this subject matter, and we would be more than happy to assist. 

[1] Giuseppe Valiante, “Akewasne creates first court in Canada for and by Indigenous people”, CBC News (October 2, 2016), online: <https://www.cbc.ca/news/canada/montreal/akwesasne-indigenous-court-canada-1.3787969>.

[2] Angelique EagleWoman (Wambdi A. Was’teWinyan), “Envisioning Indigenous Community Courts to Realize Justice in Canada for First Nations” (2019) 56:3 Alberta Law Review 669 at 669.

Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances. This article is not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.

About the Author

Sophia Lagimodiere is a Student at Law at Robertson Stromberg LLP. She received her Juris Doctor degree from the University of Saskatchewan in 2023. She also holds a Bachelor of Arts (High Honours) in Political Studies with a Minor in Psychology from the University of Saskatchewan (2020).

Related News and Articles

Do you need a development permit?

Land is zoned to regulate development, ensure public health and safety, and promote the general welfare of the community. The Planning and Development Act (the “PDA”) gives local governing bodies the authority to oversee the planning process. Zoning bylaws dictate the...

read more

Protecting Estate Inheritances from Family Law Claims

Most parents intend to leave at least a portion of their estates to their children. What some parents may not realize is that the inheritance they leave their children could turn into “divisible family property” down the road in the event a child’s spousal...

read more

Articles & Research