Benefield et al. v. Hrenko Estate, 2001 ABQB 242

• Judge: Bensler, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: March 26, 2001
• Citations: 2001 ABQB 242;(2001), 287 A.R. 33 (QB)

Benefield v. Hrenko Estate (2001), 287 A.R. 33 (QB)

MLB headnote and full text

Temp. Cite: [2001] A.R. TBEd. AP.063

Elizabeth Benefield and Frances Moss (applicants) v. The Public Trustee for the Province of Alberta Administrator of the Estate of Frank Hrenko, deceased, Jozsef Hrenko, Pal Hrenko and Laszlo Hrenko (respondents)

(Action No. 89819; 2001 ABQB 242)

Indexed As: Benefield et al. v. Hrenko Estate

Alberta Court of Queen's Bench

Judicial District of Calgary

Bensler, J.

March 26, 2001.

Summary:

Hrenko died intestate. Hrenko's biological children, who had been adopted by their mother and stepfather, applied for a declaration that they were the "issue" of Hrenko under the Intestate Succession Act and, accordingly, were entitled to share equally in the intestacy.

The Alberta Court of Queen's Bench dismissed the application.

Devolution of Estates - Topic 446

Devolution - General - Children - Effect of adoption - Section 4 of the Intestate Succession Act provided that "[i]f an intestate dies leaving issue, the estate shall be distributed, subject to the rights of the surviving spouse, per stirpes among the issue." - Section 1(b) defined "issue" as including "all lawful lineal descendants of the ancestor" - Section 65(2) of the Child Welfare Act provided that "... for all purposes when an adoption order is made the adopted child ceases to be the child of his previous parents, whether his biological mother and biological father or his adopting parents under a previous adoption order, and his previous parents cease to be his parents and guardians." - The Alberta Court of Queen's Bench held that "issue" described the legal status of adopted persons as created by the Child Welfare Act - Accordingly, adopted children did not share in an intestacy of their biological parents.

Words and Phrases

Issue - The Alberta Court of Queen's Bench considered the meaning of "issue" as used in the Intestate Succession Act, R.S.A. 1980, c. I-9.

Cases Noticed:

Kowbel Estate, Re; Cooperative Trust Company of Canada v. Administrator of Estates for Saskatchewan and Saskatchewan Department of Social Services, [1984] 1 W.W.R. 47; 27 Sask.R. 65 (Q.B.), not folld. [para. 10].

Matthews Estate, Re (1992), 126 A.R. 287; 1 Alta. L.R.(3d) 198 (Q.B.), agreed with [para. 11].

Oliphant Estate, Re (1990), 84 Sask.R. 44 (Q.B.), refd to. [para. 11].

Mernickle v. Westaway, [1986] 3 W.W.R. 665 (B.C.C.A.), agreed with [para. 11].

Statutes Noticed:

Child Welfare Act, R.S.A. 1988, c. 15, sect. 65(2), sect. 65(4) [para. 9].

Intestate Succession Act, R.S.A. 1980, c. I-9, sect. 1(b) [para. 8]; sect. 4 [para. 7].

Authors and Works Noticed:

Driedger, Elmer A., Construction of Statutes (3rd Ed. 1994), p. 245 [para. 24].

Counsel:

Wade D. Clark, for the applicants;

Roy D. Boettger, Q.C., for the respondents Jozsef Hrenko and Laszlo Hrenko.

This application was heard by Bensler, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following reasons for judgment on March 26, 2001.